' The respondent No,2 filed an ejectment petition against the petitioner in respect of the one room comprising of property No,P-184, Ward No,7, Jhang Bazar, Faisalabad. It was pleaded that the property has been transferred to him by the Settlement Department and he claimed ejectment on the ground of personal use. The petitioner resisted the application on facts as well as legal points. It was pleaded, as a preliminary objection, that the matter of transfer is still under adjudication in the Hon'ble Supreme Court and High Court, therefore, relationship was denied. The learned Rent Controller proceeded to frame following preliminary issues:-- "(1) Whether the relationship of landlord and tenant does exist in between the parties? OPA.
(2) Relief."
2. The parties produced evidence and the learned Rent Controller held that the application of title is yet to be decided, therefore, the petition is premature and in view of this finding the ejectment petition was dismissed vide order dated 5-10-1988. The landlord-respondent No,2 impugned this order through an appeal before the appellate Authority under Punjab Urban Rent Restriction Ordinance. The appeal was accepted and the petitioner was directed to hand over the vacant possession of the premises within one month to the landlord. The order is dated 20-4-1989. Now the petitioner has impugned this order through the present Constitutional petition.
3. The petition was admitted to regular hearing and notices were issued to the respondents. The respondent No,2 appeared and has contested the petition. Learned counsel for the petitioner in support of the petition has argued that the learned Addl. District Judge has wrongly and illegally accepted the ejectment petition while upsetting the finding of the learned trial Court on preliminary issue. The proper course was to remand the ejectment petition for decision on merits.
In this behalf, reliance is placed on the cases reported as Abdur. Rehman v. Walayat Begum PLD 1974 Note 19 at p.55 and Muhammad Hussain v. Muhammad Bashir and 4 others PLD 1974 Lah.
446.
4. On the other hand, the learned counsel for the respondent No,2 landlord has argued that the learned Rent Controller was ill-advised to frame the preliminary issue as to the relationship because he had no jurisdiction to go behind the transfer deed and order. In this behalf, the learned counsel has placed reliance on the case reported as Muhammad Hussain v. Additional District Judge Gujranwala and 2 others 1988 SCMR 1937. It is, however, maintained that when the relationship was denied then after deciding the issue in affirmative the Rent Controller should have ordered ejectment. In this behalf, reliance is placed on the cases reported as Muhammad Yusuf v.
Khalifa Asghar Hussain 1980 SCMR 886 and Nisar Ahmad v. Nazar Muhammad PLD 1974 Lah.
489.
5. I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the paper book and the precedent cases. The short question for determination is whether the ejectment petition should have been remanded decision on merits after the respondent No,1 had set aside the finding of the learned Rent Controller on preliminary issue or not?
The admitted position on record is that the ejectment of the petitioner was sought on the sole ground of personal use. The basis for denial of relationship of landlord and tenant, as is clear from the written reply, was that the matter of transfer is still pending in the Hon'ble Supreme Court and this. Court. While the appeal of the landlord was pending before the respondent No,1, the Writ Petition No, 148R/84 filed by the petitioner was dismissed by this Court on 5-11-1988. The learned appellate Authority after taking this order of this Court in consideration proceeded to reverse the finding of the learned Rent Controller, accepted the appeal and allowed ejectment petition.
6. The learned appellate Authority failed to appreciate that neither issues on merits were framed nor it was a case where ejectment should have been ordered straightaway after deciding the issue as to relationship. Both the Courts below have proceeded in a very casual and careless manner.
The learned Rent Controller before framing the preliminary issues should have found out the reasons for denial of relationship and if necessary could have recorded the better statement of the petitioner. It is not essential in each and every case where relationship is denied to frame a preliminary issue. The Rent Controller should first of all ascertain the grounds of denial of relationship and if necessary record the better statement of the tenant and order production of documents. If the objection, as in the present case, could be decided just after hearing the parties then the framing of such issue will be nothing but wastage of time.
7. Now coming to the judgment of the appellate Authority. The learned appellate Authority did not apply its mind that in the present case the matter has to be remanded to the learned Rent Controller for framing issues on merits and decision in accordance with the law. The learned counsel for the respondent No,2 has tried to support the judgment of the appellate Authority by referring to the cases of Muhammad Yusuf and Nisar Ahmad but the same are not relevant at all because in this case the default was not one of the grounds of ejectment. The personal use has to be established like any other factual controversy.
8. The upshot of this discussion is that the petition is partially allowed, the impugned order as to the acceptance of the ejectment petition is set aside. The result is that the ejectment petition is remanded to the learned Rent Controller for framing of issues on merits and decision in accordance with the law. There is no order as to costs.
' The learned counsel for the parties have submitted that the learned Rent Controller has since been transferred, therefore, the parties are directed to appear before the learned District Judge, Faisalabad on 26-3-1990. The learned District Judge will entrust the matter to the Rent Controller at Faisalabad, who shall decide the petition expeditiously and in any case before 30-6-1990.