' MUHAMMAD AFZAL ZULLAH, J.-This review application arises out of an order by a learned Single Judge (not available now in this Court) whereby the petitioners' appeal (S. A.
0. No, 302 of 1969) was dismissed in limine.
2. The petitioners, claiming to be the landlords, had applied for the eviction (on ground of default in payment of rent) of Muhammad Hussain deceased, respondents' predecessor-in-interest (hereinafter referred to as the 'tenant). The issue of relationship of landlord and tenant was decided by the learned Rent Controller against them. The learned Controller noted the tenant's plea of the denial of execution of rent note (relied upon from the petitioners' side) and also that "it is claimed that the respondent came in possession as a trespasser". The rent note allegedly executed by the tenant was on the record but had, on account of some mistake, not been formally proved. The tenant had admitted having executed a rent note but had added that "the rent note pertains to another shop." Thus, the controversy revolved round the question of the trespass and the rent note. The petitioners made application for additional evidence to summon marginal witnesses of the rent note but it was refused on the grounds that an earlier application for comparison of writing by expert was not pressed and thus the principle of res judicata applied and further that the rent note having been put to the tenant during his cross-examination for ascertaining his position qua the tenancy, it was petitioners' duty to produce evidence at earliest opportunity. It appears that earlier, another similar attempt made through an application (second in sequence) met with failure because the application was not "properly presented". Having disallowed the petitioners to lead evidence on the disputed rent note, learned Rent Controller, probably, felt it difficult to ignore it all the same and compared its contents with admitted signatures and doubted its authenticity. Even when making this comparison and after that, he did not afford opportunity to the petitioners to dispel his doubts about the signatures.
3. The learned lower Appellate Court also dealt with the application moved for additional evidence at that stage and the controversy qua earlier opportunity of producing evidence, in almost similar manner. Despite specific claim and request in that behalf in the grounds of appeal that the signatures did tally, the learned lower Appellate Court did not compare the signatures to confirm or differ with the opinion of the learned Controller in this behalf.
4. The second appeal in this Court was dismissed in limine. The order dated 23-2-1970 reads as follows :- "(1) Heard.
(2) No ground for interference with the finding of fact that the relationship of landlord and tenant did not exist between the parties recorded concurrently by the Courts below is called for.
Dismissed."
5. The petitioners sought a certificate for L. P. A. From the learned Single Judge mainly on the ground of non-consideration of points taken and urged on the question of additional evidence qua the rent note. The request for certificate was allowed on 4-5-1970 with the following order :- "The applicant's second appeal against the order dated 28-5-1969 passed by the learned Additional District Judge, Sialkot, whereby he dismissed the first appeal against the order of the Rent Controller, was dismissed by me in limine on 23-2-1970. A certificate of fitness to appeal against that order is now prayed. Counsel has stressed before me that the technical provisions of the Code of Civil Procedure are not applicable in proceedings before the Rent Controller, and, thererfore, the reason for rejecting his application for production of additional evidence, namely, that an earlier application on the same subject was dismissed, was not a sufficient ground for refusing the prayer to produce additional evidence. It is submitted that the learned Additional District Judge did not properly appreciate the prayer for production of additional evidence either.
This aspect of the case does not appear to have been presented before me when the case was heard by me on 23-2-1970, but I feel that this question did arise for consideration. In these circumstances, I would certify this case as fit for appeal."
6. When the L. P. A. Came up before a learned Division Bench, it refused to entertain the same on the ground of its being "premature". The appeal was dismissed on 31-8-1970 with the observation that "in the circumstances it appears to us that the appropriate course for the appellant would be to apply for the review of the order passed by the learned Single Judge on the 23rd February 1970 by which the S. A.
0. Was dismissed in limine".
7. The petitioners then moved this review application on 1-9-1970. Ground (i) taken in the memo. Of review reads as follows :- "(I) that the order dated 23-2-1970 of Mr. Justice Nasim Hassan Shah, it is submitted with great respect, needs review inasmuch as while deciding the case the learned Judge ignored the points taken in grounds Nos. 1 to 5 of the S. A. 0 and actually argued at the time of hearing of the S. A.
0. To show that the rejection by Courts below of application for permission to produce the additional evidence to prove the rent note and payment was legally not sustainable and that this additional evidence should have been allowed in the interest of justice."
8. The learned Single Judge took note of all the foregoing circumstances about these proceedings and allowed the review application with a detailed order of remand to the learned Rent Controller passed on 25-2-1975. Although most of the respondents were represented (only two were proceeded ex parte), order dated 25-2-1975 was recalled on 19-2-1976 on an application from the respondents' side containing explanation with regard to the absence of their learned counsel at the time of hearing.
9. The review application, on face, appears to be barred by time. The petitioners have been diligently pursuing the remedy by way of certificate for and the L. P. A. And did not lose time in filing this petition. Their conduct is bona fide. No objection has been raised to the application in this behalf. The case is covered under section 14 of the Limitation Act. In any case, we condone the delay under section 5 of the Limitation Act.
10. We have have heard both the learned counsel for the parties at length. Learned counsel for the respondents has raised two-fold preliminary objection: one, that as the appeal (L. P. A.) was competent and was also B preferred, therefore, review is barred under Order XLVII, rule 1 (clause (a); two, that there is no mistake or error on the face of the record of the S. A.
0., therefore, the review is otherwise not permissible.
11. It is an admitted fact that the learned Single Judge had not considered the point on which certificate for L. P. A. Was granted. The learned L. P. A. Bench thought (and we are not called upon to review that opinion) that the point not having been considered by the learned Single Judge, the proper remedy was by review application and not an L. P. A.f Accordingly, the appeal was treated as "premature" and dismissed as such. The bar in Order XLVII, rule 1 qua "preferment" of an appeal, which must otherwise be "competent", would not, in the circumstances, apply in this case. The mistake or error was apparent on record, therefore, the learned Single Judge himself had granted the certificate for L. P. A. Grounds Nos. 1 to 5 in the memo. Of the S. A.
0., related to the additional evidence on question of execution of rent note. They were the mainstay of the petitioners. Both the learned Single Judge as also the learned L. P. A. Bench felt that consideration of this question was essential for the correct determination of the S. A.
0. The case would also fall under the clause "or for any other sufficient reason", in addition to and on the analogy of "on account of some mistake or error apparent on the face of the record." The preliminary objection has no force and is overruled.
12. After hearing the learned counsel on merits, we are in respectful agreement with the views expressed by the learned Single Judge in the order dated 25-2-1975 and adopt the same for and in this order. We, in addition, are of the view that even if the principle of res judicata (to the proceedings before a Rent Controller) was applicable, it did not apply to miscellaneous application for summoning of additional evidence. An ad in any case, all the rules of this principle could not be attracted in this case. The first application was for comparison of the disputed and admitted signatures by an expert and the same was not pressed; the second was, as noted in the impugned orders, not properly presented, therefore, the third for examination of marginal witnesses was not barred by res judicata. The appeal merits acceptance on this point alone. However, the learned Additional District Judge fell into serious error by applying the considerations which weigh with appellate Court when deciding applications under Order XLI, rule 27, C. P. C. Here, the statute, i,e,, West Pakistan Urban Rent Restriction Ordinance, in section 17 (3) gave him power and he was under duty, ignoring the technicalities, to hold/order further inquire if it was justified on merits.
Restrictions contained in Order XLI, rule 27 did not apply to his powers under section 15 (3) of the Ordinance. Even if they were applicable, this was a fit case for additional evidence. It was highly difficult, if not impossible, to pronounce the judgment on the question of relationship of landlord and tenant because of somewhat vague plea/position taken by the tenant with regard to its execution. Leaving aside other things, the learned Additional District Judge was bound to go through the exercise of himself comparing the disputed signatures with the admitted ones and to decide the question whether the opinion formed by the learned Controller in this behalf (which had highly prejudiced the petitioners' case without opportunity of rebuttal on G this point), was correct or not. We are convinced that injustice has been done to the petitioners. The failure of justice was due to lack of application of correct law and principles by the learned Controller and the learned Additional District Judge. We accordingly set aside the impugned order and remand the case to the learned lower Appellate Court with the direction to hold further inquiry and admit additional evidence under section 15 (3) of the Ordinance. Both the parties would be allowed opportunity of evidence. We have not remanded the case to the learned Controller because considerable time (four years) has been consumed in the High Court in these proceedings after the remand order dated 25-2-1975. The first appeal shall be deemed to be pending; and shall be decided afresh in accordance with law. There shall be no order as to costs.