MUHAMMAD HUSSAIN and others vs NIAZ AHMAD and others

ALI HUSSAIN QAZILBASH, J.--Leave in this case was granted to consider: "(1) Whether the High Court could have interfered in this rent matter on the question of finding of fact regarding relationship of landlord and tenant; and,

(2) Whether it was a fit case for remand in exercise of the same jurisdiction."

2. The facts very briefly are that the appellants filed an ejectment petition against respondent No,1 in respect of one room out of property No,183, R.A. Bazar, Lahore. It was alleged in. The petition that the appellants were transferees of the said property, they issued notice to the respondent under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for the payment of the rent which the respondent failed to do, and thus rendered himself liable to ejectment. In the written statement filed by the respondent, his case was that the room in dispute is a store-room of Shop No,34, R.A. Bazar, Lahore, and the whole shop has been transferred to him and thus he is not a tenant under the appellants.

3. As a result of the pleadings, the following issues were framed by the learned trial Court: "(1) Whether relationship of landlord and tenant exists between the parties.

(2) Whether the respondent has been served with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act.

(3) Whether the respondent has lost the protection of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act."

(4) Relief."

' The learned trial Court after recording the evidence produced by the parties decided all the issues in favour of the appellants and thus ordered the ejectment of the respondent from the said room, vide his order, dated 9-5-1979. The matter was taken in appeal by the respondent before the District Judge but the same was also dismissed on 21-1-1985. In the writ petition before the High Court, the respondent, however, succeeded in getting reversal of the orders of the Courts below, as per order, dated 16-6-1982, the judgments of the Courts below were set aside and the case was remanded to the Rent Controller for decision afresh.

4. The learned counsel for the parties heard and the record perused. The learned Single Judge while accepting the writ petition observed: "Resultantly, I accept this writ petition, set aside the orders of the two tribunals below and send back the case to the learned Rent Controller with the direction that he shall allow the parties to produce additional evidence regarding the genuineness or otherwise of the documents Exhs. R.3, R.4 and R.S. He shall also record additional evidence of the parties regarding the area of the house and the shop in question with and without the room in dispute or appoint a local commissioner to find out their areas. After doing this, he shall re-decide the ejectment application by taking into consideration the evidence already on the record and the additional evidence and the local commissioner's report, if any. Since the parties have been litigating for a long time the learned Rent Controller shall decide the case afresh before the coming summer vacation."

After considering the arguments of the learned counsel in the light of the above, we think that the order of remand is unexceptionable in that a correct decision as to the properties transferred to the parties cannot be arrived at unless the genuineness of the documents referred to by the learned Single Judge is determined and also the areas of the properties mentioned therein is worked out by recording additional evidence.

5. The appeal fails and is hereby dismissed with no order as to costs.