' This judgment shall dispose of Writ Petition No,1521/87 and Writ Petition No,4103/87, which were directed against the same judgment of the Additional District Judge, Faisalabad, dated 15th of January, 1987.
2. On 7th of May, 1973, an order of ejectment was passed by the Rent Controller, Faisalabad in favour of the petitioner against respondents Nos.4 to 13. The present dispute arises out of the proceedings for execution of this order of ejectment. According to the petitioners in Writ Petition No,1521/87, possession of a part of the property was obtained by them in execution of the order while the judgment-debtor (respondents Nos.4 to 13, with a view to frustrate the execution with regard to the remaining part of the property inducted respondents Nos.1 to 3 into possession of a room. The position taken by respondents Nos.1 to 3, who are petitioners in Writ Petition No,4103/87, however, was that the possession of the entire property covered by the ejectment order dated 7th May, 1987 stood delivered, to the decree-holder and the decree stood satisfied and the second application filed against them by the decree-hollers was absolutely unwarranted.
3. The controversy in this respect was decided by the Rent Controller who dismissed the objection petition filed by respondents 1 to 3 in Writ Petition No,1521/87 and held that these respondents were in possession of the room which was a part of the property from which respondents 3 to 6 were ordered to be ejected and as respondents Nos.1 to 3 were not in possession of the property in their own right, they were liable to deliver possession to the decree-holder.
4. Aggrieved by this order of the Rent Controller dated 28th May, 1985, respondents 1 to 3 filed an appeal which came up for hearing before the Additional District Judge, Faisalabad, who on 15th January, 1987 set aside the order of the Rent Controller, remanded the case to him with a direction that he should appoint some Engineer, who should visit the spot to demarcate the property in accordance with the rights in property and decide it keeping in view that report. These two petitions assail this order of the Additional District Judge.
5. Mian Nisar Ahmed, the learned counsel representing the petitioners in Writ Petition No,1521/87 has objected to the remand of the case by the Additional District. Judge to the Rent Controller as being wholly unjustified and has further argued that the Additional District Judge, by directing the Rent Controller to decide the matter in accordance with the report of the Engineer to be appointed as a Local Commissioner, has virtually ordered the Rent Controller to abdicate his functions in favour of the Local Commissioner.
6. Mr. Jari Ullah Khan, learned counsel for respondents Nos.1 to 3 in Writ Petition No,1521/87 and for the petitioner in the connected writ petition too has objected to the remand of the case as according to the learned counsel it was proved on the record that the order of ejectment dated 7th May, 1973 stood fully satisfied and there was nothing left for the Rent Controller to execute.
7. I have considered the respective contentions of the learned counsel for the parties and perused the record, and found that the order of remand passed by the Additional District Judge is wholly unjustified. Admittedly, both the parties had led evidence before the Rent Controller in support of their respective stands, which included the report of a Local Commissioner. The Additional District Judge without appraising the evidence already on the record, proceeded to observe that it was difficult for him to reach any conclusion from the evidence. This approach can hardly be countenanced. It was incumbent upon the Additional District Judge to have first applied his judicial mind to the evidence and to have then decided the appeal. Furthermore, the grievance of the learned counsel for the petitioner that the direction to the Rent Controller to decide the case in accordance with the report of the Local Commissioner to be appointed by him is against law is fully justified. The learned counsel for the respondent too made a similar grievance.
8. Mr. Jari Ullah Khan, learned counsel appearing for the contested respondents also submitted that it was established on the record through various documents, especially the warrants of possession issued in the earlier execution petition and the report of the Bailiff that the order of ejectment stood fully executed and as such any second execution petition filed by the decree- holder was totally unwarranted. Unfortunately, the Additional District Judge completely ignored this aspect of the matter and no reference was made by him to the documents relied upon by the learned counsel for the respondent.
9. It needs also be recorded that the Additional District Judge was reversing the findings of the Rent Controller and was under the law obliged to take note of the reasoning which had prevailed with the learned Rent Controller for deciding the case. It is again unfortunate that no effort to do so was at all made by the Additional District Judge.
As a result of what has been said above, both these petitions are accepted, impugned judgment of the Additional District Judge dated 15th January, 1987, is declared to be without lawful authority and of no legal effect, c with the result that the appeal filed by the respondents 1 to 3 in Writ Petition No,1521/87 shall be deemed to be pending before the Additional District Judge and shall be decided afresh in accordance with law. The parties shall bear their own costs.