' This petition under Article 199 of the Constitution of Islamic Repulic of Pakistan calls in question the order dated 9-2-1988 passed by the learned Additional Disrtict Judge, Lahore, whereby he dismissed the appeal filed by the petitioners against the order dated 9-9-1985 passed by the learned Rent Controller, Lahore whereby the ejectment petition filed by the petitioners in respect of property No, 14-McLeod Road, Lahore was dismissed.
2. The background of this case is that respondent No,1 is in occupation of two portions of property No,14-McLeod Road, Lahore. The entire property including the portions in dispute is known as Lakhshami Estate. It was owned by M/s. Lakhshami Insurance Company Ltd. The petitioners claim to have purchased the same through exchange deed which was also registered vide EA. P2. On the basis of said transfer deed the petitioners instituted an ejectment application dated 16-12-1959 against respondent No,1 in respect of the disputed property on the ground of default in the payment of rent. The application was resisted by respondent No,1. During the pendency of the ejectment proceeding, the learned Rent Controller vide order 19-11-1973 struck off defence of respondent No,1 under section 13(6) of the Ordinance for committing default in the payment of arrears of rent as directed by the learned Rent controller. Respondent No,1 filed two appeals against the abovesaid order which were accepted by the learned Additional District Judge, Lahore vide his judgment dated 6-12-198(1 whereupon the case was remanded with the direction that an issue be framed whether relationship of landlord and tenant existed between the parties and an opportunity be provided to the parties to adduce evidence in respect of their respective pleas.
3. During the course of remand proceedings, respondent No,1 submitted an application for striking the additional issue as to the maintainability of the ejectment petition but the same was however, rejected vide order dated 19-12-1981. Thereafter, another application was made for amendment of the the written statement. This was also rejected on 5-10-1982. Thereafter, the learned Rent Controller after appreciating the evidence on record as well as the additional evidence produced by the parties vide order dated 9-9-1985 dismissed the ejectment petition on the ground that the ejectment petition was premature, inasmuch as, the petitioners failed to obtain permission from the Deputy Custodian for evicting respondent No,1 in terms of the order dated 26th August, 1948 passed by the Deputy Custodian which has been upheld by the Supreme Court in case of The Lakhshami Insurance Co. Ltd. v. Nawa-i-Waqt Publications Ltd and others.(PLD 1968 SC 215). The order of the-Rent Controller was upheld in appeal by the learned Additional District Judge, Lahore vide judgment dated 9-2-1988.
4. Mr.Abid Hasan Minto, learned counsel for the petitioners argued that the property in dispute was not an evacuee property as held in case of The Lakhshami Insurance Co. Ltd. (supra) and, therefore, it was not incumbent upon the petitioner to approach the Custodian for seeking permission to evict respondent No,1. Alternatively it was argued that the observations made by the Supreme Court that "the properties are at present held and occupied by tenants and others under the protection or orders made in the Custodian Department of which an example may be found in the quotation from the order of the Deputy Custodian at Lahore, dated the 26th August, 1948, mention of which has already been made earlier, these tenants and others are not to be ejected without the permission of the Custodian organisation and they enjoy the advantage of a reduction of 33-1/3% on the basic rent" no longer holds the field after repeal of the Evacuee Laws by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It was further argued that even if the above observation of the Supreme Court holds the field, the petitioners are unable to appraoch the Custodian, in that, no Custodian is functioning presently, after repeal of the Evacuee Laws. The petitioners are also precluded to approach the notified officer under section 2 of the Act (XIV of 1975) in that, no dispute was pending on the subject-matter before the Custodian before the target date, that is 28-1-1975.
5. Mr. Shahzad Jahangir, learned counsel for respondents vehemently argued that the petitioners were neither the owners of the property in dispute nor relationship of landlord and tenant existed between them. He further argued that the observations made by the Supreme Court do not suffer from any ambiguity. It applied to refugees tenants as well as other occupants under the protection of orders made by the Custodian Organization.
6. In the instant case, Mr. Shahzad Jahangir argued that according to Exh.R-1 respondent No,1 was allottee of the premises in dispute and, therefore, irrespective of the fact whether or not he was a refugee was not liable to be evicted without permission of the Custodian Organization, which was admittedly not obtained.
7. After hearing at length the submissions made by the learned counsel for parties and having gone through the judgment of the Supreme Court in case of The Lakhshami Insurence Company Ltd. (Supra) and perusing the material available on record, I am of the view that benefit given to the tenants and others who occupied the property held by the Lakshami Insurance Co. Ltd. Under the protection of orders made in the Custodian Department no longer holds the field after the repeal of Evacuee Laws. It was therefore, not necessary for Lakhshami Insurance Company to obtain permission of the Custodian for approaching the Rent Controller for adjudicating the dispute raised in the ejectment petition filed by the petitioners. The case will, therefore, have to be remanded to learned Rent Controller. The learned counsel for the parties also agree that in order to avoid protracted litigation the case be remanded to the learned Rent Controller to decide the ejectment application afresh and the parties shall be at liberty to raise additional pleas, if so desired and also to produce additional evidence in support of their respective pleas. I am also inclined to hold the same view in the facts and circumstances of the case which unfortunately is lingering on mere technicalities for over 30 years. The parties are directed to appear before the learned District Judge, Lahore, on 15-6-1991, who shall entrust this case to some Rent Controller at Lahore. This being an old matter, the Rent Controller is directed to dispose of the same within four months from the date of first hearing before him. To this extent the writ petition is accepted with no order as to costs.