TANVIR BASHIR ANSARI, J.--- This first appeal has been directed against the order dated 7.5.2002 whereby a learned Rent Controller, Rawalpindi, Cantonment accepted the eviction petition of respondents against the petitioners.
2. The brief facts are that ejectment petition was field under Section 17 of the Cantonment Rent Restriction Act, 1963 by the respondents against the appellants on 27.9.1999 on the grounds of personal bona fide requirement and damage to the shop in question. The ejectment petition was contested by the appellants who inter alia took the preliminary objection that the relationship of landlord and tenant does not exist between the parties. The appellants further controverted the grounds urged by respondents for their eviction. While the respondents claimed to be the owners/landlords of the shop in question on the basis of registered deeds of gift executed by Allah Bux father of the respondents in their favour, the appellants controverted the ownership of respondents on the ground that it was Allah Bux who continued to be the owner of the shop in question and whose name is still recorded in the relevant record of the Cantonment Board as such.
It was also contended by the appellants that all rent due has been paid by them to the said Allah Bux through cheques and this factum was not denied by respondents who have acknowledged the said payment and did not base the ejectment petition on the ground of default. _ 3. The learned Rent Controller framed a solitary issue :- ISSUE:- Whether there exists relationship of landlord and tenant between the parties? OPP
4. In support of their contention Muhammad Hanif respondent appeared as his own witness and also produced certified copies of the gift deeds Ex.P.1 and Ex.P.2 in favour of both the respondents besides producing the copy of power-of-attorney in his favour made by respondent No. 2.
Although this witness made a statement in respect of their bona fide personal requirement, he was cross-examined only with regards to the objection to the existence of relationship of landlord and tenant between the parties.
5. On the other hand, the appellants produced Jamal Abdul Nasir a representative of M.E.O. As RW.1 besides producing the appellant No. 7 as RW.2. The learned Rent Controller, vide order dated 7.5.2002 found that relationship of landlord and tenant .Exists between the parties and proceeded to order the eviction of the appellants straightaway.
6. The learned counsel for the appellant submits that the learned Rent Controller has erred in procedure as well as in law in ordering the eviction of the appellants without rendering any finding upon the question of bona fide personal need of the respondents or the allegation of damage to the property in question. He further submits that despite the fact that respondent No. 1 appearing as his own witness and made a statement regarding his bona fide personal requirement yet it would not be of any avail to the respondents despite the fact that he was not cross-examined by the appellants, for the reasons that no issue was struck in this behalf and no findings has been rendered by the Rent Controller. The question of alleged damage is dealt within a similar manner.
7. On the contrary, the learned counsel for the respondents submits that the learned Rent Controller is not bound by any rigours of procedure as contained in the Civil Procedure Code and was not obliged to frame any specific issue. He submits that the order of eviction was proper as respondent No. 1 had supported the grounds of personal requirement through his statement which remained cross-examined by the appellants and would be deemed to have been admitted.
8. Arguments have been heard and record perused.
9. There is no cavil with the proposition that the learned Rent Controller acting under the provisions of Cantonment Rent Restriction Act, 1 963 is not bound to follow the procedures as provided by the Civil Procedure Code. It is also stated that in this view of the matter, it is not incumbent upon the Rent Controller to have framed any formal issues. The procedure followed by the Rent Controller, however, suffers from the material defect that while he proceeded to frame the solitary issue regarding the relationship of landlord and tenant, he did not follow a consistent procedure and omitted to frame issues regarding the personal need and damage as alleged. This omission is material as the appellants were misled in assuming that only issue in the field were relating to the relationship of land and tenant and thus did not proceed to cross-examine the respondent No. 1 regarding his statement in respect of the alleged personal requirement.
10. The learned counsel for the appellant has assailed the findings of the Rent Controller upon the issue of relationship of landlord and tenant on the ground that the property continues to vest in Allah Bux and that the respondents had failed to show their ownership from the record. This submission is without force. The appellant No. 1 while appearing as RW.2 had admitted that rent of the property in question was received by Muhammad Hanif respondent No. 1. Even otherwise the appellants have not been able to rebut the evidence in the form of registered gift deeds existing in favour of respondents. The finding of the Rent Controller regarding the existence of relationship of landlord and tenant is un-exceptionable.
11. The submissions made by the learned counsel for the respondents that the learned Rent Controller was not obliged to frame any issue could be considered if infact no issues were framed at all. However, by framing of one issue and non-framing of the others a material irregularity has been committed which has led to miscarriage of justice. It is also noted that the learned Rent Controller has not rendered any finding upon the question of personal requirement or damage.
There was no question of default in the payment of rent which was involved in the case. The appellant could not be straightaway ordered to be evicted after the finding of the learned Rent Controller upon the issue of relationship of landlord and tenant alone.
12. Resultantly, this appeal is accepted, the impugned order dated 7.5.2002 of the Rent Controller is set aside and the case is remanded to the lower Court with the direction to frame all relevant issues which arise from the divergent pleadings of the parties and decide the case afresh after giving an opportunity to both the .Parties to produce evidence. The ejectment petition was filed as far back as on 27.9.1999, the learned Rent Controller shall decide the ejectment petition finally within three months. Parties to bear their own costs. .