' This writ petition has been brought against a judgment dated 6-1-1981 of the learned Additional District Judge, Lahore whereby an appeal filed by the petitioner against an order dated 10-11-1979 of the learned Rent Controller, Lahore dismissing her petition for ejectment, was dismissed.
2. The facts leading to this constitutional petition briefly are that the petitioner who is a widow and mother of six children filed a petition on 22nd June, 1978 before the Rent Controller, Lahore seeking ejectment of respondent No, 1 from a godown on ground floor situated at Bull Road, Lahore. Which respondent No, 1 was occupying at a monthly rent of Rs-. 100 as alleged. The ejectment was sought on the .Ground of default for the months of April and May, 1978 as well as personal need. The application so filed was resisted by respondent No,
1. The learned Rent Controller framed the following issues :-
(1) Whether the respondent is defaulter in the payment of rent since April, 1978 ?
(2) Whether the premises in dispute are required in good faith by the petitioner for the use and occupation of her son ?
(3) Relief.
' After recording the evidence the learned Rent Controller vide his order dated 10-11-1979 decided both the issues against the petitioner and in consequence thereof dismissed the application for ejectment.
3. The petitioner being aggrieved took an appeal therefrom to the Court of District Judge, Lahore which came to be decided by the learned Additional District Judge who vide his judgment dated 6-1-1981 upheld the findings of the learned Rent Controller, Lahore and dismissed the appeal.
4. The learned counsel for the petitioner has in support of the present petition submitted that the learned Rent Controller had passed his order dated 15-2-1979 under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance requiring respondent No, 1 to deposit the rent at the rate of Rs, 100 per month. The respondent No, 1 did not comply with the order as to its term but instead deposited the rent at the rate of Rs, 50 per month. The petitioner moved an application for striking off the defence of respondent No, 1 on the ground of noncompliance of the abovesaid order. The respondent No, 1 moved an application on 26.5-1979 seeking permission to amend the written statement so as to read the rent as Rs, 50 per month instead of Rs, 100 per month as he had been admitted in the written statement which mention was a result of typographical mistake. Both these applications were disposed of together by the learned Rent Controller vide his order dated 17-6- 1979 by which the learned Rent Controller amended his order dated 15-2-1979 and maintained that the rate of rent was to be construed as Rs,
50. The learned Rent Controller had based his order on the considerations that the petitioner's own case was that first the rent was Rs, 50 per month which was later on increased to Rs, 100 per month. The Receiver who was appointed by the Civil Court had also been issuing receipts as to rent to respondent No, 1 in the amount of Rs, 50 per month. The respondent No, 1 had produced a receipt having been issued by the petitioner for the month of March, 1978 in the amount of Rs, 50 as rent. The petitioner had been asked by the learned Rent Controller to give the date when the rent was increased but according to the observation of the learned Rent Controller she had failed to point out any date.
5. The learned counsel for the petitioner has contended that the learned Rent Controller was not competent to review his order initially passed under section 13 (6) of the Rent Restriction Ordinance as a case for review had not been made out and as that had amounted to condoning the default, as such the order dated 17-6-1979 was without lawful authority. He has further argued that it was not open to the learned Rent Controller to amend the order retrospectively and no ground existed for doing so because respondent No, 1 had clearly admitted in the written statement that the rate of rent, was Rs, 100 per month and the receipt issued in March: 1978 relied upon by respondent No, 1 was not admitted by the petitioner. Respondent No, l's defence was liable to be struck off due to the non-compliance of the original order passed under section 13 (6) of the Ordinance. The learned Additional District Judge according to him had not resolved this point satisfactorily. The learned.
Counsel for the petitioner has next taken an exception to the observation of the learned Rent Controller, in finding as to issue No,
2. The observation of the learned Rent Controller in this behalf is "But the potitioner has already been granted one shop vide my order of even date which is reasonably a large shop. Only one son is major and the other a minor will only help him. Requiring of a second shop will not be reasonable at the present. At some future time the other sons may require the second shop for them in good faith. This Tribunal 'is to help the needy which has been done by accepting one petition for one shop. By allowing this petition for the second shop, I feel that not the need but the greed of the petitioner will be accomplished. This 1 should not allow. The issue, on the basis of the same facts and evidence on record, is however decided against the petitioner in this case."
' The learned counsel for the petitioner has contended that the learned Rent Controller at the time of . Writing the order considered this aspect and referred to the other case which he could not do' without making the other case as part of the case under consideration and without affording any opportunity to the petitioner to explain as to the sufficiency of other premises to cater the need.
6. The learned counsel for respondent No, 1 has raised his preliminary objection as to the competence of the writ petition in the matter arising under the Rent Restriction Ordinance and for that he has relied upon Abdul Rehman Bajwa v. Sultan and 9 others (1), Muhammad Sharif and another. v. Muhammad Afzal Sohail etc. (2), Zahurul Hassan v. Mst. Ruqqia Begum and 4 others (3) and Doctor Muhammad Rafiq v. District Judge, Lahore and others (4) In Abdul Rehman Bajwa v.
Sultan and 9 others it has been laid down that a Court or Tribunal set up under ordinary law having jurisdiction to decide a particular matter has jurisdiction to decide it rightly or wrongly and a mere fact of decision being incorrect or such as to which High Court would not have arrived does not render decision without jurisdiction. It has been further held that in'writ jurisdiction the High Court while interfering with orders or judgments of final Tribunals or Courts has only to see whether the Tribunal or Court acted without jurisdiction or in violation of relevant Statutes or law as laid down by superior Courts. The High Court cannot embark upon a re-appraisal of evidence and proceed as if it were hearing an appeal from subordinate Court.
' In Muhammad Sharif and another v. Muhammad Afzal Sohail, etc. The Supreme Court while refusing Leave to Appeal made observation as to the scope of a writ petition in a rent restriction' case after the right for second' appeal has been taken away by the Legislature : "Notwithstanding the fact that the Legislature, in its Wisdom, has abolished the second appeal in cases under the West Pakistan
(1) PLD 1981 SC 522 (2) PLD 1981 SC 246
(3) PLD 1981 SC 56 (4) NLR 1980 Civil Lah. 834 ' Urban Rent Restriction Ordinance, 1959 and has made the orders of the District Judge as final yet the parties, probably after obtaining legal advice, have taken to filing writ petition in the High Court against the final order passed by the appellate Court, merely to take another chance or to delay their eviction, hoping that the matter shall take considerable time to be disposed of or that in any case the High Court while dismissing their writ petition may be persuaded to allow further time for vacating the premises-inquestion. The writ petitions are argued before the High Court as if they are Regular Second Appeals and it is noticed that the High Court takes great pains to re-appraise the evidence and to consider each and every contention raised by the petitioner's side before deciding the petition without realising that, mere often than not, such petitions are merely a device to circumvent the amendment in the law and defeat the obvious intention of the Legislature, namely, a speedy determination of cases under the Urban Rent Restriction Ordinance. Such frivolous application not only cause the poor litigants to incur unnecessary expenditure but also result in the waste of valuable public time and should, therefore, be discouraged by the High Court. It has been repeatedly held that a tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and the m ere fact that another conclusion could be arrived at from the evidence does not make if a case for interference in the exercise of its constitutional jurisdiction."
' In our view the jurisdiction of the High Court to interfere in matters of the kind involved in the present case is a very limited one and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the law relating thereto as laid down by the superior Court."
' In Zahurut Hasan v. Mst. Ruqqia Begum and 4 others the Supreme Court observed while deciding that whether revision to the High Court under Punjab Urban Rent Restriction Ordinance from an order of appellate authority was competent, an order of Rent Controller subject to the result of appeal if any was final and not questionable in any Court of law including that of High Court by either suit, appeal or otherwise. And the revision neither lay under unamended Ordinance nor lies under such Ordinance as amended.
' In Doctor Muhammad Rafiq v. District Judge, Lahore and others it has been held that an order of the Rent Controller subject to result of an appeal under subsection (7) of section IS of the Ordinance is final and is not open to interference in writ jurisdiction-Invocation or writ jurisdiction against order of District Judge is tantamount to seeking through writ petition what petitioner would have got through filing a second appeal under subsection (7). Right of second appeal to High Court having been taken and the jurisdiction of High Court abolished, same purpose cannot be achieved through invoking or by exercising Constitutional jurisdiction. Further It has been held that a constitutional petition is not maintainable for -the purpose of re-determining controversy between parties on facts which have finally been adjudicated upon by a Court of competent and exclusive jurisdiction. A finding of fact that respondent/landlord needed premises for his own use and for use of his male children even if it is based on slim evidence is not open to scrutiny in exercise of Constitutional jurisdiction.
7. The learned counsel for the respondent has in reply to the contentions of the learned counsel for the petitioner argued that the learned Rent Controller did not review his order but simply recalled his order having been made under section 13 (6) of the Ordinance, recalling of which was justified in view of the application made by the respondent because admission as to Rs, 100 by respondent No, 1 in his written statement was a result of typographical mistake and added strength to his submission by pointing out that in his written statement he had stated that originally rent was Rs, 100 per month and since originally the rent was Rs, 50 per month, therefore, what be meant was that rent was Rs, 50 per month and not Rs, 100 per month. As to the contention appearing to personal need the learned counsel for respondent No, 1 has submitted that this being a finding of fact cannot be unfolded within the scope of a writ petition.
8. I have gone through the judgment and orders of the learned Additional District Judge and the learned Rent Controller and weighed the arguments advanced on both the sides. As to the scope of petition under Article 199 of the Constitution in such cases as is laid down in the above referred decisions is very limited one. Now keeping myself within the ambit I find that the learned Additional District Judge has not disposed of the appeal with lawfulness since the legal questions arising on the face of the record remain unresolved despite the determination of the appeal. Therefore, the petition is accepted without costs and the judgment dated 6-1-1981 passed by the learned Additional District Judge is set aside and the case is remanded to him to decide the appeal afresh with reference to the following questions.
(1) Whether the order dated 15-2-1979 passed under section 13 (6) of the Rent Restriction Ordinance as it stood till its recall and amendment by the learned Rent Controller was meant to be complied with or not and if it was not complied with what was its effect ?
(2) Could the order dated 15-2-1979 be recalled with retrospective effect ?
(3) When the difference had arisen as to the actual rent during the proceedings, was that not the duty of the Rent Controller to have framed the issue and decided ?
(4) Was it open to the learned Rent Controller to consider the effect of another case while writing the order without making it a part of the case in hand and affording an opportunity to the petitioner to satisfy that she still needed the premises in question after having obtained ejectment order in respect with the other premises ? .