The petitioners, Anwar Khan Khanzada and others, made an application against the respondent, Gulzar Ahmad, for his eviction from certain premises. The Rent Controller who had heard the application directed the respondent, under subsection (6) of section 13 of the Punjab Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance to deposit certain arrears of rent before 15th September 1980. The arrears were, however, deposited on and not before the said date. The respondent made an application for con--doning one day's delay in making the aforesaid deposit stating that he had misunderstood the order regarding deposit of rent and, therefore, he did not do the needful before 15th September 1980. His prayer was not acceded to by the learned Rent Controller. He, therefore, struck off his defence and ordered his eviction. The respondent went in appeal before an Additional District Judge who, without expressing any opinion on the question whether the respondent's default was wilful or not, set aside the order of the learned Rent Controller on the ground that no opportunity was . Afforded to the respondent "to adduce evidence in proof of the circumstances which prevented him from making the deposit within the given period". The appeal was, therefore, accepted and the case remanded to the learned Rent Controller with the direction that he shall redecide the respondent's application for condonation of delay after recording his evidence. Feeling aggrieved by the order of the learned Additional District Judge, the petitioners have filed this Constitutional petition.
2. When the case came up before me for regular hearing, a preliminary objection was raised by learned counsel for the respondent that the writ petition was not competent inasmuch as it was directed against a remand order. He cited Zainab Bibi etc. v. Abdullah etc. PLD 1979 Note 33 at p.
21, in support of his conten--tion. As against this, it was urged by the learned counsel for the petitioners that if an order is without lawful authority or of no legal effect, the same can be challenged by invoking Constitutional jurisdiction of this Court regardless of the fact that the order happens to be a remand order.
3. The case of Zafnab Bibi etc. was a writ petition against an order of remand relating to some settlement cases. In regard to that order, a learned Single Judge of this Court observed as under :- "The other thing is that the impugned order is not a final order, there--fore, it is not necessary to exercise the Constitutional jurisdiction. A writ lies against final adjudication. The cases have been remanded.
A remand order does not finally decide the dispute as the authority that decided the case earlier has to redecide the matter'."
4. Provisions relating to writ petitions are contained in Article 199 of the Constitution of 1973. These provisions have by and large, been incorporated' in Article 9 of the Provisional Constitution Order, 1981, also. According[ to these provisions, an order can be struck down by the High Court if it is without lawful authority or of no legal effect regardless of the fact that such order finally disposes of the dispute .Between the parties or requires the authority or Court, which made the order under challenge, to re-adjudicate upon the dispute. I am conscious of the fact that the High Courts are reluctant to interfere with the orders of interlocutory nature but the order impugned herein is not an interlocutory order inasmuch as it had finally disposed of the appeal taken to the learned Additional District Judge. It was, therefore, a final order so far as the appeal filed before the learned Additional District Judge was concerned. In this view of the matter, 1, with respect, am unable to share the view taken in the case of Zainab Bibi etc., cited by the learned counsel for the respondent, that a remand order is not amenable to writ jurisdiction. The preliminary objection raised by the learned counsel is, accordingly, overruled.
4-A. As pointed out above, the order of the learned Rent Controller was taken exception to by the learned appellate authority for the reason that the respondent was not afforded an opportunity to produce evidence in support of his plea that his default was not wilful. Assailing the reasoning of the learned Additional District Judge, it was submitted by learned counsel for the petitioners that it was not necessary for the learned Rent Controller to record evidence on the application moved by the respondent for condonation of delay and, therefore, the learned Additional District Judge was not justified in striking down the order of eviction due to the failure of the learned Rent Controller to allow the respondent to. Produce evidence in the matter. In this connection he placed reliance on Javaid Iqbal v. Rana Muzaffar Khan (1) and Municipal Committee, Gujranwala v. Barkat Bibi and 5 others (2).
5. In reply to the arguments advanced by learned counsel for the petitioners,, it was contended by learned counsel for the respondent that the respondent had a right to produce evidence showing that his default was not wilful and since that right was denied to him by the learned Rent Controller, his order was rightly interfered with by the learned Appellate Authority.
6. In the case of Javaid Iqbal, relied upon by learned counsel for the petitioner, it was held that if a tenant does not deposit rent in compliance with the direction of the Rent Controller it is not necessary . That before striking off his defence he should be given an opportunity to adduce evidence explaining his default. The same view was reiterated in the case of Municipal Committee, Gujranwala. I, therefore, agree with learned counsel for the petitioner's that, it was not incumbent upon the Rent Controller to allow an opportunity to the respondent to produce evidence with a view to explaining that his default was not wilful.
7. In the present case, the learned Additional District Judge had assumed that whenever a tenant commits - default in relation to the deposit of rent, the Rent Controller is bound to record his evidence so as to enable him to show that his default was not wilful. This is, however, not the correct legal position inasmuch as what has been ruled in the precedent cases cited at the Bar is that it is not the obligation but the discretion of the Rent Controller to record evidence in such like cases. It would, therefore, follow that in the instant case the learned Additional District Judge had proceeded on wrong premises in deciding the appeal and as such the order made by him merits interference.
(1) 1976 SCMR 229(2) 1979 SCMR 264
8. The writ petition is, accordingly, accepted, the order under challenge is set aside and the case remanded to the learned Additional District Judge for re-deciding the appeal in the light of the above observations and according to law. He shall decide the appeal afresh within two months.
There shall be no order as to costs. The parties shall appear before him on 10th November, 1981.