Hamid Farooq Durrani, J.--This Constitution petition arises out of a remand order passed on 19.4.2006 by the learned Additional District Judge, Abbottabad in Rent Appeal No, 01/RC of 2006.
The learned appellate Court, while deciding the matter observed that the Rent Controller ought to have determined "whether disputed shops fell within the sphere of ownership of respondent (landlord) as a purchaser from one Mst. Bilquees or the said ownership vested in the Central Government. In the wake of the above, the Rent Controller should have discussed the issues relating to estoppel, incompetence and relationship of landlord and tenant".
2. The facts relevant for the purpose of petition in hand are that the petitioner filed an application for ejectment of Respondent No, 1 from the shop situated near Karimpura Masjid, Link Rod% Abbottabad on the ground of personal need for the use and occupation of son of the petitioner.
The default in payment of rent by the respondent was also taken as a ground in the said ejectment petition. The respondent joined the proceedings by filing his written reply wherein the relationship of landlord and tenant between the parties was duly admitted. It was, however, refuted that respondent was a defaulter of rent. It was claimed that the respondent had paid a sum of Rs, 20,000/- as security to the previous owner. The respondent further averred that the petitioner, in addition to the property in dispute, owned other, considerable property which could be vacated for the personal need of the petitioner and that the petition against the respondent was mala fide with the sole purpose to have the monthly rent enhanced.
3. It was on 29.5.2003 that the learned Rent Controller, on allowing the ejectment petition, ordered the eviction of the Respondent No, 1 from the shop in dispute. The Respondent No, 1, aggrieved from the order of his ejectment, filed an appeal which was allowed by the learned Additional District Judge, Abbottabad on 4.5.2004 and the matter was remanded to the learned Rent Controller for deciding it afresh. In view of the learned Appellate Court the impugned order was a non-speaking one.
4. During post remand proceedings the Respondent No, 1, on 7.10.2004, submitted an application before the learned Rent Controller for consigning the ejectment petition without taking further proceeding on the ground that the Deputy Settlement Commissioner, Abbottabad, had issued notice to the Respondent No, 1 whereby required the letter not to pay/tender rent of the disputed shop to any person as the land underneath the disputed shop was owned by the Central Government. It was further revealed through the said notice that an inquiry was in progress regarding the said fact. The Respondent No, 1 also stated in the application that the ownership of the petitioner regarding the shop in dispute, had become under question therefore, the ejectment 'proceedings against the Respondent No, 1 had to be consigned. The said application was, however, dismissed by the learned Rent Controller on 18.1.2005. Aggrieved from the order of dismissal, the Respondent No, 1 filed an appeal which met the same fate and was declined on 5.7.2007. On 29.11.2005, the Respondent No, 1 repeated similar application, however, with a different prayer in terms of permission for amendment in his written reply filed in response to the ejectment petition on 1.7.2002. The grounds taken in the said application were almost verbatim to those mentioned in previous application which already stood dismissed. The later application for amendment of pleading was also disallowed on 21.2.2006, through a separate order while deciding the ejectment petition in favour of the petitioner. An appeal against the ejectment order was filed which resulted in the order impugned through the writ petition in hand.
5. Learned counsel for the parties heard and available record including written statement filed by Respondent No, 1, perused.
6. It is noticeable that the application for consignment of the ejectment petition was filed by Respondent No, 1 during the proceedings as entertained by the learned Rent Controller against him wherein the relationship of landlord and tenant was duly and unequivocally admitted by the Respondent No,
1. The said application was rejected through a reasoned order passed by the learned Rent Controller and was affirmed by the learned Appellate Court. A similar exercise was under taken by the respondent again at the fag end of the trial in ejectment petition wherein an amendment of his written reply was sought. The record shows that the amendment so sought was pressed on the strength of the notice by the Deputy Settlement Commissioner Abbottabad indicating the claim of the Central Government in respect of property in dispute. The contents of said notice transpired that the alleged dispute was between the petitioner and the Settlement Authorities. It is pertinent to note that the order passed by DDO/(R&E) Abbottabad in that regard was set aside by the Appellate Authority in due course. The said notice and the ensuing proceedings, therefore, did not affect the rights and obligations of Respondent No, 1 in his capacity as a tenant of the petitioner in disputed property. Besides, the matter agitated before the Rent Controller was finally set at rest by the appellate Court on 5.7.2005. The same could not have been re-agitated at the stage of conclusion of the ejectment proceedings. It also did not lie in the mouth of Respondent No, 1 to reprobate his relationship of a tenant towards the petitioner.
7. The record divulges that there was ample evidence before the learned Appellate Court while passing the impugned order in appeal. That Appellate Court was not within its jurisdiction to have remanded the matter to the Rent Controller with the observations for re-opening the controversy between the parties regarding the issue of alleged defect in the title of petitioner in respect of disputed property. Once the relationship of landlord and tenant was admitted by Respondent No, 1, he could not question the title of the landlord/petitioner without first surrendering the possession of the disputed premises in favour of the landlord. Reliance in this regard is placed on. a judgment reported as PLD 1992 Supreme Court 401. The learned Appellate Court, in the circumstances, should have proceeded to decide the appeal on merits of the case instead of passing a remand order.
8. In the light of the above we are constrained to allow the petition in hand and to hold that the impugned order/judgment dated 19.4.2006 passed by the learned Addl. District Judge(1), Abbottabad is without lawful authority and of no legal effect. The same is set aide with the observations that the learned Appellate Court should proceed with the appeal and decide the same on its merits canvassing the entire controversy between the parties while keeping in view the contents of instant judgment.