The petitioner filed an eviction application against Respondent No. 1/tenant contending therein that the respondent having failed to pay the enhanced rent as stipulated in Paragraph. No. 3 of the written agreement and the period of agreement having come to an end, is liable to eviction. The respondent submitted an application for leave to contest. It was averred that the petitioner- landlord had accepted the rent even without enhancement and therefore, was estopped to demand eviction of the respondent on the ground of willful default in payment of the rent. The learned Rent Controller vide order dated 09.04.2010 dismissing the application of the respondent for leave to contest, accepted the petitioner's eviction application. Respondent preferred an appeal. It was accepted by the learned Additional District Judge, Lahore vide order dated 16.11.2010 and leave to contest was granted to the respondent. The eviction application was remanded for adjudication.
2, It is contended by the learned counsel for the petitioner that accepting of the rent by the petitioner without enhancement does not amount to a waiver and the petitioner has every right to ask for the eviction of the respondent on the grounds mentioned in the eviction application; that the petitioner on account of his failure to pay the enhanced rent has incurred willful default, therefore, the impugned order accepting the petitioner's application for granting leave to contest and remanding the matter is illegal and is liable to be set-aside.
3. On the other hand, it is contended by the learned counsel for the respondent that the remand order is not the final adjudication, it will only allow the parties to have the cause decided on merits after adducing their respective evidence; that the order passed by the learned appellate Court is neither exceptional nor perverse and has been passed without jurisdiction. Relies on "2007 CLC 768" titled Akbar Ali and 18 others Vs. Mukhtar Ahmad and 14 others", "1986 SCM R 1607" titled Divisional Superintendent, Pakistan Railways, Rawalpindi Vs. Muhammad Aslam and 25 others, "2004 M LD 2024" titled Jafar Hussain Vs. Member (Judicial IV), Board of Revenue of Punjab, Lahore and 3 others & "2009 CLC 860" titled Mst. Salim-un-Nisa and 5 other Vs. Aziz and another, to argue that the order remanding the case cannot be challenged in a Constitutional petition.
3. I have the learned counsel for the petitioner, for Respondent No. 1 and also gone through the impugned orders.
4. The impugned order accepting the respondent's/tenant's application for leave to contest and remanding the case for its adjudication on merits is not exceptional or perverse and has been passed in exercise of jurisdiction vested in the Court. This petition has no merit. Relying upon the judgments referred by the learned counsel for the respondents, the petition is, hereby, dismissed.
Since it is a rent matter and has been pending since long, the learned Rent Controller is directed to decide the eviction application within two months from the receipt of the order of this Court.