' This is tenant's second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, calling in question his eviction ordered by a learned Rent Controller on ground of personal requirement of respondent/landlord. In appeal, however, the learned District Judge under a patent mistake found that the appellant, in addition to being liable to eviction on ground of personal requirement of the respondent, was also a rent defaulter.
2. The learned Rent Controller, on pleadings of the parties, had framed the issues on merits as relating to the personal requirement and damage to the property. There was no issue nor any assertion in the pleadings with regard to the default. The learned lower Appellate Court, however, when stating preliminaries about the case noted the first issue as relating to default.
3. Admittedly in this case there was no assertion in the application for eviction filed by the respondent that the appellant bad committed default in payment of rent, nor, there was any reply in that behalf in the written statement filed by the appellant. The learned District Judge obviously committed a mistake by considering that this case involved the issue of default as well. He not only thought it so but also decided this issue in para. 7 of the impugned judgment.
4. The mistake, it appears, has arisen on account of the fact that there were two appeals before the learned Judge in which the landlord was the same but the tenants were different. In the other appeal, apart from the question of personal requirement and damage. There was also an issue relating to default. Learned Judge, it appears, by mistake, read the record of the other file when deciding this appeal and obviously ignored the record of this case when deciding the appeal.
5. Learned counsel for the respondent has tried to argue that it should be assumed that the learned Judge correctly read the record of this case in so far as the other issues including that of personal requirement are concerned. This is not possible. If the learned Judge read the record of another case with regard to default in payment, of rent, it cannot be assumed that he read the record of this case qua the issue relating to personal requirement, as also the other issues.
6. In view of the above patent mistake committed by the learned District Judge, I hold that the first appeal has not been properly disposed B of by application of mind to the facts of the case. This appeal is allowed. The impugned lower appellate judgment is set aside and the case is remanded to the learned District Judge for decision of the appeal afresh in accordance with law. Costs shall follow the event.