CH. IJAZ AHMAD, J.- These brief facts out of which the presence appeal arises are as follows:
2. That the respondent purchased the disputed premises from one Muhammad Tufail vide registered sale-deed dated 21-2-1989 and filed ejectment petition on 4-10-1989 under Section 17 of the Cantonment Rent Restriction Act, 1963 for the eviction of the present appellant from disputed shop No. 1482-B Day Building, Lahore Cantt. On the grounds that the appellants committed default in payment of rent, subletting by appellant No. 1 to Muhammad Yousuf and Muhammad Younas co-appellants and on personal need. The appellants/submitted joint written statement along with preliminary objections. From the pleadings of the parties the learned Rent Controller framed the following: ISSUES.
(1) Whether the present petition is not maintainable in view of the preliminary objections taken by the respondents in their written statement? OPR
(2) Whether the respondent No. 1 is a rent defaulter? OPP
(3) Whether the respondent No. 1 has sublet the disputed premises to respondents Nos. 2 and 3?
OPP
(4) What is the rate of rent? O.P Parties.
(5) Whether the petitioner requires the disputed premises for his personal use and occupation in good faith? O.P.P
(6) Relief.
3. The Additional Rent Controller after completing all the legal formalities accepted the ejectment petition and decided Issue Nos. 2 and 3 in favour of the landlord and Issue No. 5 decided against the landlord; hence the present appeal.
4. The learned counsel for the appellant Syed Rashid Hareem contended that respondent purchased the disputed shop on 21-2-1989 and the ejectment petition was filed on 4-10-1989 and during this period the respondent did not inform the appellants regarding the purchase of disputed premises. The appellants sent the rent to the previous owners through money order in March, 1989 vide receipts Annexures R/I to R/7, but they refused to receive the money-order, therefore, after obtaining necessary permission from the Court the appellants deposited the rent in Court vide, Annex R-8 to R. 6 (rent deposited in the Court). The leamed counsel further contended that Additional Rent Controller decided the issue of personal need in favour of the appellant and the respondent could not agitate the same without filing cross-objection under Order 41, Rule 5 CPC and relied upon (PLD 1971 Peshawar 263).
The learned counsel further contended that both the issues regarding rent default and subletting have been decided against the appellant without application of mind by Additional Rent Controller.
The leamed counsel further contended that, judgment of the learned Rent Controller is result of totally misreading and non- reading of the documentary evidence as well as oral evidence. The learned counsel further contended that there was sufficient material that the appellant Muhammad Yousaf and Muhammad Younus were sub-tenant of Muhammad Azam but the learned Rent Controller decided issue of subletting against them in violation of the principle laid down by the Superior Courts and relied upon the following judgments:
(1) "Standard Insurance Comp. Ltd. v. Roshan Ali Bhintji" (1987 MLD 650)
(2) "Jamil Ahmad v. Abdul Karim" (1984 CLC 1815) (1984 CLC 2872)
(3) "Shaheen Oil Traders v. Imdad Ali Shah and 2 others" (1980 CLC 1558).
The learned counsel further contended that issue regarding personal need was rightly decided in favour of the appellant and relied upon (NLR 1980 Civil 158).
5. Mr. Muhammad Siddique Butt, leamed counsel for the appellant in the connected appeal; contended that leamed Rent Controller did not discuss all the evidence of the appellants which are official witness and did not discuss their documents, therefore, the judgment of the learned Additional Rent Controller is not sustainable in the eyes of law and relied upon:
(1) "Allem-ud-Din v. Muhammad Yasin" (PLD 1990 Lah. 42)
(2) "Saqib Brothers Jhang and another v. M/s. Ciba Geigy Pakistan Ltd." (PLJ 1991 Lah. 197)
(3) (1988 P.S.C. 206)
The learned counsel further contended on the basis of ratio of the above-mentioned judgments that the Rent Controller has decided the valuable rights of the parties and Rent Controller failed to discuss the evidence of the appellant, therefore, the judgment of the leamed Rent Controller is not sustainable in the eyes of law because the Rent Controller decided the case in violation of the mandatory principles of C.P.C.
6. The learned counsel Mr. Walayat Haidery, on behalf of respondent, contended that the present appellants filed joint written statement before the Rent Controller and in reply to para 1 of the petition they admitted that they have been paying rent at the rate of Rs.100/- to the original tenant of the shop; namely Ghulam Rasul. The tenancy right devolved upon his all legal heirs. It is further contended that learned Rent Controller, therefore, decided issue of subletting rightly in favour of the respondent. Further the learned Rent Controller vide his order dated 8-2-1990 directed the respondent to deposit rent but they failed to deposit the rent in the name of the respondent, therefore, they committed default and the judgment of the leamed Rent Controller was 'valid on the basis of the evidence adduced before him and relied upon: "Khwaja Ghulam Mustafa v. Waqar Ahmad" (PLD 1980 S.C. 9)
He further contended that default in payment of rent in the Court when he came to know that disputed premises were sold to the respondent in the month of February/March but they mala fide did not pay the rent to the respondent, therefore, the judgment of the trial Court is failed and relied upon: (1992 SCMR 1170). It is further contended that receipts of money order were. Not duly proved before the learned Rent Controller by the present appellant as the present appellant did not produce any witness from the postal Department, therefore, the judgment of the Rent Controller is valid and relied upon: "Muhammad Ali Tehrani v. Mst. Fozia Akhtar Ali" (1992 CLC 2068).
The learned counsel further contended that the appellant failed to produce agreement of tenancy with the original tenant and even oral agreement was also not produced, therefore, the finding of the leamed Rent Controller was justified and relied upon "M. Shaft v. The State"(1996 CLC 110).
The learned counsel further contended that he can support the judgment of the learned Rent Controller without filing cross objection as the appellant in para 1 of ground of appeal before this Court stated that order passed by the leamed lower Court is against law and facts, therefore, the whole judgment is under challenge. He can support the judgment and on the issue of personal need relied on the following judgments:
(1) "Lt. Col. (Retd.) Muhammad Hassan Safdar v. Malik Shabhir Ahmad and another" (1994 CLC 286)
(2) "Ch. Nazir Ahmad v. Mrs. Mariam Salauddin Khwaja" (PLD 1994 Lahore 252)
"Ch. Nazir Ahmad v. Mrs. Mariam Salauddin Khawaja" (1994 MLD 1809)
7. The leamed counsel for the respondent Mr. Muhammad Qasim Tahir, Advocate in the connected appeal contended that ejectment petition is itself a notice to the appellant but the appellant failed to deposit the*rent, therefore, they committed default in payment of rent and relied upon the following judgments:
(1) "Wali Muhammad v. Mukhtar Hussain" (1991 SCMR 224)
(2) (1995 SCMR 24)
(3) "Haji Allah Ditta v. Mst. Shehzadi Balqis and another" (1980 SCMR 41)
(4) (PLD 1973 Karachi 56)
8. The learned counsel for the appellants in rebuttal contended that Rent Controller vide order dated 8-2-1990 directed them to deposit tie rent and in compliance, the appellants deposited the rent in Court on the prescribed proforma and contended that proforma did not mention any column regarding the owner landlord of the premises, therefore, the appellant did not commit any default.
9. I have given my anxious consideration to the contentions of all the learned counsel for the parties and perused the record myself. The leamed counsel for the parties read the whole evidence as well as documentary evidence but he learned Rent Controller did not advert and discuss all the evidence in its judgment although provisions of CPC are not applicable in such proceedings but the principle of CPC are applicable.
10. Keeping the evidence, documents and the judgment in-question, in juxtaposition then the net result is that the leamed Rent Controller passed the judgment without discussing the evidence on record and specially documentary evidence; which is obligation and duty of the Rent Controller to discuss the same in its judgment. I have considered the submissions made by the learned counsel for the parties with care. I am fully persuaded to agree with the leamed counsel for the appellants.
On the other hand although present appellants/defendants had produced documentary evidence Exh. R. 1 to R. I6 yet the leamed trial Court has neither considered nor discussed the same and even trial Court did not discuss the oral evidence of the appellants. Believing the evidence of respondent/plaintiff the Additional Rent Controller was obliged to consider, discuss, believe/disbelieve the statements of the appellants/defendants so the impugned judgment is in fact one sided judgment, lt is a basic and fundamental principle of law that the learned Rent Controller, acting under the Cantonment Restriction Act; sought not a Court, decides valuable rights of the parties therefore, he is under obligation to apply his mind and take full notice of evidence of both the parties and to discuss the same in detail before deciding the case finally.
11. It is pertinent to mention here that in the present case,. The leamed Rent Controller while deciding Issues Nos. 2 and 3 discussed the evidence in general only.
12. In view of what has been stated above, these appeals are accepted for want of proper judgment and the case is remanded to the Additional Rent Controller Lahore Cantt. For fresh decision after hearing the arguments of learned counsel for the parties. Since it is an ejectment matter, therefore, learned Additional Rent Controller is directed to decide the controversy within two months. Parties are directed to appear before him on 29-7-1997.