This second appeal has been preferred by Khawaja Waliullah and 3 others against the order of the learned District .Fudge, Chitral, dated 18-8-1997.
2. Facts of the case are that Haji Amir Maqsood filed an application under the Rent Restriction Ordinance against Khawaja Rehmat (now dead) predecessor---in-interest of appellants 1 to 3 for his eviction from the suit shop situated at New Bazar, Chitral on the ground of personal need and default in payment of rent as is mentioned in the petition.
3. After framing the issues in the light of the pleadings of the parties and recording evidence the learned Rent Controller/Aala Illaqa Qazi, passed the ejectment orders against the respondent on 4-3-1997 on the ground of personal need. Respondent had claimed in the written statement that the superstructure of the shop was owned by him. The Rent Controller in his finding on issue No -- observed that the cost of superstructure can only be adjudicated upon by the Civil Court, therefore, no finding was given by him to this effect. Not contented with the aforesaid order of the learned Rent Controller the legal heirs of the respondent Khawaja Rehman's who had died during the pendency of the suit preferred an appeal before the learned District Judge, Chitral. The appeal was vehemently contested by the respondent before the District Judge and vide his order, dated 18-8- 1997 the learned Appellate Court was of the view that the respondents were defaulters in payment of rent hence partially maintained the ejectment order, but instead of finally concluding the matter with the consent of the counsel for both the parties continued the proceedings and directed a commission to assess the value of the superstructure of the disputed property, therefore, the Engineer District Council namely Khurshid Azad was appointed as Commissioner with a direction to submit his report before 9-9-1997. In the impugned order the learned District Judge has observed that the appellants had also filed a civil suit with regard to the improvements made on the suit property and in order to avoid multiplicity of suit and further litigation, he was constrained to refer the matter to the Commissioner to ascertain the value of the superstructure in the interest of the parties on the basis of a compromise. It is true that the fact of superstructure is beyond the jurisdiction of the Rent Controller but in the instant case the parties themselves through their counsel have agreed to settle the dispute which is still pending before the District Judge, Chitral. It is important to mention here that the appellants have not challenged the appointment of Commissioner before the proper forum.
4. The learned counsel for the appellants argued that the impugned order was illegal and without jurisdiction as according to him the District Judge cannot dismiss the appeal on the question of default without recording proper evidence. He also argued that the Rent Controller had no jurisdiction to make an enquiry in the capacity of Rent Controller as is envisaged under section 15(5) of N.-W.F.P. Urban Rent Restriction (Amendment) Ordinance, 1987. According to the learned counsel this amendment has not been extended to PATH. The learned counsel for the respondent argued that the ejectment order had been passed by the Rent Controller on 4-3-1997 and that the present appeal was in continuation of the ejectment proceedings. According to him the matter is still pending before the Appellate Court and no final decision has so far been made. He -alleged that the matter is premature and is liable to be ignored as according to him the appellants wanted to prolong the agonies of the respondent.
5. Having considered the arguments of both the parties, 'I am of the view that the appellants have come to this Court against an order to which they are consenting parties, therefore, they are estopped by their conduct to agitate the 13 matter when finally no adjudication has been made against them. The learned District Judge in his discretion has followed the equitable principles of law to avoid tine multiplicity of suit at the request of: both the contesting parties. The appellants, therefore, cannot approbate and reprobate at this stage, as the matter is still pending before the proper forum. If the report of the Commissioner is not accepted to them they can object to the same. The learned counsel for the appellants was unable to give the correct information with regard to the pendency of civil suit in respect of the improvements made by the appellants. It' has been laid down in PLD 1964 SC page 459 that the Rent Controller was not bound to follow the procedure laid down in the Code of Civil Procedure. He has C been given powers under the Rent Restriction Ordinance to hold such an enquiry as he thinks fit.
6. Accordingly the appeal before the District-Judge was in continuation of the rent proceedings and Appellate Court had passed the impugned order on the principle of equity, in order to lessen the agonies of the parties by giving them proper opportunity to adduce their claim before the Commissioner. Since the contesting parties have bound themselves through a voluntary compromise, therefore, I see no merits in the appeal which is dismissed with no order as to costs.