' The facts of the case are that on 10-11-1980, the respondent Rana Mansab Ali filed an ejectment petition against the petitioner Sana-ur-Rahman in the Court of Mr. Ziaullah Khan, Rent Controller, Lahore, inter alia, on the ground that the petitioner-tenant was creating nuisance by placing his articles in the passage in front of the shop in question. Copy of this application which was given to the learned counsel for the petitioner, not only did not contain the said averment but was materially different in other respects also from the ejectment application filed in the Court. For instance, it did not contain the important averment that the property in question previously in joint ownership had, in partition fallen in exclusive ownership of respondent nor it gave the specific place and specific business the respondent was doing in a rented shop although these averments were available in ejectment application itself. Written statement was filed by the petitioner on the basis of the copy given to him. Issues including Issue No, 5 on the question of nuisance were framed on 5-11-1981 and the case was fixed for evidence for 17-12-1931. Thereafter the case kept on being adjourned till it was fixed for evidence of parties on 8 4-1982.
2. However, on 16-12-1981, the petitioner had filed an application under Order XIV, rule 5, C. P. C.
Complaining that Issue No, 3 regarding causing of nuisance by the petitioner by placing his articles in front of the shop in question did not arise out of the pleadings of the parties, as copy of the plaint supplied to him did not contain the said allegation. It was further averred that on inspection of the file it had been found that not only the aforesaid allegation was missing altogether in the copy, but there were other serious omissions and discrepancies in the wording of the different paragraphs of the plaint. It was alleged in the application that the petitioner did not get an opportunity to controvert the allegation of causing nuisance and no issue could be framed on this allegation and, therefore, Issue No, 3 to that effect be struck off and action be taken against the respondent- landlord for playing fraud with the Court. On this application an order was made by the Rent Controller that its reply should be filed on 5-1-1982. On receipt of said reply on 5-1-1982 the Rent Controller fixed the case for arguments, on this application on 2-2-1982. On 2-2-1982 case was adjourned to 4-3-1982 and on 4-3-1982 to 8-4-1982. Thus, when the case came up for hearing on 8-4-1982, it was fixed both for evidence as well as arguments in the said application. The Rent Controller, however, instead of deciding this application first recorded the statements of the witnesses of respondent-landlord, who were present, as is clear from opening words of his interlocutory order dated 8-4-1982 passed on the order sheet which says 'that the evidence of the landlord has been recorded' and thereafter records that the stand of the tenant in his said application had been found to be correct and directed that petitioner-tenant should file a fresh written statement in the case.
3. The petitioner-tenant has challenged by means of this writ petition, the act of the Rent Controller in recording evidence of witnesses produced by respondent-landlord without taking a decision on the application filed by him. His learned counsel has contended that relief given by the Rent Controller in merely permitting the petitioner-tenant to submit a fresh written statement is not sufficient, as the evidence recorded already without obtaining proper written statement from petitioner was wholly illegal and if allowed to stand would gravely prejudice the case of petitioner.
He further submits that the written statement to be submitted afresh by the petitioner may make it necessary for the Rent Controller to take replication from the respondent and the shape of issues and party on whom onus of proof would be placed cannot at this stage be anticipated and, therefore, even if opportunity to cross-examine the witnesses whose evidence has already been recorded is subsequently given to petitioner-tenant, it would not meet the ends of justice. He prays that evidence already recorded be held to be of no consequence and direction be made to the Rent Controller to record fresh evidence after framing afresh all the issues which may arise in the case.
4. Learned counsel for the respondent concedes that the evidence was recorded earlier while the decision on the said application of the petitioner was made later and this was not in accordance with law and justice, In the interest of early disposal of his client's ejectment application he accepts that previous evidence recorded by Rent Controller be treated to be of no legal consequence and after receiving written statement from petitioner and replication from respondent if any is necessary, fresh issues be framed and fresh evidence be recorded.
5. Accordingly on the basis of the concession of the learned counsel for the respondent this writ petition is allowed and the act of Rent Controller in recording evidence of respondent-landlord without getting a proper written statement from petitioner-tenant is declared to be without lawful authority and Rent Controller is directed to treat the previous evidence as non-existent, frame fresh issues after receiving written statement from the petitioner (and any replication if necessary from the respondent) and record fresh evidence on issues framed. There will be, however, no order as to costs.