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Writ petition No. 1987 of 1981, heard on 17th January, 1982.

---‑r S. 33 and West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Evidence in civil suit by Rent Controller‑ Tenant (petitioner) disputing tenancy and instituting suit for declaration of title to disputed property‑Tenant's counsel in ejectment petition and civil suit different‑Neither tenant nor his counsel in ejectment petition consenting to use of evidence recorded in civil suit for disposal of ejectment case‑Rent Controller, on basis of statement of tenant's counsel in civil suit made in its trial, deciding ejectment petition‑Rent Controller's decision upheld in appeal by Additional District Judge‑Held, Rent Controller's judg ment formulated on no legitimate evidence upholding same as well as judgment of Additional District Judge cannot stand scrutiny of High Court‑Judgments of both Courts set aside and case remanded for fresh decision.

Nisar Ahmad Butt for Petitioner.

Muhammad Anwar Bhindar for Respondent.

Date of hearing: 17th January, 1982.

In view of the order proposed to be passed the facts relevant for the purpose of disposal of this writ petition which assails the validity of the order of the learned Rent Controller, Gujranwala, respondent 1, dated the 21st May, 1980, accepting respondent 3's application under section 13 of the Punjab Rent Restriction Ordinance, 1959, for eviction of the peti tioner from the property in dispute and of the learned Additional District Judge, Gujranwala, respondent 2, dated the 15th March, 1981, affirming in appeal the order of the learned Rent Controller may be shortly stated. Feroze Din, respondent 3, moved before the learned Rent Controller, Gujranwala, application for securing ejectment of Muhammad Hussain, petitioner, from the property hearing no. B‑XXV‑4‑S‑16/12 situate in Gujranwala. The petitioner disputed the existence of tenancy and institu ted a civil suit for obtaining a declaration of his title to the property in question. Admittedly neither the petitioner nor his counsel in the eject ment application consented to the use of the evidence recorded on the file of the civil suit brought by him for the purpose of disposal of the ejectment case. However, the learned Rent Controller, on the basis of the statement of the petitioner's counsel engaged to act and plead in the civil suit, who was different from the counsel engaged by the petitioner to defend him in the ejectment case, made in the course of the trial of the civil suit, utilized the evidence on the file of the civil suit to decide the ejectment petition. The decision of the learned Rent Controller directing the petitioner's‑eviction was upheld in appeal by the learned Additional District Judge.

2. Unless the petitioner or his counsel in the ejectment case had given consent for reading of the evidence brought on the record of the civil suit in the ejectment case that evidence could not have been accepted as evidence in the ejectment case and the learned Rent Controller could not have based his decision thereon. The petitioner's counsel in the civil suit was not qualified to authorize the use of the evidence adduced in the civil suit in the ejectment case. In this view of the matter the learned Rent Controller's judgment would be taken to have been formulated on no legitimate evidence and, therefore, it as also the judgment of the learned Additional District Judge based thereon, cannot stand the test of scrutiny by this Court. The petition is accordingly accepted, the impugned judg ments of the learned Rent Controller and the learned Additional District Judge are declared to be without lawful authority and of no legal effect. The case is remanded to the learned Rent Controller, Gujranwala, respon dent 1, for fresh decision after receiving parties' evidence according to law. The learned Rent Controller will do well to give this case priority over other cases and dispose it of within two months. The parties have been directed to appear before him on the 30th January, 1982.

K. M. A. Case remanded.