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Civil Petition for Special Leave to Appeal No. 402 of 1980, decided on 9th April, 1980.

(On appeal from the judgment of the Lahore High Court, Lahore dated 12‑3‑1980 in S.A.O No. 336 of 1979).

‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30‑‑Ejectment application granted‑‑High, Court remanding case to Rent Controller for resolving controversy whether or not statutory notice was served upon tenant‑petitioner‑‑ Order challenged‑‑Certain documents being available on file to show that notices were served, and in order to ensure just and fair adjudication, Court had to give an opportunity to parties to lead evidence to their satisfaction‑‑Petitioner's case not prejudiced‑‑Framing of an issue having become necessary and discretion having been exercised in advancement of rendering complete and substantial justice eliminating technicalities, as it should be, particularly in Rent Controller proceedings, order of remand upheld‑‑Leave to appeal refused.

Zia Mahmud Mirza, Advocate with Rana Maqbool Ahmad Qadri for Petitioner.

‑The petitioner, a tenant, seeks leave to appeal against the judgment of the Lahore High Court in second appeal, whereby an issue with regard to the service of statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) and the statutory protection there under was framed and the Rent Controller was directed to decide the issue within a period of two months.

2. The contest had before the impugned judgment of the Lahore High Court taken place on two issues. The first was with regard to the existence of the relationship of landlord and tenant between the parties and the second was the bona fide need of the property by the landlady for her son. The decision on both issues was in favour of the landlady and ejectment order was passed on 23‑1‑1979 and the same was affirmed in appeal by the District Judge. In Second appeal the controversy centred round the finding on the first issue i.e. the existence of the relationship of landlord and tenant, the obligation of the transferee landlady to serve a notice under section 30 of the Act and the right of the petitioner to enjoy the tenancy for six years after the service of such a notice. It was agreed that the issue as framed was not really a point on which the parties were in issue for the dispute 'was with regard to service of notice under section 30 of the Act while the issue related to the existence of the relationship of landlord and tenant, the latter being not al all dependant on the former. The learned Judge in the High Court found that the real issue was whether the period of statutory protection under section 30 of the Act had expired and an issue was to that effect framed. Additionally finding that there were documents on the file of the case though not formally produced and admitted in evidence showing that notices by registered post were addressed to the petitioner, remand was considered to be more proper in the circumstances and it was ordered accordingly.

3. The learned counsel for the petitioner contends that notwithstanding the incorrect issue framed the parties were at no stage in doubt as to what they had to prove and establish. As a matter of fact according to the learned counsel for the petitioner, in the ejectment application itself the landlady had disclosed the date of the notice and the date on which the statutory period of six years expired. It is contended that by taking note of certain notices and documents found on the file and not admitted in evidence the learned Judge has come to a conclusion which amounts to giving an undue benefit to the landlady to supply the omission and the defects in her case to which she was on no consideration entitled. This, according to the learned counsel, has seriously prejudiced the petitioner in meeting the claim of the landlady.

4. The controversy whether a notice under section 30 of the Act had been served or not was one purely of fact. If the parties had not been misled by the omission of the Rent Controller to frame the correct issue and material evidence on the record has been available there would have been no need to remand the case to the Rent Controller. It was found as a fact that there were certain documents on record which had been filed by the respondent landlady at the appropriate stage of the proceedings and were directed to show that the statutory notice had been served. These documents were not formally tendered and admitted in evidence. With those documents being on the record and the issue on the real controversy being not framed it could be inferred that proper adjudication had not taken place. If an issue of fact had to be reconstituted and the parties were not content with the evidence already admitted on the record the Court in order to ensure just and fair adjudication had to give an opportunity to the parties to lead evidence to their satisfaction. Exactly that has been done. Besides, such a remand should not prejudice the petitioner in any respect at all for he as a tenant continues to be in possession of the shop and is not the loser till the issue is decided against him this plea is that no notice under section 30 of the Act was at all served and that the six years protection had not expired. He should not grudge an opportunity to the landlady, after such an issue had been framed of showing to the contrary. Not only the framing of the issue had become necessary a discretion hid been exercised and it was in fact exercised in advancement of rendering complete and substantial justice eliminating the technicalities, as it should be, particularly in Rent Control proceedings. We find no merit in the petition which is dismissed.

M. I. Petition dismissed.

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