' The dispute in the present petition relates to a shop bearing Property No.S.86-R-218 situate at Ferozepur Road, Lahore. This property was transferred to Kamal Din who filed an application for ejectment against respondent No.3 which was dismissed on 16th July, 1970 on the ground that there was no relationship of landlord and tenant between the parties. This order was assailed by Kamal Din by filing an appeal which was rejected on 21st of November, 1972. His second appeal (SA.O. No.157 of 1973) was also dismissed.
2. On 22nd of June, 1977 Kamal Din sold the shop in dispute to the present petitioner who on 11th January, 1982 filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, against the respondent seeking his eviction from the shop in dispute on the grounds of default in payment of rent and personal use., The application was resisted by respondent No.3 on the plea that there was no relationship of landlord and tenant between the parties. It was alleged that the shop in question was evacuee trust property vesting in the Evacuee Trust Property Board to whom the respondent had been paying rent regularly. An objection was also raised that in view of the dismissal of the earlier ejectment petition filed by Kamal bin the predecessor of the petitioner, the application was barred by section 14 of the Punjab Urban Rent Restriction Ordinance, 1959.
3. Out of the pleadings of the parties the Rent Controller framed the following three issues:--
(1) Whether the relationship of landlord and tenant exists between the parties? OPA
(2) Whether the petition is barred by section 14 of the Punjab Urban Rent Restriction Ordinance, 1959? OPR
(3) Relief.
4. By the order dated 3rd of December, 1983 the Rent Controller held that the application for ejectment was barred by section 14 of the Punjab Urban Rent Restriction Ordinance, 1959. He, therefore, proceeded to dismiss the ejectment petition without deciding on issue No.1. This order of the Rent Controller was affirmed by the Additional District Judge on 3rd of May, 1984, The petitioner has now filed this Constitutional petition.
5. It was submitted by the learned counsel for the petitioner that the Rent Controller and the Additional District Judge have acted illegally in non-suiting the petitioner on account of bar of section 14 of the Ordinance which had no applicability to the present case inasmuch as after the dismissal of the earlier ejectment petition, the circumstances had materially changed particularly in view of the order of the Chairman Evacuee Trust Property Board dated 17th September, 1976 (Exh.
P.12).
6. Mr. Rashid Rahim, learned counsel for the respondent, however, submitted that both the learned Rent Controller and the Additional District Judge were justified in holding that the application was barred by the principles of res judicata in view of the dismissal of the earlier ejectment petition filed by Kamal Din, the predecessor of the petitioner.
7. There is no denial that earlier an ejectment petition with respect to the same shop was filed by Kamal Din who claimed that he was transferee of the property in dispute from the Settlement Department and that the respondent was in, possession of the same as a tenant under him. In those proceedings the respondent had denied the relationship of landlord and tenant. One of the pleas taken up by the respondent was that the property was evacuee trust in nature vesting in the Evacuee Trust Property Board. The Rent Controller dismissed the ejectment petition on 16th July, 1970 holding that respondent was not a tenant under the petitioner and that the Evacuee Trust Property Board which was claiming to lx the owner of property was a necessary party to the proceedings. These findings were upheld by the Additional District Judge who dismissed the appeal filed by Kamal Din on 22nd of November, 1972. Kamal Din thereupon filed S.A.O. No.157 of 1973 which was however, dismissed for non-prosecution on 12th May, 1980.
8. If the matter had rested there, any subsequent petition filed with respect to the property by Kamal Din would obviously be barred by the principle of res judicata. However, it appears that after having lost the case before the Additional District Judge, Kamal Din filed an application under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which was decided by the Chairman of the Evacuee Trust Property Board under section 8 of the Act (XIII of 1975) and by virtue. Of his order, dated 17th September, 1976 he proceeded to validate the transfer in favour of Kamal Din. Subsequently, on 22nd of June, 1977 the shop in question was purchased by the petitioner from Kamal Din. In view of the later development which had taken place as a result of the order of the Chairman, dated 17th September, 1976 it could not be held that the petition was barred by section 14 of the Punjab Urban Rent Restriction Ordinance, 1959. ,The argument of the learned counsel for the respondent that the order of the Chairman had made no substantial contribution towards the change of circumstances is devoid of any merit. It was the case of the respondent in the earlier round of litigation that the property was evacuee trust in nature. The Chairman of the Evacuee Trust Property Board, the competent authority under the law validated the transfer in favour of Kamal Din on 17th September, 1976. From that date onwards Kamal Din became the full owner of the shop and therefore could claim to be entitled to receive rent on account of his title to the property which stood established. Unfortunately, the tribunals below failed to realise that at the time when the earlier ejectment petition was filed, Kamal Din did not have any title or had at the most an invalid and incohate title which was validated subsequently.
This change was not given due consideration and was brushed aside by the Rent Controller and the Additional District Judge without realizing that a person could be the landlord on the basis of his title and ownership. (See Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1). That being so it is obvious that the orders of the Rent Controller and the Additional District Judge are not sustainable. As, however, both of them had not decided issue No.1 relating to the existence of relationship of landlord and tenant between the parties, there is no option but to remand the case to the Rent Controller.
' As a result of what has been stated above this petition succeeds, the order of the learned Rent Controller and the judgment of the Additional District Judge dated 3rd December, 1983 and 3rd of May, 1984, respectively, are declared to be without lawful authority and of no legal effect with the result that the application for ejectment filed by the petitioner against respondent No.3 shall be deemed to be pending before the Rent Controller and shall be decided afresh in accordance with law.