' The facts giving rise to this writ petition are that respondent No, 3, Mst. Allah Di, hereinafter referred to as the respondent, made an application against the petitioner, Noor Muhammad, for his eviction from a house, on the ground of default and personal need. While resisting the application, it was denied by the petitioner that there was relationship of landlady and tenant between the parties. On this, a Rent Controller of Bahawalpur, who was seized of the application, framed a preliminary issue with a view to deciding the question of existence of the said relationship between the parties. After recording the parties' evidence thereon, it was held by the learned Rent Controller that the petitioner was not occupying the house as a tenant of the respondent. Resultantly, the application was dismissed by him by his order, dated the 11th November, 1979. Feeling aggrieved by that order, the respondent preferred an appeal before the District Judge, Bahawalpur. It was held by the learned District Judge, by his order, dated the 7th February, 1980, that there was relationship of landlady and tenant between the parties. He, therefore, accepted the appeal, reversed the finding of the learned Rent Controller, set aside the order of dismissal of the ejectment application and remanded the case to him for further proceedings according to law.
2. The petitioner did not feel satisfied with the order of the learned District Judge, and challenged it before this Court by means of a second appeal. The appeal was dismissed by M. E. Rana, J. On 20th February, 1980, on the ground that the order appealed against was interlocutory in nature and, therefore, the appeal was not competent. Relevant portion of his order on the second appeal reads as under :- "A question arises whether such an order passed by the District Judge which was technically speaking not an order passed under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), was appealable to this Court. Learned counsel has referred to Mst. Mah Bibi v. Mst. .Hamida begum (PLD 1976 Kar. 811) and contended that the order of remand fell within the ambit of term 'an order passed on an appeal', because in an appeal against the order of the Controller the District Judge would be competent to pass an order of remand. He, therefore, contended that the correctness of such an order would obviously be subject to an appeal under section 15 (4). I do not agree with the learned counsel because the case referred to by him has different features inasmuch as in that case the Rent Controller had virtually passed an order of ejectment and appeal to the learned District Judge was made under section 15 (1) of the Ordinance, and for that reason an order of remand passed would also be deemed to be an order under section 15. In the instant case, the position is different. The Rent Controller had simply framed a preliminary issue in respect of relationship and decided that the appellant was not a tenant under the respondent. Such a decision is interlocutory in nature and is not a case under section 13 of the Ordinance. With reference to the provisions of section 13 (6) of the Ordinance, it is authoritatively held in Ibrahim v. Muhammad Hussain (PLD 1975 SC 457) that interlocutory order of provisional character, not necessarily resulting in striking off the defence and order of ejectment, was not appealable under section 15 (1)."
3. The order passed by this Court was assailed by the petitioner before the Supreme Court by means of a Civil Petition for Leave to Appeal. The Supreme Court did not approve of the view taken by this Court that the order involved in the second appeal was of interlocutory nature and, therefore, the said appeal was not competent. Observations of the Supreme Court in this behalf make the following reading :- "It was argued by the learned counsel for the petitioner that the view of the High Court that the order passed by the learned District Judge on 7th February, 1980 and by the learned Rent Controller on 11th November, 1979 were merely of an interlocutory nature is not correct, inasmuch as the order of the former was passed "on appeal" and the order by the latter was such which purported to dismiss the main ejectment application and was final in the sense that it formally disposed of the whole case. In these circumstances, it is evident that the refusal of the High Court to entertain the appeal of the petitioner on the ground aforementioned was not justified. For distinction between orders passed "on appeal" and orders passed "in appeal" see Khawaja Ghulam Mustafa v. Mian Wajar Ahmad (PLD 1980 SC 9) affirming Din Muhammad v. Hidayat Hussain (PLD 1968 Lab. .207)."
' The Supreme Court also upheld the finding of the learned District Judge on the question of tenancy as is evident from the following observations :- "However, this is not the end of the matter, because, on the facts and in the peculiar circumstances of this case we think, that this is not a fit case for grant of special leave, inasmuch as all that, has happened is, that after recording the finding that the relationship of landlord and tenant did exist between the parties, the case has been remanded to the learned Rent Controller for fresh disposal in accordance with law. We have gone through the finding on the subject as recorded by the learned District Judge and find nothing wrong with it. A close perusal of the order of the learned District Judge further shows that as a matter of fact, it was conceded by the counsel for the present petitioner before him that the landlady was the owner of property in dispute. Similar was independent finding of the learned Rent Controller also. Examining the matter in this background, and in the light of the finding of the learned District Judge on this factual point namely that the respondent was the landlady and the petitioner was a tenant under her, the order of remand calls for no interference inasmuch as it neither suffers from violation of any law nor any misreading of evidence."
' In result, the Supreme Court dismissed the petition for leave to appeal with the remarks that it was not fit for admission.
4. On the other hand, what happened on the side of the learned Rent Controller, after the remand of the case to him, was that he framed the following issues on merits :-
(i) Whether the respondent had defaulted in paying the rent due ?
(ii) Whether the petitioner requires the house in dispute bona fide for personal use ?
' The parties produced evidence on the above issues. By his order, dated the 15th April, 1981, the learned Rent Controller decided both the issues against the petitioner and ordered his eviction. An appeal against his order was filed by the petitioner but the same was dismissed by the learned District Judge on 14th February, 1982 by upholding the findings of the learned Rent Controller on both the issues. This order of the learned District Judge has been impugned by the petitioner by means of the Constitutional petition in hand.
5.. It was contended by learned counsel for the petitioner that after the remand of the case by the learned District Judge, the learned Rent Controller ought to have re-examined the question of tenancy and since he had failed to do so, the order of eviction passed by him was not sustainable.
6. In reply, it was submitted by learned counsel for the respondent that the decision of the learned District Judge on the question of tenancy had attained finality inasmuch as the said decision was also maintained by the Supreme Court, and, therefore, there was no need for the learned Rent Controller to re-decide the question of tenancy after the remand of the case.
7. While commenting on the plea raised by learned counsel for the respondent, it was urged by learned counsel for the petitioner that since leave to appeal against the order passed by this Court on the second appeal was not granted by the Supreme Court, the order of the High Court was still holding the field. In regard to the finding of the Supreme Court, on the question of tenancy, it was argued by learned counsel for the petitioner that the said finding was not binding on this Court by virtue of Article 189 of the Constitution because it was not a decision on a question of law. He did not plead that the finding of the Supreme Court on a question of fact would not be binding in any case but maintained that such a finding would be conclusive only if it is recorded by the Supreme Court after hearing both sides in an appeal of any of the categories enumerated in Article 185 of the Constitution. The argument proceeds that there was no appeal before the Supreme Court touching the matter in dispute because the very petition for leave to appeal was dismissed.
8. Learned counsel for the respondent did not agree with learned counsel for the petitioner that the finding of the Supreme Court on the question of fact was not binding on the parties because leave to appeal was refused by the Supreme Court. He submitted that the Supreme Court had conclusively decided the question of tenancy and, therefore, that question could not be agitated before any other forum. In this connection, he also invited my attention to the memorandum of appeal filed by the petitioner before the learned District Judge, against the order of eviction, in which the said order was not taken exception to on the ground that the learned Rent Controller had not re-decided the question of tenancy after the remand of the case by the District Judge. This omission on the part of the petitioner, according to learned counsel for the respondent, was indicative of the fact that the petitioner too was convinced that the finding of the Supreme Court on the question of tenancy was final and binding on the parties.
9. As for the effect of the order of the Supreme Court on the order made by this Court on the second appeal, it is true that, theoretically speaking, the order of this Court is still holding the field inasmuch as it has not been expressly set aside by the Supreme Court but the fact of the matter is that the view on which the order of this Court was based was not approved of by the Supreme Court. Thus, for all practical purposes, the order of this Court has been annulled A by the Supreme Court. Even if it is assumed that the order of this Court still holds good it is of no avail to the petitioner because the said order did not in any way alter the situation in which he had approached this Court. The order of the learned District Judge remained intact even after the second appeal was disposed of by this Court and that order was also upheld by the Supreme Court. The petitioner cannot, therefore, make any capital out of the order made by this Court on his second appeal.
10. This brings me to the plea of learned counsel for the petitioner that the order of the Supreme Court was not passed on an appeal and, therefore, it is not binding on the parties. It has already been noted that this Court had dismissed the second appeal for being incompetent. This view, however, did not find favour with the Supreme Court. Now, when the petition for leave to appeal came up before the Supreme Court two courses were open to that august Court. It could either grant leave to appeal due to the reason that prima facie the view taken by this Court regarding the competency of the second appeal was incorrect, and then, after hearing both sides, record a final order setting aside the order of this Court and remanding the second appeal to it for fresh decision on merits. The other course available to the Supreme Court was the one adopted by it. This was perhaps resorted to by the Supreme Court in order to cut out delay in the disposal of the ejectment matter. The law is well-settled on the point that if an appellate Court finds that any question has been wrongly decided by a lower Court it should, instead of lightly remanding the case to the lower B Court, decide other questions involved in case also, if there is sufficient material on the record for its so doing, and finally decide the case at its own level with a view to saving the parties from another round of litigation. It was perhaps for similar considerations that the Supreme Court decided the question of tenancy also without adopting a lengthy procedure of requiring this Court to adjudicate upon that question. It is not correct to say that the order of the Supreme Court will not be of binding nature if it is not made on an appeal preferred before it as of right or by leave. The provisions of clause (2) of Article 185 contemplate the making of a petition for leave to appeal.
Detailed procedure in respect of such petitions is contained in the rules framed by the Supreme Court under Article 191 of the Constitution. It would, therefore, follow that any order made by the e Supreme Court on a petition for leave to appeal would be very much within the jurisdiction conferred on it by the Constitution. If by such an order, a question of law is decided, the order will not only be binding on the parties butt also on all other Courts in the country by virtue of the provisos of Article 189 of the Constitution. There is nothing in Article 189 to indicate that the orders referred to therein are these orders only which are passed on appeals. If the order made by the Supreme Court while deciding a petition for leave to appeal is on a question of fact, it will be conclusive between the parties. In the instant case, the order of the Supreme Court, regarding the existence of tenancy, no doubt, does not decide a question of fact and is, therefore, binding on the parties. Similar view was expressed D by a Division Bench of this Court, in Major-General (Retd.)
Mian Ghulam Gilani v. The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad (1), in the following words :- "This order neither decides a question of law, nor is based upon a principle of law, nor enunciates a principle of law. In this view of the matter, this order suspending the operation of the impugned order is not covered by Article 189 of the Constitution and consequently is not binding on the Courts in Pakistan, except of course on the parties in that case."
I am, therefore, unable to agree with learned counsel for the petitioner that did since the order of the Supreme Court was not passed on an appeal and did not decide a question of law it is not binding on the parties.
11. What I gathered from the submission of learned counsel for the petitioner was that. According to him, no order of the Supreme Court will bind the parties if both sides are not heard by it before making the order. Both sides are to be heard if a matter is admitted to a regular hearing but if it is dismissed in limine there is no occasion to hear both sides. The orders made after limine hearing are as much binding on the parties as the orders passed after regular hearing. Muhammad Shafi and another v. Muhammad Bakhsh and another (2) and Syed Mir Ahmad Shah v. The Pakistan and 2 others (3) are some of the authorities in point. In the case of Syed Mir Ahmed Shah a Division Bench of this Court, of which I was also a member, had made the following observations :- "The mere fact that the orders passed against the appellant in the first round of litigation were made without summoning the opposite-party is not enough to save the first appeal from the operation of the principle of res judicata. If there is a pronouncement by the Supreme Court regarding the merits of any case it will operate as res judicata even if it is made while disposing of a matter in limine. Same view was expressed in the case of Muhammad Shafi and another to which a reference has already been made."
To hold otherwise will nullify all orders passed by the Courts in limine in exercise of the powers conferred on them by the Constitution and the law. The order passed by the Supreme Court on the petition for leave to appeal too was in the nature of an order made in limine. It is also noteworthy that since the petition for leave to appeal was made by the petitioner, and his counsel was heard by the Supreme Court before the petition was dismissed by it, he cannot have any grouse in regard to the hearing of the petition. There is, thus, no merit in the argument of learned counsel for the petitioner that the order of the Supreme Court on the aforesaid petition was not binding on the parties because it was made without hearing both the parties.
(1) PLD 1975 Lah. 65 (2) PLD 1971 Lab. 148
(3) PLD 1979 Lab. 599
12. Learned counsel for the petitioner did not canvass any point except that the question of tenancy was not re-examined by the learned Rent Controller after the case was remanded to him but as the order of the learned District Judge in this behalf was not set aside by any superior Court and instead it was confirmed by the Supreme Court, there was no occasion for the learned Rent Controller to re-decide the question of tenancy. The plea advanced by learned counsel for the petitioner is, therefore, devoid of force and is repelled.
13. Resultantly, this petition fails. It is dismissed with costs. The petitioner is, however, allowed two months' time to vacate the disputed premises.