This is a constitutional petition having been brought against the judgment dated 17-7-1980 of Mehar Muhammad Nawaz, Additional District Judge, Lahore, in a rent restriction case in which the petitioner -has taken an exception to the judgment so delivered on a number of grounds.
2. The facts of the case briefly are that the petitioner filed an application on 25-9-1972 under section 13 of the West Pakistan Rent Restriction Ordinance, 1959, seeking the ejectment of respondents Nos. 1 and 2, from a portion on the ground floor of Property No. 66, situated at Abkari Road, Girja Gali near Law College, Lahore, on the grounds of default from 1-9-1971 to 1-8-1972 and reconstruction of the premises. The application filed before the Rent Controller Lahore was resisted by respondents Nos. I and 2. According to the pleadings of the parties as to their variance the issues were framed as to the default, requirement in good faith for reconstruction, the actual rent of the disputed premises, entitlement as to a notice under section 30 of the Displaced Persons (Comp. & Reh.) Act, 1958 and a notice under section 13-A under the Rent Restriction Ordinance.
3. In support of the petition it was alleged by the petitioner that he was a transferee of the entire house vide P.T'. O. No. 11/1831/617483. Qasim Ali, husband of respondent No. I and father of respondent No. 2 continued as a tenant on a monthly rent of Rs. 15 in two rooms on the ground floor and a deed dated 3-5-1962 had also been executed to that effect by Qasim Ali in favour of Qutab Din. After the death of Qasim Ali, his wife respondent No. 1, stepping into the shoes of her husband, became tenant. The premises occupied by respondent ,No. 1 required repair-cum-reconstruction, an arrangement was entered into in September, 1971 under which she was to make a shift to another room leaving two rooms for repair-cum-reconstruc--tion. It is alleged that she agreed to pay Rs.200 per month for new occupation till she shifted back after repair-cum-reconstruction to the old premises, so the ejectment was sought from the newly-occupied room. Respondents Nos. 1 and 2 put in separate written statements denying the basic allegations of the petitioner making in their own turn after raising various objections to the competence of the ejectment petition.
Respondent No. 2 specifically denied the relation of landlord and tenant and maintained that a notice under section 30 of the Displaced Persons Act, 1958 had not been given, the protection of which she enjoyed and as notice under section 13-A of the Rent Restriction Ordinance had also not been given, therefore, she was not bound to make payment of rent. In view of the evidence adduced by the parties, the learned Rent Controller found that the rent of the new occupation was not Rs. 200 but the same rent i.e., Rs. 15, however, he gave his finding that the respondents were defaulters. As to the need of the premises for reconstruction he held the requirement as bona fide, decided the issue in respect thereof in favour of the petitioner and as to the notice under section 13-A of the Ordinance he observed that in August,. 1971 the disputed premises were given to the respondents after they had agreed, as such were not entitled to notice under section 13-A. The learned Rent Controller in consequence thereof passed an order for ejectment vide his order dated 30-4-1978.
4. On appeal the learned Additional District Judge, Lahore, after accepting the finding as to the rate of rent took a different view. He g re his finding that notice under section 30 of the Displaced Persons (Comp. & Reh.) Act, 1958, had not been given either by the actual transferee or by the petitioner who was his son. The learned Additional District Judge opined that respondents Nos. 1 and 2, were entitled to the protection of section 30 of the aforesaid Act and since the petitioner had succeeded his father notice under section 13-A of the Rent Restriction Ordinance was also necessary. So in the absence of notice, the respondents Nos. 1 and 2, could not be regarded as defaulters and further observed that the house required simple repair and not reconstruction.
5. Before the contentions of the learned counsel for the petitioner are dealt with, the objections as to the competence of this petition raised by the learned counsel for respondents Nos. 1 and 2, deserve some engagement. The learned counsel for the respondents has, in this regard, relied upon Zahoorul Hasan v. Mst. Ruqqaya Bagum and others (1), Muhammad Sharif and another v.
Muhammad Afzal Sohail etc. (2) and Muhammad Hussain Munir v. Sikandar and others (3).
6. In Zahoorul Hasan's case, their Lordships of the Supreme Court were pleased to hold that an order of the Rent Controller subject to the very result of appeal, if any, stood final after the recent amendment taking away the right of second appeal and as such was not questionable in any Court of law including that of High Court by either suit, appeal or otherwise and further it was held that the expression `otherwise' is wide enough so as to include remedy by way of a revision under section 115, C. P. C. In keeping with the case, however, the ratio was that revision under section 115, C.
P. C. Neither lay under unamended Ordinance VI of 1959 nor lies under the Ordinance as amended.
As to the import of the observations made by their Lordships of the Supreme Court while refusing leave to appeal in the case of Muhammad Sharif and others, it was emphasised :- "We have been noticing, of late, that notwithstanding the fact that the Legislature, in its wisdom, has abolished the second appeal in cases under the West Pakistan Urban Rent Restriction Ordinance and has made the orders of the District Judge as final, yet the parties, probably after obtaining legal advice, have taken to filing writ petitions 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-in-question. The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judges of the High Court take 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 more 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 applications not only cause the poor litigants to incur necessary 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 the matter is competent to decide it rightly or wrongly and the mere fact that another conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction.
(1) PLD 1981 SC 112 (2) PLD 1981 SC 246 (3)PLD 1974SC139
(6) 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 Courts."
In Muhammad Hussain Munir's case a very valuable guidance has been laid down by their Lordships which is being adhered to by this Court with all the respect. The most conspicuous principle which has been laid in this judgment is :- "These are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decisions whether on a question of fact or even of law. It is well-settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law."
7. It is true as is obvious from the principles laid down by the Supreme Court variously that the mere conclusion in law or fact will not furnish any ground for the interference of this Court in its Constitutional jurisdiction. However, an interference will fall as called for where any conclusion either in law or in fact shakes up the very foundation of the jurisdiction. The jurisdictional defects result in assumption of jurisdiction where it is not vested, failure to exercise where it is vested, where the exercise of jurisdiction is in breach of the clear law in such a way that what the law has required, has been completely ignored and the jurisdiction which has been exercised, has been exercised so on a suppository outside the domain of law or the jurisdiction has been exercised in breach of a mandatory part of procedure so as to deny the safeguards of regulating process. So far as adjudication 'upon a matter in any form is concerned, as opposed to personal notions simplicitor, it is to be conducted on certain basic norms within the framework provided by a legal system to which recourse is essential to be taken. If this is not satisfied, then the defect will impair the very validity of a decision so as to render the decision without lawful authority for the simple reason that the authority has been exercised but without lawfulness.
8. In my humble opinion as to the conclusion of law and the conclusion of fact whether are to be accepted, on the ground that a Court can come to an erroneous conclusion of law and fact without impairing the very jurisdiction in any form, the rule has been developed and laid down by their Lordships of the Supreme Court which in its turn is based, with respect, upon legal and rational considerations arising out of the cases whereby their Lordships were engaged, and being conscious of my duty I will endeavour to adhere to the principle laid down by the Supreme Court.
So far as I appreciate these rules or principles I take it that the Lordships have not narrowed down the interference by this Court under Article 199 of the Constitution where there have been conclusions of la and fact in which long jolts and jumps have been taken so as to move out of the law or facts as to a case, that it "gives not certainty to a Jurist that what is the actual provision of the law in force and what is correct perspective of facts. In evacuee, Rehabilitation and Settlement cases the constitutional jurisdiction as is obvious from the legal. Reports of our country, has been made available handsomely, on the parity of reasoning it can be made available iii deserving cases under the Rent Restriction Ordinance, but not so copiously as has been pointed out in the observations made by the Supreme Court in Muhammad Sharif's case.
9. Now coming to the present case, the learned counsel for the petitioner while contending for his case has raised the points that;-
(i) Notice under section 30 of the Displaced Persons (Comp. & Reh.) Act, 1958, was not a requirement in this case ;
(ii) Respondents Nos. 1 and 2 were, in the circumstances of the case, not entitled to notice under section 13-A of the Ordinance ;
(iii) The effect of repeal of the settlement laws has not received its weight ;
(iv) Issue of construction has not been decided in accordance with law.
10. The learned counsel for the petitioner while elaborating his sub- missions has maintained that with the shifting of respondents Nos. 1 and 2, on a condition' that after repair or reconstruction they were to shift back to the old rooms a new arrangement had come into existence in which respect provisions of section 30 of the Displaced Persons Act, 1958, as well as section 13-A of the Rent Restriction Ordinance were not attracted, respondents Nos. 1 and 2, being consenting specifically from the date of the arrangement. He has relied in this behalf and in support of the other points which have been summed up above on, Sadiq Ali v. M. D. Arif (1), Haji Wahid Bakhsh v. Rustam Ali (2), Muhammad Ashraf v. Muhammad Sharif (3), Ghulam Qadir v. Nazir Ahmad (4), Akhtar Sultana v. Dr. Abdur Rauf (5), Umar Din v. Fuzai Din (6), Rehmat Bibi v. Maryam Akhtar (7), Muhammad Ramzan v. Bashir Ahmad (8) and S. Muhammad Ilyas & Sons Ltd. v. Abu Ahmad Khan (9). The learned counsel for respondents Nos. 1 and 2, has supported the judgment of the learned Additional District Judge while maintaining that the findings as arrived at by the learned appellate Court arejustified on the record.
11.. I do refrain from discussing the impact of law as cited by the learned counsel for the petitioner in view of the nature of order I am going to pass, except that these decisions do have a supporting impact on the contentions raised. The judgment of the learned Additional District Judge as it stands, lacks the proper impact of the legal exposition on the basic issues. The interpretation of the law by the superior Courts and the principles set thereunder are meant to be observed and applied by the lower Courts. I find that the learned Additional District Judge has not felt the necessity of either asking the counsel .Before him -to support their contentions with law as laid down by the superior Courts or to look himself into the decisions of the superior Courts covering the contentions which were raised before him.
(1) PLD 1975 Lab. 284 (2) PLD 1975 Lah. 1302
(3) PLD 1971 Lah. 610 (4) PLD 1980 B J 15
(5) PLD 1978 Lah. 347 (6) PLD 1978 Lah. 193
(7) 1980 CLC 883(8) PLD 1981 SC 340
(9) 1981 CLC 1257.
The judgment so delivered is not rich as to the discussion of law, as such, cannot be regarded as with that lawful authority which the Constitution of this country contemplates. The necessity has been felt for remarking all this because these days in rent restriction cases the contestants have been left with only one right of appeal, therefore, in consequence thereof the judgment dated 17-7- 1980 of the appellate Court is set aside and. The case is remanded for a decision afresh in the light of all the relevant decisions delivered by the superior Courts governing the points which are directly of indirectly in issue in the present case. In the peculiar circumstances of the case the parties are left to bear their own costs.
12. I feel it as my duty to further express that the learned Additional District Judge after complying with the direction of this Court will be as independent as he is supposed to be to come to any