NASIM HASAN SHAH, J. This petition is directed against the order dated 11-5-1982 passed by a learned Single Judge of the Lahore High Court dismissing the writ petition filed by the petitioners, in limine.
2. The relevant facts are that the respondents had filed a petition for the ejectment of the petitioners from House No. 290/B-III, Pakpattan Bazar, Sahiwal, on the ground of default in payment of rent and personal need. The petitioners, which expression includes their predecessor-in-interest, contested the application both on the merits repudiating the assertion of the respondent that they had committed default in payment of rent or that the respondents needed the house for their personal requirement as well as on legal issues, viz. That a valid notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not served on them and that the relationship of landlord and tenant did not exist between the parties. Consequently, certain preliminary issues were framed, namely :- (1)
(2) Whether a valid notice under section. 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, has been served to the respondents? O.P.A.
(3) Whether relationship of landlord and tenant exists between the parties ?
(4)
The Rent Controller disposed of the preliminary issues vide order dated 22-10-1977. Issue No. 3 reproduced above was decided against the petitioners. However, no decision was recorded against issue No. 2.
The Rent Controller then proceeded to frame the following issues on the merits :-
(1) Whether the respondents have neither rendered the rent of premises in dispute within due time to the petitioners? O. P. P.
(2) whether the petitioners bona fide require the property in dispute for their personal need?
(3) Relief.
The respondents did not press the issue of default in the course of the proceedings before the Rent Controller, which was accordingly, decided against them. The parties contested issue No. 2 only which was found against the petitioners and, accordingly, they were directed to hand over the possession of the house to the contesting respondents vide order dated 20-2-1979.
3. The petitioners filed an appeal before the Appellate Authority against the orders dated 20-2-1979 and 22-10-1977 passed by the Rent Controller. The Additional District Judge IV Sahiwal, as Appellate Authority, accepted the appeal vide order dated 10-12-1980 on the ground that the Rent Controller had failed to record any finding on preliminary issue No. 2. He further observed that a finding on issue No. 2 would necessitate a fresh finding on issue No. 3 and further that some preliminary objections raised by the Petitioners were not put into issue and a remand fresh decision of the merit by the Rent Controller was considered necessary. This was also necessary because no finding was given by him with regard to the issue relating to the personal requirement of the landlord. As the order passed in remand, especially para. 13 thereof is very important for our purposes the relevant portion. Thereof is reproduced below :- "13. I, therefore, without discussing the finding of the learned trial Court on other issues accept this appeal, set aside the impugned orders dated 20-2-1979 and 22-10-1977, to the extent of the preliminary issues 2 and 3, and remand the case to the learned lower Court with a direction to hold further inquiry and decide these preliminary issues afresh in accordance with law. The learned trial Court in that case shall also frame preliminary issues in the light of the objections raised by the appellants-tenants as observed above and then shall decide the aforesaid issues as well as the issues on merits in accordance with law.
The above extract of the order of the learned Additional District Judge shows that the Rent Controller, to whom the case was to be entrusted on remand was directed to record a fresh finding on merits as well as on the preliminary issues.
4. On remand, the Rent Controller seized of this matter in compliance with the order of remand, framed some further issues and then went on to decide the case. In so doing the Rent Controller decided the preliminary issue No. 2 relating to the issuance of notice under section 30 in favour of the petitioners, as according to him, the respondents-landlords had failed to establish that they had served a notice under section 30 on the petitioners. However, the preliminary issue No. 3 relating to the question of relationship of landlord-and tenant between the parties was again decided against them. The newly-framed preliminary issues also went against them. In the result, in view of the finding of the Rent Controller on preliminary issue No. 2, the ejectment application was rejected, vide his order dated 6-12-1981.
5. The contesting respondents preferred an appeal against the order of the Rent Controller dated 6-12-1981, which was heard by the Additional District Judge VI, Sahiwal. The learned Judge reversed the finding of the Rent Controller as to the service of notice under section 30 of the Act on the petitioners and, thereafter, relying on the decision of the Rent Controller dated 20-2-1979, wherein the respondents' personal need of the house had been found in their favour, allowed their appeal and ordered the ejectment of the petitioners.
6. The petitioners challenged the above order by filing a writ petition in the Lahore High Court, Multan Bench, Multan (W. P. No. 531/82) but the same was dismissed in limine vide order dated 11- 5-1982. Hence this petition for leave to appeal.
7. We have heard Ch. Khalilur Rehman, learned Advocate for the petitioners and Rao Hamid Mukhtar Khan, on behalf of the contesting respondents at full length.
8. A perusal of the record shows that the learned Additional District Judge IV, Sahiwal, in his order dated 10-12-1980 while, remanding the case, inter alia, to the rent Controller, had directed him to record a finding on the merits afresh, as is evident from the extract of his order, reproduced above, wherein it was observed that "he shall decide the aforesaid issues as well as the issues on merits in accordance with law."
9. However, the Rent Controller, who heard the case on remand. Rejected the eviction application on the short ground that notice under section 30 of the Displaced Persons Act was not served. The First Appellate Court reversed this finding but, while ordering eviction of the petitioners, relied exclusively on the earlier decision of the Rent Controller dated 20-2-1979 as to the personal need of the landlord and did not decide this issue afresh. In the result, no finding has been recorded o the merits so far with regard to the question of personal need of the respondents although in view of the terms of the remand order date 10-12-1980 this was also required. Thus, an adjudication on the merits o this issue is still to be made.
10. Leave to appeal, in these circumstances had obviously to be granted, but in view of this clear position, the learned counsel of the contesting respondents realising that the appeal will ultimately succeed to permit adjudication of the above issue on the merits agreed that this petition may be converted into an appeal and disposed of on merits to save the time to be consumed till the appeal came up for hearing disposal.
11. We would, therefore, convert this petition into an appeal, set aside the order of the High Court dated 11-5-1982 as well as that passed by the learned Additional District Judge VI, Sahiwal, dated 3-4-1982 and remand the case back to the District Judge, Sahiwal for disposal by himself or b any other Additional District Judge, to whom this matter may be entrust to rehear the appeal preferred against the order of the Rent Controller, Sahiwal dated 6-12-1981 and to decide issue No. 2 on merits, namely, whether the respondents bona fide require the property in dispute for their personal~ need after considering all the evidence which may now be led by the parties with his permission as also that which is already on the record.
12. The parties, however, will be left to bear their own costs. Appeal allowed.