' I intend to decide the Civil Revision No,1010 of 1999 and Writ Petition No,11588 of 1999 by one consolidated judgment having similar facts and law.
2. Brief facts out of the which these cases arises are that respondent filed ejectment petition against the petitioner on 4-12-1996 before the Rent Controller, Jhang on the ground of personal need. During the pendency of the ejectment petition petitioner filed suit for specific performance as the agreement to sell was executed between the predecessor-in-interest of the petitioner and respondent on 5-4-1986. Contents of the agreement to sell reveals that total consideration amount of the property in question was mentioned as Rs,60,000 which was paid by the petitioner to respondent vide receipt dated 5-4-1986.
3. The learned trial Court consolidated both the cases vide dated 4-1-1999. Trial Court decreed the suit of petitioner for specific performance and dismissed the ejectment petition vide judgment and decree dated 3-2-1999. Respondent being aggrieved filed two appeals before the District Judge, Jhang who entrusted the same to the learned Additional District Judge, Jhang. The learned Additional District Judge, Jhang accepted the appeals on 28-4-1999 on the ground that the trial Court wrongly consolidated the two matters vide order dated 4-1-1999 in violation of the law laid down by this Court in 1996 MLD 265.
4. Learned counsel for petitioner stated that judgment of the first appellate Court is not in accordance with law laid down by the superior Courts in the following judgments: ' PLD 1993 Lah. 97 and 1995 MLD 446.
' He further stated that trial Court was justified to consolidate both the suits as the controversy between the parties inter dependent upon each other, in both the suits. He further stated that judgment of the First Appellate Court is without applying its independent mind as respondent did not challenge order dated 4-1-1999 for consolidation of the two suits immediately. The respondent awaited the decision on the merits. Therefore, respondent are estopped to raise the aforesaid ground before the first appellate Court on the well-known principle of estoppel and waiver. He further stated that the First Appellate Court wrongly relied upon 1996 MLD 265 which is distinguished on facts and law in the cited case. All the evidence in the ejectment petition was recorded whereas no evidence as recorded in the suit for specific performance but in the present case, the trial Court consolidated both the cases immediately.
5. Learned counsel for the respondent raised preliminary objection that Civil Revision is liable to be dismissed as the petitioner failed to attach all the documents alongwith the revision petition.
Therefore, same is liable to be dismissed on this short ground as is evident from section 115(2), C.P.C. He further stated that learned counsel for petitioner failed to point out any illegality committed by the first appellate Court. He further stated that the Rent Court is not a Civil Court, and therefore, judgment of the first appellate Court is in accordance with law and this aspect was fully explained by this Court in latest judgment 1996 MLD 265. He further stated that petitioner malafidely filed the suit for specific performance at a latter stage as the ejectment petition was filed by the respondent on 4-12-1996 whereas the suit for specific performance was filed by the petitioners on 5-9-1998. He further stated that only one witness was recorded in rent case.
Therefore, learned first appellate Court was justified to remand the case as the rent proceedings of the suit for specific performance was entirely different on the different cause of action. Therefore, both will not be decided by the Rent Controller himself, by consolidated judgment.
6. Learned counsel for petitioner in rebuttal stated that when the two judgments are at variance then the matter may be referred to the larger Bench as the principle laid down by the Hon'ble Supreme Court in PLD 1995 SC 423.
7. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record myself. It is settled proposition of law that Civil Court has ample jurisdiction to consolidate two suits which are inter dependent upon each other to avoid multiplicity, conflicting judgments to prevent abuse of powers to secure the ends of justice. I am fortified by the following judgments:-- ' Abdul Razzaq's case PLD 1997 Lah. 1 and 1981 CLC 443.
' It is admitted fact that respondents filed ejectment petition against petitioner No,1 on 4-12-1996 before the learned Rent Controller, Jhang. The petitioners also filed suit for specific performance against respondent before the Civil Court having the powers of Rent Controller on 5-9-1998. The learned Rent Controller consolidated both the suits vide interim order dated 4-1-1999. It is also admitted fact that neither the petitioner nor the respondents challenged the interim order dated 4- 1-1999 till the Rent Controller decided both the suits vide consolidated judgments dated 3-2-1999. It is also admitted fact that consolidated issues were framed by Rent Controller; both the parties adduced their evidence to prove their respective issues. It is also admitted fact that learned counsel for the petitioners relied upon Dr. Arslan Razzaq's case PLD 1993 Lah. 97; whereas the respondents' counsel relied upon the judgment of this Court in Manzoor Ahmed's case 1996 MLD 265, before the 1st Appellate Court. The learned 1st appellate Court remanded the case while relying upon the judgment of this Court in Manzoor Ahmad's case supra. The aforesaid proposition of law has been considered and decided by the then Mr. Rustam S. Sidhwa, J., in Liaqat Ali's case 1983 CLC 1637 and observed as follows:-- "As regard the first submission, even if it be assumed that the learned Rent Controller consolidated the petitioner's suit with the respondent's eviction application and after framing consolidated issues decided both the cases, it does not affect the position, as the Rent Controller has the powers of Civil Judge, 1st Class also even assuming that there is any technical defect the same cannot enure for the benefit of the petitioner, as the judgment is a consolidated judgment and issue No,2 has been decided after taking into consideration all the evidence. The petitioner himself having agreed to the consolidation, cannot be allowed to object to the same now in Constitutional jurisdiction. The submission, therefore, has no basis and is rejected."
' The aforesaid proposition of law was also considered in Major Retd. Afzal Muhammad Khan's case PLD 1980 Lah. 33 and observed as under:-- "It is obvious that the consolidation of the ejectment petition was not against any of the provisions of Rent Restriction Ordinance. Even otherwise the main object of consolidation is to avoid the possibility of conflicting decisions when the same dispute between the same parties is determined by two different Courts of concurrent jurisdiction and to eliminate the multiciplicity of litigation when such parallel disputes are heard by the same Court. There was marked similarity in the subject-matter of the four petitions. The consolidation was, thus, quite appropriate for disposal of these cases."
' The aforesaid proposition of law was also considered by my learned brother Malik Muhammad Qayyum, J., and finds approval from the judgment of this Court in Dr. Arslan Razzaq's case (supra) in Muhammad Amin's case 1995 MLD 446. It is pertinent to mention here that these judgments were not cited in Dr. Arslan Razzaq's case and Manzoor Ahmed's case. The learned counsel for respondents failed to point out by consolidating both the suits, the learned trial Court violated any provisions of Rent Restriction Ordinance. It is settled proposition of law where no procedure has been provided in the Rent Restriction Ordinance, it is just and convenient to apply the principle laid down by Civil Procedure Code for the conduct of the proceedings. It is also settled proposition that the Controller hz.s discretion to follow and apply the provisions of the C.P.C. If he considers necessary as the principle laid down by the Hon'ble Supreme Court in 1982 SCMR 33 and PLD 1976 SC 422 meaning thereby Rent Controller can follow equitable principles of C.P.C. But he is not to overlook express provisions of Ordinance. Reliance is placed on PLD 1983 SC 155. It is admitted fact that respondents did not object the consolidation of two cases by interim order dated 4-1-1999 by the Rent Controller, therefore, respondents are estopped to raise objection regarding consolidation of two suits on the well-known principle of approbate and reprobate in Ghulam Rasul's case PLD 1971 SC 376. It is also settled proposition of law that Court should not remand the cases in a mechanical way without conscious application of mind. Reliance is placed on Manzoor Hussain's case PLD 1998 Lah.
172. It is admitted fact that parties and adduced their evidence, after consolidation of both the suits meaning thereby the respondent accepted the jurisdiction of trial Court. The respondent is estopped to resile from this situation when the case has been finally decided against him on the well-known principle of waiver and estoppel as earlier cited in Liaqat Ali's case supra and Major Retd. Fazal Muhamamd Khan's case was not cited before my learned brother Mian Nazir Akhtar, J., in Manzoor Akhtar's case wherein it was observed that in such circumstances the Civil Judge hearing the suit and trying ejectment petition as a Rent Controller should consolidate both the proceedings so as to ensure fairness to both the parties. It is merely technical defect on the basis of which the 1st Appellate Court remanded the case to the trial Court to decide both the cases separately. It is settled proposition of law that technicalities should not be hindrance in the way of justice as the law laid down in the following judgment:-- ' Alam Din's case 1999 MLD 2140; 1999 MLD 2202; Khuda Yar's case PLD 1975 SC 678 and Sher Muhammad's case PLD 1989 SC 532.
' In view of for what has been discussed above, this revision petition and writ petition are accepted and the cases are remanded to the 1st Appellate Court meaning thereby the appeals filed by the respondent shall be deemed to be pending adjudication before him. The learned 1st Appellate Court is directed to decide both the appeals on merits as expeditiously as possible. The parties are directed to appear before the 1st Appellate Court on 15-12-1999.