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In re: Civil Petition for Special Leave to Appeal No. 78 of 1984, decided on 20th November, 1985.
‑‑‑Art. 185(3)‑‑Leave to appeal‑‑Grant of and its conversion into appeal‑‑Observations made by High Court while dismissing petitioners' writ petition bound to prejudice their suit, if they wished to file same in order to establish their title to property‑‑Respondents consenting to having said observation quashed‑‑Petition for leave to appeal converted into appeal and allowed to extent of quashing impugned observations.
Ch. Hamidud Din, Senior Advocate Supreme Court with Bjaz Ahmad Khan, Advocate‑on‑Record for Petitioners.
S. Inayat Hussain, Advocate‑on‑Record for Respondent No. 1.
Nemo for Respondents Nos. 2 and 3.
Date of hearing: 20th November, 1985.
‑This is a petition for leave to appeal from the judgment of Lahore High Court,, dated 12‑11‑1983 dismissing a Constitutional petition filed by petitioners by which they sought to challenge the judgment of the Additional District Judge allowing an appeal filed by respondent‑landlord. By that judgment, learned Additional District Judge held that petitioners "had failed to prove that the relationship of landlord and tenant exists between the parties in respect of the property in question" and on this view of the case, he set aside the order of eviction passed by the Rent Controller against respondent. Learned Additional District Judge however allowed "the parties to get their title in respect of the property in question finally determined from the Settlement Authorities."
Learned Judge of the High Court, on the other hand, while dismissing the Constitutional petition filed by petitioners made the following observations regarding the request of petitioners' counsel that "if the (Constitutional) petition were not to succeed, it may be observed that petitioners may have recourse to civil Court "
"(It) is a matter for the petitioners to decide as to what to do Observation is not called for, for the reason that it is little doubtful as to whether the civil Court will have jurisdiction in the matter in view of the nature of the property being evacuee. No more need be said and whatever is said is confined to these proceedings."
In support of this petition for leave to appeal from the judgment of High Court, grievance of the learned counsel for the petitioners is confined to the observation of the High Court regarding permission sought by petitioners to have recourse to civil Court for establishment of their title to the property. It is submitted that the observations made by the High Court are bound to prejudice the case of the petitioners in the civil suit if they wish to file in order to establish their title to the property.
There is force in this submission and the learned Advocate‑on‑Record for the respondent‑landlord has no objection if the relevant observations of the High Court are quashed. We, therefore, convert this petition into an appeal, allow the appeal to the extent that the observations of the High Court that "it is little doubtful as to whether the civil Court will have jurisdiction in the matter in view of the nature of the property being evacuee" are quashed. The appeal succeeds only to that extent and is accordingly allowed. The parties are however left to bear their own costs.
M. I. Appeal allowed.
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