MALIK MUHAMMAD QAYYUM J:- This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arise out of an application under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, by the petitioner against respondent No.3 with respect to property bearing No.271 Poonch Road, Samanabad, Lahore, on the ground that he was a defaulter in the payment of rent as also for the personal use. In the written reply filed by respondent No.3, relationship of landlord and tenant was denied. The Rent Controller after, framing the preliminary issues, recorded the evidence of the parties and proceeded to dismiss the ejectment petition on 15.12.1984, holding that respondent No.3 was not a tenant under the petitioner Aggrieved by this order, the petitioner filed an appeal and succeeded before Malik Mushtaq Ahmad, Additional District Judge, Lahore, who on 4.10.1986 reversed the findings of the Rent Controller and held that the existence of relationship of landlord and tenant between the parties was proved. As a consequence of his findings on preliminary issue, he ren/anded the ejectment petition for its trial on merits to the Rent Controller. This judgment of the Additional District Judge was assailed by respondent No.3 by filing constitutional petition (W.P. No. 4780/87), in this Court, which was, however, withdrawn op 3.11.1987. The learned counsel for respondent No.3 has stated that a civil suit has since been filed by him and is pending adjudication.
2. In the post-remand proceedings, Rent Controller: framed the following issues:-
1. Whether the respondent is a defaulter since June, 1980?
2. Whether the premises in dispute is required for personal use and occupation It appears that on 25th June, 1988, learned counsel for the petitioner made a statement giving up the ground of personal use. On 19th July, 1988, the Rent Controller came to the conclusion that respondent No.3 was a defaulter in the payment of rent and directed his eviction. This order was appealed against by respondent No. 3 in the District Court. Strangely enough, the Additional District Judge who heard the appeal, proceeded to hold that the earlier decision of Malik Mushtaq Ahmad, Additional District Judge, Lahore, dated 4th October, 1986, was not correct and as there was a doubt with regard to, the title of the landlord, he should first establish it by obtaining a declaration from the Civil Court and then i.e an ejectment petition against respondent No.3. On this finding, the appeal was accepted and the order of the Rent Controller was set aside and the ejectment petition was dismissed on 2nd May, 1989.
3. Sheikh Karamat Nazir Bhindari, the learned counsel for the petitioner, contended that the Additional District Judge has acted illegally and in a capricious manner in proceeding to hold that the earlier decision of the Additional District Judge was not correct and that the issue of relationship of landlord and tenancy should not have been decided in favour of the landlord, who should establish his title before the Court,
4. This contention of the learned counsel is well founded. Admittedly, the issue of relationship of landlord and tenant stood finally decided by Malik Mushtaq Ahmad, Additional District Judge on 4th October, 1986 who accepted the appeal of landlord, reversed the findings of Rent Controller on preliminary issue and remanded the case for decision on merits. This 6rder had attained finality as respondents withdrew the constitutional petition filed by him on 3rd November, 1987. On no reasonable premises could the Additional District Judge nullify or set aside this order of remand, which was not and in law, could not be brought under challenge by him. To say the least, the Additional District Judge acted in a most high-handed manner, by proceeding to criticise the order rendered by a Court of co-ordinate jurisdiction and which had attained finality in view of withdrawal of the writ petition by the respondent.
For the reasons afore-said, this petition is accepted, the judgment of the Additional District Judge dated 2nd May, 1989 is declared to be without lawful authority and of no legal effect, with the result that the appeal filed by respondent No.3 shall be deemed to be pending before the District Court and shall be decided afresh on merits.
The parties shall appear before the District judge, Lahore, on 9th January, 1991, who may either hear the appeal himself or entrust to any other Additional District Judge. The appellate Court shall decide the appeal before 9th February,1991. The compliance of this order shall be reported to this Court. No orders as to costs.