' MUHAMMAD AZAM KHAN, C.J.---The appellant and respondent No,1 are tenant and landlord respectively of the shops, situate in Supply Bazar, Rawalakot. The shops were rented out to the appellant in the year 1985-86. The appellant filed an application under section 4 of the Rent Restriction Act, 1986, in the Court of Rent Controller, Rawalakot on 29th April, 2006, for determination of fair rent of shops. Respondent No,1 filed an application for ejectment of the appellant on the ground that he has sublet the shops without permission of landlord and he himself requires shops for personal needs. Both the applications were consolidated. The learned Rent Controller vide judgment dated 28th October, 2009, accepted the application of respondent No,1 for ejectment and dismissed the other application. The appellant filed an appeal before the appellate authority, i.e, District Judge, which entrusted to the Additional District Judge who dismissed the same on 15th May, 2010. The appellant filed a writ petition in the Azad Jammu and Kashmir High Court. The writ petition was dismissed vide impugned judgment on 25 March, 2011, hence this appeal by leave of the Court.
2. Syed Nazir Hussain Shah Kazmi, Advocate, counsel for the appellant filed written arguments. In the written arguments he submitted that the judgment of the High Court is against law and the record. The Rent Controller was not a necessary party. The judgment of the Rent Controller merged into the decision of the Additional District Judge, appellate authority, therefore, the Rent Controller was not a necessary party. He referred to and relied upon the cases reported as National Bank of Pakistan Circle Head and 2 others v. Labour Appellate Tribunal and another 1996 PLC 411 and Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif and 4 others (PLD 2009 Lahore 140). It is submitted that the learned Judge in the High Court dismissed the writ petition while incorrectly applying the law. The learned counsel submitted that the Rent Controller as well as the appellate Court failed to consider the evidence and the High Court committed error while not appreciating the misreading and non-reading of the evidence.
3. Mr. Sadaqat Hussain Raja, Advocate, counsel for respondent No,1, submitted that eviction order was passed by the Rent Controller, therefore, the Rent Controller was a necessary party. The learned High Court correctly dismissed the writ petition for not impleading the necessary party. The learned counsel further submitted that the appellant has not come in the High Court with clean hands. He is a defaulter as he is not paying the rent for many years. A defaulter cannot file writ petition in the High Court. The learned counsel further argued that the findings recorded by the Rent Controller and the first Appellate Court on facts are concurrent which cannot be disturbed by this Court. He requested for dismissal of the appeal.
' In the case reported as National Bank of Pakistan Circle Head and 2 others v. Labour Appellate Tribunal and another 1996 PLC 411 it was observed by this Court that functionary of the State whose order is under challenge, is a necessary party. In absence of such functionary the writ petition is not maintainable. It was further observed in the referred case that the Labour Court passed the order favorable to the appellants and they do not sought any relief against the Labour Court, therefore, the Labour Court was not a necessary party.
' In the case titled Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif and 4 others [PLD 2009 Lahore 140], a distinction has been drawn between necessary party and proper party..
4. We have heard the learned counsel for the parties and perused the record. The appellant filed an application under section 4 of the Rent Restriction Act, for determination and fixation of fair rent while respondent No,1 filed an application for ejectment on different grounds. The Rent Controller after necessary proceedings rejected the application filed by the appellant, herein and allowed the application filed by respondent No, 1 . The appeal filed by the appellant was dismissed. The Rent Controller was not arrayed as party in the line of respondents in the writ petition. The writ petition was dismissed on the ground that the order was passed by the Rent Controller who being a necessary party has not been impleaded in the line of respondents. The law is settled on the A point that the functionary who passes an order against a party, the writ petition without arraying him as party in the line of respondents is not competent. This Court in a number of cases has held that without arraying a State functionary as party in the line of respondents, who passes an order, the writ petition is not maintainable. It was observed in the case titled Zahid Mehmood Shah and 24 others v. Azad Govt. And 14 others (2011 SCR 159) as under:-- "... It is evident from the record that Member Board of Revenue dismissed the revision petition on 25th April, 2001. The order was challenged by way of writ petition in the High Court and only Member Board of Revenue was arrayed as party. The Board of Revenue was not arrayed as party in the case. For resolving the proposition whether the Board of Revenue is necessary party or not, we have to resort to section 6(3) of the Azad Jammu and Kashmir Board of Revenue Act, 1992. It provides that any order made or decree passed by a Member Board of Revenue would be deemed to be the order or decree of Board of Revenue, therefore, the Board of Revenue is a necessary party."
' In the case titled Siraj Din v: Azad Jammu and Kashmir Government through Chief Secretary and 13 others 2012 MLD 1707 it was observed as under:-- "...In the writ petition filed by the appellant in the High Court on 3rd May, 2006, the appellant challenged the order of Member Board of Revenue passed order on 22nd March, 2006 and requested for setting aside the order of the Member Board of Revenue and also requested that it may be declared that he is an allottee of the land which is shown in survey Nos. 302 and 303. The Board of Revenue was not arrayed as party in the writ petition. At leave granting stage, the appellant moved an application for arraying the Board of Revenue as party. The application was disallowed. This Court in a number of cases has held that if an order of an Authority is challenged in writ petition and that Authority has not been arrayed as party the writ petition is not competent and liable to be dismissed."
' In the case titled Raja Muzaffar Hussain Khan and 9 others v. Board of Revenue through Member Muzaffarabad and 26 others 2014 CLC 758 it was observed as under "6. I have also considered the arguments of the counsel for the petitioners that the orders passed by the Revenue Assistant, Collector and the Commissioner merged into the order of the Board of Revenue, therefore, they were not necessary party. The argument has no force because in the writ petition the petitioners challenged the orders passed by the Revenue Assistant, Collector, Commissioner and the Board of Revenue. Only the Board of Revenue was arrayed as party. The other Government functionaries were not impleaded in the line of respondents. It is by now a well settled law that if a necessary party is not impleaded in the line of respondents, no order can be passed against the said party."
' In the case titled Anam Jabbar and 6 others v. Azad Government and 12 others 2013 YLR 169 it was held as under:- ' if any order passed by an authority is challenged and such authority is not arrayed as party, the writ petition is not competent."
' The cases titled National Bank of Pakistan Circle Head and 2 others v. Labour Appellate Tribunal and another 1996 PLC 411 and Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif and 4 others (PLD 2009 Lahore 140) also lay down the same law that without impleading as party in the line of respondents the state functionary whose order is under challenge, the writ petition is not maintainable. The basic order in the present case has been passed by the Rent Controller. He is a necessary party and without arraying him as party in the line of respondents, the writ petition is not maintainable. The Additional District Judge has not passed the original order. The original order of eviction B was passed by the Rent Controller. The Rent Controller was necessary party. The Additional District Judge has dismissed the appeal of the appellant, herein. No illegality is found in the order passed by the High Court.
The result of the above discussion is that the appeal merits dismissal. It is hereby dismissed with costs. The appellant is directed to handover the vacant possession of the shops to the respondent within period of two months from the date of announcement of the judgment. He is also directed to pay the rent due till eviction of the shops.