The petitioner instituted an application in the Court of the Controller, Sheikhupura on 20-3-1979 for the ejectment of respondent No. 1 on the ground of personal need. This application was contested by the respondent Muhammad Iqbal and the following issues were framed on the basis of the pleadings of the parties :- "(1) Whether the disputed premises are bona fide required by the petitioner for his personal use ?
(2) Whether the petitioner owns any other shop within the Municipal limits of Sheikbupura, if so, its effect ?
(5) Relief.
No other issue was claimed by the parties, as recorded by the Controller vide his order of the same date, Annex. C .
2. The Controller after recording the evidence and hearing the parties decided Issue No. 1 in favour of the petitioner. Under Issue No. 2 it was found that the petitioner though owned some other shops within the Municipal limits of Sheikhupura, yet it did not affect the proceedings in the ejectment application. Respondent No. 1 as such was ordered to be ejected by delivering vacant possession of the shop within a month.
3. This order was challenged in appeal before the learned District Judge, Sheikhupura, who by his order dated 7-6-1980 accepted the appeal and remanded the case to the Controller after having re-cast issues, which are as follows :- "(1) Whether the shop in dispute is required in good faith by the petitioner for his own use or for the use of his son ? O. P. B.
(2) Whether the petitioner or his son has been in occupation in the same Urban Area in which the shop in dispute is situate for the purpose of his business any other such shop suitable for their needs at this time ? O. P. R.
(3) Whether according to the terms of the rent agreement dated 18-11-1976 eviction of the respondent could be sought on the ground of default in payment of rent only. If so, with what effect ? O. P. R.
(4) Relief."
4. The fact that the issues had not been properly framed by the learned Controller was not urged in the memorandum of appeal. It was only during the arguments that this aspect of the case was argued. It was submitted before the District Judge with reference to the averments made in the written statement that respondent No. 1 was liable to be ejected only on account of his default in the payment of rent and not otherwise, in terms of the rent note dated 18-1-1976, Copy Annexure `G'.
It was submitted that since the petitioner had sought the ejectment of the respondent for his personal use as well as for the use of his son, A.I Hadi Zaidi, therefore, issue involving this plea should have been framed, whereas Issue No. 1 had been framed only with regard to personal use of the petitioner. It was also urged that no issue had been framed by the Controller with regard to the averments specifically made in the written statement that the petitioner had earlier sought eviction of another tenant from a shop in the same area but later on had compromised with him when he raised the rate of rent from Rs. 110 to 175 p.m. It was further pleaded that an issue-whether the petitioner or his son was in occupation of another shop suitable for his needs in the same area, should have been framed. The learned District Judge after hearing the parties recaste the issues as indicated above.
5. The learned counsel for the petitioner has raised the following contentions :-- "(1) The learned District Judge has acted illegally, without jurisdiction and lawful authority in recasting the issues, which otherwise do not arise out of the pleadings of the parties, as the issues can only be framed on the basis of the material available on record and not otherwise.
(2) The rent note, Annexure `G' does not contemplate that only in case of default in payment of rent respondent No. 1 would be liable to be ejected. There is no condition to that effect in the rent note.
Therefore, issue on that point being not arising, at all, the learned District Judge has acted without lawful authority in framing the issue on the point.
(3) Issue No. 2 as recaste also does not arise in view of the statement made by respondent No. 1 before the Controller that the petitioner as well as his son, both were not in occupation of any shop, whatsoever.
(4) Issue No. 1 as recaste does not arise in view of the material available on record. It was pleaded in paragraph 3 of the ejectment application of the petitioner that the petitioner as well .As his son, who was also unemployed, both wanted to do business in the shop. Evidence was also produced to the same effect and as such it was for the Controller to decide whether the shop was required in good faith by both of them, or not."
It has been argued by the learned counsel for respondent No. 1 while relying upon Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139), Anwar Hussain Talukdar and another v. Province of East Pakistan and others (PLD 1961 Dacca 155), Dr. Mahboob Rabbani v.
Government of West Pakistan (PLD 1961 Lah. 53), Ramzan v. Rehabilitation Commissioner (Legal) and another (PLD 1963 Lah.461), N. S. Venkatagiriayyangar and another v. The Hindu Religious Endowments Board, Madras () PLD 1949 P C 26), Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others (PLD 1973 Lah.495), that the expression of words as made in Article 199 of the Constitution "without lawful authority and of no legal effect" are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decision whether on a question of fact or even of law. Where a Court or Tribunal has jurisdiction to decide a matter and it determines the same, it cannot be said that it has acted illegally or with material irregularity merely because it has come to an erroneous decision on a question of fact or of law. It has been argued that the High Court cannot, in proceedings under Article 199 of the Constitution, interfere with the decision of the District Judge' merely because in its opinion the decision is wrong or erroneous. The case otherwise having not been finally decided and only remanded to the Controller, extraordinary jurisdiction of this Court cannot be invoked as held in PLD 1963 Lahore.
6. The question which arises for consideration is as to whether the order in question is wrong and merely erroneous on a question of fact or even of law; or otherwise is without jurisdiction and lawful authority being against the facts available on record. According to law, as laid down in Ghulam Mohyud Din and another v. Ch. Rehmat Alt Nagra (PLD 1965 SC 459), though the Controller has been given power of summoning and enforcing the attendance of witnesses and compelling production of evidence, he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10(3) and 12 of the .West Pakistan Urban Rent Restriction Ordinance to make orders. After holding such inquiry as he thinks fit. In such cases the question for nature of inquiry has been left to him. It has been held that in such inquiries the parties have no right to insist upon production of such evidence which they desire to produce in support of their case . These' inquiries may be such as are conducted by an Executive Officer. It has been further held that according to subsection (3) of section 13 of the Ordinance, the Controller is required to be satisfied about the claim of a landlord being bona fide before passing an order putting the landlord in possession of the tenented premises. It has been held that there is no express mention of any inquiry by the Controller under this provision. If the words "satisfied" imports necessity of inquiry, even then it cannot be said that in holding such inquiry he will be bound by any particular procedure. It has been held that in view of the examination of the relevant provisions of the Ordinance though some of the functions of the .Controller are judicial in character, yet he is not required to act judicially in discharging many of his functions. At the most, it can be said that he acts in a quasi judicial capacity. As such, according to law, while holding an inquiry under any of the provisions of the Ordinance, the Controller is not obliged to frame issues arising out of the pleadings of the parties. He is required to be satisfied with regard to the bona fides or otherwise of the landlord's claim while deciding his application for ejectment of his tenant. The C. P. C. Being not applicable, at all, he is to decide the case on the basis of the material brought on record by the parties. There is, however, no doubt that while deciding such cases principles of natural justice cannot be violated.
7. In the present case, it was specifically 'submitted by the petitioner in paragraph 3 of his application that since he had retired from service and son, A.I Hadi Zaidi, was without any employment, therefore, the shop in question was required by both of them in good faith to run business. In support of this claim, as made in paragraph 3 of his application, the petitioner produced evidence. Even the son of the petitioner, A.I Hadi Zaidi, was examined as A. W., who supported the contents of the ejectment application. According to the petitioner as well as his son they both wanted to run business jointly in the shop in question. The fact that the petitioner and his son both were unemployed and were not in occupation of any . Shop in the city was admitted by respondent No. 1 in the cross-- examination while appearing as his own witness. It means that the relevant material with regard to bona fide or otherwise nature of the claim of the petitioner was available on record in the form of evidence produced by the parties. If the learned Controller has omitted to mention the name of the petitioner's son in Issue No. 1, it cannot be said that it can adversely affect the merits of the case. The framing of the issues being not at all necessary and the Controller being obliged only to hold inquiry in such cases for his satisfaction it would not matter if any issue has not been happily worded. The fact that the shop in question was required by the petitioner as well as his son for running business had been brought on record and was fully known to the contesting respondent, who led evidence in rebuttal thereof. As such, there was no occasion for the learned District Judge to recaste Issue No. 1 so as to include the name of the petitioner's son.
The order passed in this behalf by the learned District Judge is not only erroneous or wrong, but against the facts available on record; rather it is not supported by the facts brought on the file. The facts brought on record by evidence fully show that the shop was required by the petitioner as well as his son. It will be another matter whether their need is bona fide or not. In the presence of such facts being available on record and the framing of issues not being necessary, at all, under the law, the order passed by the learned District Judge in recasting Issue No. 1 cannot be held to be wrong or erroneous, but it is without jurisdiction and lawful authority.
8. If the facts available on record are wrongly interpreted or used, then the order may be wrong or erroneous. But if an order is contrary to the facts or otherwise not supported by the facts, then the order will be without jurisdiction. Court gets authority or jurisdiction to pass an order on merits on the basis of material. Available on record and not otherwise. If that material is not available, as in the instant case, then assumption of jurisdiction with regard to such alleged material being without lawful authority the order passed will be liable to be set aside.
9. The same position obtains with regard to Issue No. 2. It has been admitted by respondent No. 1 in his own statement that neither the petitioner nor his son has been in occupation of any shop in the city. As such, there was no need, at all, to recast Issue No. 2 in the presence of the clear admission on the part of the contesting respondent. Similar is the position with regard to Issue No. 3. Copy of the rent note has been appended with the petition. There is no stipulation therein that only in case of default in the payment of rent ejectment application would be maintainable. In addition to other conditions, it has been stated in the rent note that in case of default in the payment of rent the landlord would be entitled to recover the same through Court and in that event he would be liable to be ejected. It is nowhere mentioned that only on account of default in the payment of rent respondent No. 1 would be liable to be ejected. Mere allegation on the part of the respondent in his written statement, that he would be liable to be ejected only on account of non-payment of rent would be of no avail to him when the conditions of the rent note do not support him. 1t is not denied that the original rent note has been produced on the file. When an allegation made in the written statement is not supported by the original record, no issue under the law can be framed with regard to the same. It is the duty of the Court to see whether the pleas taken in the written statement are otherwise correct and genuine and if they are not supported by the material produced by the party concerned, then no issue can be framed in relation thereto.
10. As mentioned above, it was found in PLD 1974 SC 139 that since in that case there was no jurisdictional defect in the impugned order as disting--uished from a mere erroneous decision whether on a question of fact or even of law, therefore, the order of the High Court interfering with the order of the Board of Revenue could not be sustained in law. The facts of that case are that a Scheme for consolidation was initiated in the village under the Punjab (Consolidation of Holdings)
Act, 1936. It was approved by the Consolidation Officer on 30-5-1957 with the consent of all land owners. However, some of them filed time barred appeals before the Collector, Jhang, who accepted the same and declared the entire Scheme null and void on the ground that the consolidation proceedings also affected evacuee land situated in the village which could not have been made subject of consolidation proceedings without prior sanction of the Custodian. This order was challenged in second appeal before the Commis--sioner, who accepted the same on 16-5-1960 and remanded the case to the Collector for decision on the question of limitation and also to move, if necessary, for the sanction of the Custodian. A revision petition was filed against this order before the Board of Revenue, which appointed a Deputy Secretary to look into the grievances of the parties concerned and submit a report in detail suggesting some amendment in the Scheme as already approved. The Member, Board of Revenue, who was seized of the matter, after causing notice to the village people and hearing the parties made amendments in number of Khatas. According to the modified Scheme, the respondents before the Supreme Court were given certain area of banjar land in lieu of cultivable land given to them under the Scheme as approved originally. They filed a review application against that, which was dismissed on 27-3-1969. They challenged the aforesaid order in writ jurisdiction in 1963. The writ was accepted by the High Court on 11-4-1972 mainly on the ground that if the impugned order was allowed to remain in the field the people settled in 1957 would again be upset after a long period of 15 years, which was. Against equity. It was argued before the Supreme Court that since the Member, Board of Revenue bad jurisdiction to deal with the matter and the order passed by him was based upon the material available on record, therefore, even if it be wrong or erroneous no interference could be made in exercise of extraordinary jurisdiction of the High Court. It was held that it was wholly wrong to consider that the constitutional provision of Article 98 of the 1962 Constitution was designed to empower the High Court to interfere with the decision of a Tribunal or of inferior jurisdiction merely because in its opinion the decision was wrong as in that case it would make the High Court's jurisdiction undistinguishable from that exercisable in a fulfledged appeal, which was not the intention of the Constitution makers.
11. In the present case, principle of equity is not involved. There being no material, whatsoever, available on record, the order recasting the issues cannot be sustained. In view of the clear admissions of the parties in their pleadings as well as their evidence produced on record the issues in question do not arise. Since the Court is invested with jurisdiction and lawful authority to frame issues or otherwise to decide a matter only on the basis of. The material available on record, therefore, there being no material in the instant case, the assumption of jurisdiction with regard to material not available on record was without lawful authority.
12. It has been held in PLD 1.961 Dacca, that interference can be made in writ jurisdiction not only when an inferior body or tribunal acting in a judicial or a quasi judicial capacity has exercised a jurisdiction which it does not possess or otherwise acts in flagrant disregard of the principles of natural justice, but also to correct such errors of law as may be said to be errors apparent on the face of record. The error of law which can be considered to be apparent on the face of record is not an error which can be pointed out to the superior Court after a long and elaborate argument. A Court of jurisdiction may decide wrongly in law and yet the superior Court may not interfere with its decision. But the error of law contemplated is an error so patent, so manifest that the superior Court will not permit the subordinate Court to come to a decision in the face of a clear ignorance or disregard of a provision of law. If a section of statute is clearly misconstrued or if the provision of law is overlooked and not complied with and that appears from the judgment of the lower Court itself, then the superior Court may interfere through writ jurisdiction. However, according to PLD 1974 SC as referred to above, a mere erroneous decision whether on a question of fact or even of law may not attract interference under Article 199 of the Constitution.
13. It was argued by the learned counsel for the respondent while referring to PLD 1961 Dacca, that since error in question, even of law, was not manifest on the face of record, therefore, no interference can be made. I am afraid, this contention has no force in the given circumstances. As discussed above, the question which arises for considera--petition in the instant case is whether there is material on record justifying the order recasting the issue. If there is none, as discussed above, then the impugned order cannot be justified being without jurisdiction and lawful authority.
14. It has been argued by relying upon PLD 1963 Lab. And 1973 Lah. As referred to above, that since proceedings. In the case have not yet been finalized, the case having been remanded to the Controller for fresh decision in the light of the issues recast, therefore, the writ petition is not maintainable.
This contention has no force in the given circumstances, as- the facts of both the cases relied upon are different from the present one. In PLD 1963 Lah. The case was remanded to consider the objections with regard to admissibility of documents. It was held that any such objection could be heard and decided during the proceedings in remand and it was not desirable that the High Court should prevent a Department with its own rules and laws and its own hierarchy of officers -from having a second look at the case if it so chosen until it was prohibited - from doing so. The contention raised -before the High Court that since .The. Authority that remanded the case took into .Account the document which was inadmissible in evidence the said authority acted without lawful authority. This contention was repelled on the ground that. Jurisdiction vested in that authority to decide the matter wrongly as well as erroneously.
It means that in that case a , document which was very much in existence on record was considered to be admissible which according to the petitioner before the High Court; was in admissible under the law. At the most such decision can be said to be erroneous in law, which may not be open to exception under Article 199 of the Constitution as held in PLD 1974 SC. Such-is not the position in the present case. Here the material on the basis of which issues can be framed does not exist on record and as such question of using the same wrongly or otherwise does not arise.
The principle laid down in PLD 1963 Lab. Is to be appreciated in context of the circumstances of each case and not otherwise. Since the circumstances of the present case . Are -quite different, therefore, the said principle is not applicable to the present case.
Similar position obtains with regard to PLD 1973 Lah. In that case, the case was remanded to A. C. 11 for fresh decision after hearing both the contesting parties for the reason that when A. C. II had sanctioned the Mutation of inheritance on 17th of October 1971, he had not heard respondents 3 to 6 in the case. The aforesaid order was challenged before the Collector in appeal, which was dismissed. However, the party concerned succeeded in revision before the Additional Commissioner (Revenue), Lahore on 12th August 1971 whereby the case was remanded as mentioned above. This order was assailed up to the level of the High Court in writ jurisdiction but without any success. In view of the peculiar circumstances obtaining in that case it was held that since the matter was yet to be finally decided, therefore, it would not be ,appropriate to interfere with an order of remand. The question with regard to lack of jurisdiction and lawful authority on account of non-availability of-the relevant material on record was not involved in that case. As such, the contesting respondent cannot avail of this reported case.
15. It is true, as held in PLD 1973 SC and PLD 1974 SC that if no appeal is provided by the Legislature, the determination of a tribunal of exclusive jurisdiction will be final. The scope of interference by the High Court in exercise of its extraordinary jurisdiction would be limited in order to find out whether the Tribunal has acted in doing that act or undertaking the proceedings not in accordance with law. If the answer is in the affirmative, the High Court will stay its hand and will not substitute its own finding with the finding recorded by the tribunal. However, cases of no evidence, bad faith, misdirection or failure to follow judicial procedure etc. Are treated as acts done without lawful authority and vitiate the act done or proceedings taken by the tribunal on this ground.
Where the High Court is of the opinion that there is no evidence proper to be considered by the inferior tribunal in support of some decision the same will be interfered with.
16. In PLD 1973 SC the appellant was elected as member of National Assembly. His election was challenged on the ground that he entered into a contract with the Provincial Government for supply of goods and as such he was not eligible to contest election. It was averred that 'the contract had been entered into by his son. The Election Commis--sioner while hearing the case confined inquiry to mere perusal of the pleadings of the parties and the copies of documents accompanying the plaint and the written statement. Neither the parties were examined nor the points on which they were at issue were settled. No opportunity was given to any of the parties to adduce evidence in support of its respective claim. Nevertheless the Election Commissioner set aside the election and declared the seat to be vacant. This order was challenged before the High Court in writ jurisdiction and was urged that in the absence of any procedure laid down in the relevant law it was incumbent on the Chief Election Commissioner to follow the procedure laid down in the C. P. C. Or at least to follow a judicial procedure which could enable .The parties to know on what points they were at issue and to lead evidence in support of their respective claims.
It was held that since the Chief Election Commissioner proceeded with the case without settling the points in issue and without granting an opportunity to the parties to adduce evidence, as the question involved could not be settled by mere perusal of the pleadings and the documents placed on record, therefore, his order stood vitiated being without lawful authority. In that case, the order of the Chief Election Commissioner was set aside in exercise of extraordinary jurisdiction being against the principle of natural justice in having not granted proper opportunity to the parties concerned to prove their respective contentions, while in the present case the aforesaid issues have been recast on the basis of evidence or material, which is not available on record. It amounts to abuse of process of the Court.
17. It has been argued that since the petitioner has adequate remedy in pursuing the matter before the Controller in compliance with the remand order and can prove his claim by referring to the relevant material available on record, therefore, he cannot invoke the extraordinary jurisdiction of this Court.
This contention has no force in the given circumstances. As held by a Full Bench of this Court in Mahboob All Malik v. Province of West Pakistan and another (PLD 1963 Lab. 575). And in Salahud Din and 2 others v. Frontier Sugar Mills Ltd. And others (PLD 1975 SC 244), adequacy of alternative remedy is to be judged in relation to the requisite relief. If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief the alternative remedy is not "other adequate remedy". If the relief available through the alternative remedy in its nature and extent I is what is necessary to give the requisite relief, the adequacy of the alternative remedy must further be judged with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy with the speed, expense or convenience of obtaining it through writ jurisdiction.
It may be mentioned that the view taken in PLD 1963 Lab. Was generally approved by the Supreme Court in Anjum:an-e-Ahmadia v. Deputy Commissioner, Sargodha (PLD 1966 SC 639). It was held that when the relief sought for was by its nature one which lends itself to be effectively remedied by orders of the nature contemplated by the provision with regard to extraordinary jurisdiction of this Court, then the intention of the Constitution appeared to be that the remedy granted by the Constitution should be made available to the citizens unless the Court was satisfied that other adequate remedy was provided by law. It was held that the other adequate remedies provided by law could in the ordinary circumstances have reference to the remedies provided by the particular statute itself which bad created the right or obligation and not a general remedy at law, as for example by a suit. In the case reported in PLD 1975 SC the writ petition filed by the appellants had been dismissed by the High Court in limine on the ground that the appellants had already filed a civil suit with regard to the same subject-matter and since they had availed of the alternative remedy, therefore the writ petition was not maintainable. This finding of the High Court - was set aside by the Supreme Court on the ground that even if the relief available through alternative remedy was available the adequacy of the same must further be judged with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy with the speed, expense or convenience of obtaining it under the extraordinary jurisdiction of the superior Courts. The Supreme Court in that case allowed the appeal against the judgment of the High Court and granted the relief prayed for by the appellants.
18. In the present case, as held above, the impugned order being without jurisdiction and lawful authority; not supported by any material brought on record by the parties, will put the petitioner to unnecessary expense and inconvenience if it is otherwise allowed to be sustained. After the recasting of the issues, which itself is not warranted by law as discussed above, the parties will have to lead evidence in relation thereto again and it will take a long time to finalize the proceedings by the Controller. Thereafter the aggrieved party will again invoke the appellate jurisdiction of the District Judge, concerned. It is thus clear that in spite of the alternative remedy being available to the petitioner by pursuing the proceedings before the Controller after remand he will unnecessarily suffer delay, expense and inconvenience by pursuing the aforesaid remedy. In this view of the matter the writ petition cannot be dismissed on the ground of the alternative remedy being available to the petitioner.
It is significant to notice that after the amendment in section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, taking away the right of second appeal by the High Court, number of such illegal and without jurisdiction orders passed by the Controllers and appellate authorities has increased, probably under the impression that such orders are no more subject to scrutiny by the High Court.
18. As consequence of the above discussion, the impugned order passed by the learned District Judge, dated 7-6-1980, recasting the issues an remanding the case for trial by the Controller is hereby set aside being without jurisdiction and lawful authority. The result would be that the appeal filed by the respondent No. 1 against the petitioner would be considered to be still pending adjudication. The case is, therefore, remanded to the learned District Judge, Sheikhupura for decision in accordance with law after hearing the parties.
Writ petition stands accepted without any order as to costs in the terms stated above.