' The petitioner took on rent property No, 41-0, Main Gulberg, Lahore, sometime in the year 1971. The landlord-respondent, No, 3 filed an application under the West Pakistan Urban Rent Restriction Ordinance, 1959, for the eviction of the petitioner. The application was dismissed by learned Rent Controller, vide his order but, on appeal, the learned District Judge accepted the application and allowed two months' time to the petitioner to vacate the premises. This is vide order dated 30th June, 1980. This order is sought to be declared without lawful authority and of no legal effect in exercise of Constitutional jurisdiction of this Court.
2. Learned counsel for the petitioner questioned the judgment of the learned District Judge, firstly, when it was observed that the provision of section 13 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, for restoration of possession to the tenant, was sufficient to show that the landlord was seeking eviction bona fide, learned counsel contended that bona fide requirement has to be independently proved. Secondly, that the property was taken on rent by the petitioner for residence and establishing a hospital therein which he did, Therefore, it is a "scheduled" building. On this premises also proceeds the order of the learned District Judge. This being so, the learned counsel contends, the learned District Judge fell in error in ordering eviction of the petitioner on the ground of personal use of the landlord for residence and use by his son for legal practice is only a use. Thirdly, that the learned counsel for the petitioner was not allowed to address oral arguments in full. He was asked to give arguments in writing which. He did but those were not considered in the impugned order.
3. Although the contentions are spacious but reference to section 13 (4) of the Ordinance was to meet an argument of the learned counsel for the petitioner, otherwise, the learned District Judge, after referring to voluminous evidence led by the parties, had recorded a finding that the landlord required the premises for bona fide use, he also believed the evidence that the landlord needed the property for the use of his son who wanted to shift to Lahore to practice law and the learned counsel for the petitioner has been heard at length to find out if the petitioner could be granted relief consistent with law. The gravamen of the case of the petitioner is really a re-hearing as if on second appeal. Section 100 of the Code of Civil Procedure lays down that an appeal to the High Court will lie from an order of a subordinate Court on the grounds, namely, "(a) the decision being contrary to law or usage having the force of law, (b) the decision having failed to determine some material issue of law or usage having the force of law, and (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits." Now, this kind of jurisdiction of the High Court to hear a second appeal has been taken away by the Punjab Urban Rent Restriction (Amendment) Ordinance (Punjab Ordinance No, IX of 1979) by substitution of section 15 (7) whereunder it is laid down that "The order of the Controller, subject to result of appeal, if any, shall be final and shall not be called in question in any Court of law, including the High Court, by suit, appeal or otherwise". The intention of the legislature is quite clear and obvious that an order passed on first appeal shall be final and shall not be subjected to further appeal in the High Court.
What the petitioner is now seeking through this Constitutional petition is what he would have got through filing a second appeal. That right of his having been taken away and jurisdiction of this Court abolished, the same purpose cannot be achieved through invoking or by exercising the Constitutional jurisdiction. The latter jurisdiction is not meant. To avoid or thwart legislative intent. It itrite law that what can be done in appellate jurisdiction cannot be done under the constitutional, jurisdiction. The two jurisdictions are separate and distinct. Their Lordships of the Supreme Court of Pakistan have held in Muhammad Hussain Munir, etc. v. Sikandar etc.at page 142 that "It is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercise able in a full-fleged appeal, which plainly is not the intention of the Constitution-markers." Consequently, this Constitutional petition is not maintainable for the purposes of re-determining the controversy between the parties on the facts which have finally been adjudicated upon by the Court of competent and exclusive jurisdiction. The learned District Judge has allowed the ejectment application on the basis of the evidence in which it was said by eminent doctors that the respondent who is an old gentleman of about 75 years needed medical attention and had been advised to shift to Lahore, a son of his wanted to shift to Lahore to practise law, another son had been brought to Menial Hospital for treatment previously, that the two grand- children of his needed coming over to Lahore for education and that the property in question was the only property of the respondent-landlord in Lahore. The learned District Judge has believed the evidence and recorded a finding that the respondent-landlord needed the premises for his own use and for use of his male children. Finding of fact based on evidence, even if slim is not susceptible to scrutiny in exercise of Constitutional jurisdiction. Consequently, it is not possible to interfere in the impugned order, Hence, Constitutional petition is without force and is, accordingly dismissed in limine.##TE# PLD 1974 SC 1391 1