' MIAN HAMID FAROOQ, J.- Instant appeal, by leave of the Court, proceeded against order dated 26- 8-2008, whereby the learned Lahore High Court, Multan Bench, Multan allowed respondents' second rent appeal S.A.O. No,3 of 2008 and remanded the case to the learned trial Court in the following manner:-- "Without commenting upon the facts of the instant ejectment petition, the appeal is allowed and the case is remanded to the learned trial Court/Civil Court where the application under section 12(2), C.P.C. Filed by the respondents is pending while setting aside the judgment passed by the learned Courts below. The learned District Judge may pass an appropriate order for sending the case to the same Court where the application under section 12(2), C.P.C. Is pending adjudication."
2. Leave granting order, dated 14-1-2009, which contained the facts of the case and the questions on which leave was granted, reads as under:--- "Petitioners seek leave to appeal against order, dated 26-8-2008, whereby the learned Lahore High Court, Multan Bench, Multan allowed respondents' second rent appeal (S.A.O. No,3 of 2008) and remanded the case to the learned trial Court.
(2) Raees Ahmed, the predecessor-in-interest of the petitioners, preferred an ejectment petition seeking eviction of Muhammad Ishtiaq, the predecessor-in-interest of the respondents, from Shop No,81, Ward No,2, Circular Road, Hussain Agahi opposite Mehfil Cinema, Multan on the ground of default in payment of rent since November, 1999 and for causing damage to the property. During pendency of the ejectment petition, Raees Ahmed died, however, his legal heirs were brought on record. Ejectment petition was resisted by the opposite party. An ex parte decree dated 2-4-2002 declaring the rent deed, dated 1-4-1999, allegedly executed between the parties, as null and void was passed in favour of Muhammad Ishtiaq and on the basis of said decree it was pleaded before the learned Rent Controller that no relationship of landlord and tenant exists between the parties. It may be noted that the petitioners filed an application under section 12(2), Cr.P.C. Challenging the said ex parte decree, which is pending. The learned Rent Controller framed the following issues:---
(i) Whether the relationship of landlord and tenant exists between the parties? OPA
(ii) Deleted
(iii) Whether the respondents are defaulter in payment of rental amount from November, 1999 to date? OPA
(iv) Whether the respondent has used the disputed premises carelessly and had decreased its value? OPA
(v) Whether the document dated 1-10-1999 is fictitious and bogus? OPR
(vi) Whether the petitioner has brought this petition as a revenge of criminal case F.I.R. No,62 of 2000? OPR
(vii) Whether the petitioner has no cause of action to bring this suit? OPR
(viii) Whether the respondent is entitled to recover special cost under section 35-A, C.P.C.? OPR
(ix) Relief.
' At one stage, the learned Rent Controller, on the basis of ex parte decree, dated 2-4-2002, held that relationship of landlord and tenant does not exist between the parties and thus he dismissed the ejectment petition, vide order, dated 28-4-2003. Upon filing of an appeal by the petitioners, the said order was set aside and the case was remanded by the learned Additional District Judge to the learned Rent Controller, vide order, dated 1-10-2003. In the post remand proceedings, the learned Rent Controller recorded statements of witnesses produced by the petitioners, however, those were, statedly, not cross-examined by the respondents and their right to cross-examine was closed, which order was affirmed when respondents' review petition was dismissed on 22-1-2007. In the ultimate analysis the learned Rent Controller accepted the ejectment petition and passed an ejectment order against the respondents vide order, dated 10-2-2007. Respondents' first appeal was dismissed by the learned Additional District Judge on 29-1-2008, however, their second rent appeal (S.A.O. No,3 of 2008) was accepted by the learned single Judge in Chambers and the case was remanded to the learned trial Court, vide impugned order, dated 26-8-2008, hence the present petition.
(3) Having heard the learned counsel, we are persuaded to grant leave to appeal to petitioners, inter alia, to consider the following questions:---
(i) Whether the statements of the witnesses produced by the petitioners were unrebutted and should have been considered A sufficient evidence to establish the relationship of landlord and tenant between the parties?
(ii) Whether, under the circumstances, sufficient grounds in law existed warranting remand of the case to the learned trial Court, when both the courts concurrently held that relationship of landlord and tenant exists between the parties?
(iii) Whether the ex parte decree dated 2-4-2002 declaring lease deed dated 1-4-1999 as illegal and result of fraud could be relied upon to non-suit the petitioners, more so, when they had already filed an application under section 12(2), C.P.C. Challenging the vires of that decree?
(iv) Whether the impugned judgment is sustainable in law and facts of the case.
(4) Leave to appeal is accordingly granted."
3. We have heard the learned counsel for the parties and examined the available record. Upon perusal of the impugned order, we find that the entire thrust of the learned High Court, while remanding the case, was on the lease deed dated 1-4-1999, which was not pleaded by the appellants in the ejectment petition, as held by the learned High Court, however, a copy of lease deed was annexed with the petition. It may be noted here that the respondents obtained an ex parte decree, dated 2-4-2002 declaring the lease deed dated 1-4-1999 as null and void, against which the appellants' application under section 12(2), C.P.C. Was pending. The sole reason prevailed with the learned High Court to remand the case was the said lease deed, ex parte decree qua lease deed and pendency of appellants' application under section 12(2), C.P.C. We find that there was other material available on record, which was sufficient to decide the issue regarding existence of relationship of landlord and tenant inter se the parties. The appellants in order to prove existence of relationship of landlord and tenant, Issue No,1, produced oral evidence in the shape of A.W.1 to A.W.5, which were admittedly not cross-examined by the respondents. The learned High Court completely ignored to examine impact of the statements of said witnesses while deciding the appeal, especially when the said witnesses were not cross-examined and went unrebutted.
Learned High Court focused only on the lease deed in complete oblivion and ignorance of other evidence on record, which could have clinched the matter in controversy. We feel that the learned High Court erred in law in clubbing the ejectment petition with the fate of the application filed by the appellants under section 12(2), C.P.C. And on the said premises proceeded to remand the case to the trial Court and thus relegated the parties to the position of square one. The lease deed was not the sole document around which whole of the controversy revolved, as there was other material available on record to resolve the issues between the parties. We are of the view that there was enough material available on record sufficient for the learned High Court to decide the appeal itself instead of remanding the case. Reference can be made to Ashiq Ali v. Zamir Fatima PLD 2004 SC 10, Muhammad Dervaish Al-Gilani v. Muhammad Sharif 1997 SCM R 524 and Rozi Khan v. Nasir 1997 SCM R 1849.
4. Both the Courts on the basis of evidence on record held that relationship of landlord and tenant did exist between the parties. We prima facie feel that the concurrent findings of fact arrived at by both the Courts on the basis of evidence on record, could not be set at naught merely on the ground that an application under section 12(2), C.P.C. Qua the validity of decree regarding the lease deed was pending. The learned High Court, while upsetting the concurrent findings of fact did not advert to any piece of evidence and it only on the basis of lease deed set aside the concurrent findings of fact recorded in favour of the appellants, which was not a proper course of action under the circumstances.
5. Although in concluding para. Of the impugned order the learned High Court remanded the case to the trial/Civil Court, where the application under section 12(2), C.P.C. Was pending, yet no terms of reference and guidelines were given to the trial Court for deciding the ejectment petition. To say the least, with respect, the learned High Court decided the matter in a casual and slipshod manner and hurriedly remanded the case, inasmuch as, the decisions of two Courts were set aside without rendering any reason. As we propose to remand the case to the learned High Court, therefore, we have avoided detailed discussion on merits of the case, lest it may cause prejudice to the case of either of the parties.
6. In the above perspective, we have examined the impugned order and find that the remand order, under the circumstances was not justified. We are persuaded to set aside the impugned order and remand the case to the learned High Court for decision of respondents' appeal, afresh, in view of the evidence and other material on record.
7. For the foregoing reasons, the present appeal is allowed and the impugned order, dated 26-8- 2008 is set aside. Resultantly, respondents' Appeal (S.A.O. No,3 of 2008) shall be deemed to be pending before the learned High Court, which shall decide the same, afresh, in view of the evidence on record. We expect that the learned High Court shall decide the appeal within a period of three months from the date of receipt of copy of this order. No order as to costs.