' Brief facts in so far as relevant for decision of the controversy giving rise to the present constitutional petition are that Mst. Ghulam Ghausia prayed for eviction of Muhammad Anwar, Abdul Wahid, Bashir Ahmad (predecessor-in-interest of Tahir Bashir and 9 others), and Nisar Ahmad on the grounds of :
(i) Default in payment of rent ;
(ii) Subletting the premises without prior permission of the landlady ;
(iii) Personal bona fide need and
(iv) Damage to the property.
' Eviction petition was opposed and was resisted by the tenants. It was stated in the written statement filed in Court that Bashir Ahmad, Abdul Wahid and Nisar Ahmad were in possession of the disputed premises as tenants and not sub-tenants as alleged in the eviction petition. This controversy was resolved on a special oath taken by Muhammad Anwar on Holy Quran who stated that these three persons were in occupation as tenants. Consequently on the basis of this special oath eviction petition was dismissed on 4th May, 1977 by Rent Controller. On 3rd January, 1979, Mst.
Ghulam Ghausia again instituted an eviction petition against Abdul Qadir and Tahir Bashir (son of Bashir Ahmad) on the ground of personal bona fide need for her sons, reconstruction of the premises, subletting and damage to the tenanted property. This ejectment application was seriously resisted. However, through an order, dated 23rd September, 1979 petition was accepted and ejectment order was passed against Abdul Wahid and Tahir Bashir. Correctness of eviction order was assailed in appeal before learned Additional District Judge, Sargodha, who vide order, dated 23rd December, 1980, accepted the appeal, remanded the case for decision afresh after impleading all the necessary parties, namely other heirs of Bashir Ahmad. In support to the remand order made by learned Additional District Judge in appeal, ejectment petition was amended and the other heirs of Ch. Bashir Ahmad since deceased, were impleaded as parties to the eviction petition. Dispute raised is reflected in the form of following issues :-
(1) Whether the application is liable to be dismissed in view of preliminary objection No, 1 ? 0. P. D.
(2) Whether the application is bad for non-joinder of necessary party?
O. P. D.
(3) Whether the applicant requires in good faith the disputed shop for his personal use ? 0. P. P.
(4) Whether the applicant requires the shop in good faith for reconstruction ? 0. P. P.
(5) Whether the respondents have sublet the shop and chaubara for Rs, 800 ? 0. P. P.
(1)
(2)
(3)
Whether the respondents have deteriorated the value and utility of the disputed property ? 0. P. P.
Whether the applicant is estopped by her conduct to bring this application ? 0. P. R. 3 to 10 Whether the site plan (Map) is incorrect ? If so, its effect ? O. P. R. 5 to 10.
' After recording evidence of the parties on the issues raised and hearing them learned Rent Controller answered Issues Nos. 4 to 6 against the landlady, issues Nos. 1, 2 and 7 against the tenants and Issue No, 3 in favour of the landlady and as a necessary consequence thereof, accepted the ejectment petition and ordered tenants' eviction from the premises in dispute vide his order, dated 19th July, 1983. This order was challenged in appeal which was disposed of by learned Additional District Judge, Sargodha who vide his Order, dated 21st November, 1983 endorsed the findings on issue No, 3 and holding appeal to be without merit, dismissed the same.
2. Eviction order, dated 19th July, 1983, subsequently affirmed in appeal has been assailed in constitutional jurisdiction to declare both the orders to be illegal and of no legal effect qua the rights of the petitioners.
' Petition was admitted to regular hearing on 18th March, 1984 to examine the contentions raised in the writ petition.
3. I have heard learned counsel for the parties and examined the record requisitioned from the Court of Rent Controller, Sargodha. Mr. S. M. Tayyab, learned counsel for petitioners has contended that the Courts below while deciding the fate of issue No, 3 could not have placed reliance upon the evidence recorded in pre-remand proceedings, when the heirs of Ch. Bashir Ahmad who had been impleaded subsequently were not parties to the case. Proceedings against the newly impleaded respondents are deemed to have been commenced only when they were made parties to the petition. Evidence recorded in their absence of which they had no knowledge and which could not be subjected to cross-examination, so far as they are concerned, could not in law be made use of against them. To do so, tantamount to saying that they are bound by even those proceedings to which they were not parties at the relevant time. In fairness to judicial propriety only that part of evidence could be read against them which had been recorded in their presence.
Basing himself on these premises learned counsel contended that the statements of two A. Ws, namely, Javed Iqbal and Muhammad Sarwar recorded in pre-remand proceedings should have been excluded from consideration altogether. Statement of Bashir Ahmad alone, thus was available material for the decision of this crucial issue. Resultant order of eviction based on cumulative effect of the entire evidence recorded in pre-remand and post-remand proceedings, therefore, was obviously illegal. Reliance has been placed upon the case of Dhiraj Lal Girdharilal v.
Commissioner of Income-tax Bombay (1) to support the contention that if a Tribunal or a Court acts on material partly relevant and partly irrelevant it is impossible to say to what extent the mind of the. Court was affected by introduction of irrelevant material used by it in arriving at its finding and such a finding, therefore, is vitiated because of the use of inadmissible material. Reliance has also been placed on AIR 1961 Mysore 160. Learned counsel has pointed out that the above point was raised in appeal but learned Additional District Judge had discreetly avoided reference to this contention in his appellate judgment.
4. Learned counsel also contended that learned Additional District Judge has disposed of the entire controversy in para. 6 of his judgment in few lines without discussing and attending to the evidence produced by the parties. Since right of second appeal under Punjab Urban Rent Restriction Ordinance, 1959 had been abolished, learned District Judge hears the appeal not as persona designata but in his judicial capacity as Presiding Officer of a principal Court in District.
Therefore, the learned first appellate judge was under legal compulsion to arrive at his own independent conclusion after discussing the evidence produced by the parties and to support the judgment with reasons. In the instant case, learned appellate Court has not complied with the requirements of law. For facility of reference the operative part of the judgment is quoted below :- "I have heard the counsel for the parties and have perused the relevant record. Mg. Ghulam Ghausia is a widow and she is not occupying any shop in Sargodha either personally or rented one.
If the son of the respondent is occupying some land and is the owner of certain agricultural property, as stated by the learned counsel for the appellants, then this fact does not reflect the case of the respondent as she
(1) AIR 1955 SC 271 ' has also claimed the eviction on the ground that his son wants to run the business in the disputed shop. The appellant has failed to question the bona fide requirement of the respondent. Bona fide requirement has been rightly decided by the learned trial Judge. I have no reason to differ with the findings arrived at by the learned Rent Controller."
' Learned counsel has submitted that the appellate judgment does not confirm to the requirements of Order XLI, rule 31, C. P. C.
5. Mr. A. R Shaukat, learned counsel for the respondents in exercise of his right of reply, has contended that though reference to the statements of A. W. 1 and A. W. 2 has been made in the order of Rent Controller, yet the finding on issue No, 3 is based on the statement of Bashir Ahmad A.W. 3, Special Attorney of the landlady and her son alone. In this view of the matter, it has been contended that the statements of these two witnesses have not been made the basis for decision on issue No,
3. Consequently, relying on the doctrine of severability and principle of law contained in section 167 of the Evidence Act, it has been contended that the judgment does not suffer from any legal infirmity. Even after the exclusion of the evidence of these two witnesses, there was sufficient evidence before the learned Rent Controller to arrive at a finding in favour of the landlady. Proceeding further, it was contended that the precise point now being agitated in writ jurisdiction may not have been argued before learned first appellate Court and, therefore, cannot be raised for the first time in writ jurisdiction. It was stated that many a points are taken in memorandum of appeal, or revision but are not pressed at the time of hearing. Presumption therefore, would be that though the point was raised but was later on abandoned. In the absence of an affidavit of the counsel arguing the appeal before learned first appellate Court, the point cannot be allowed to be agitated. It has been further submitted that since the appellate judgment simply affirmed the findings of Rent Controller, therefore, the appellate Court was not under a legal obligation to discuss each and every piece of evidence and record its own opinion in regard to it in the judgment. Proceedings under the Rent Restriction Ordinance are summary in nature and, therefore, if the learned Additional District Judge has shown a little brevity in his judgment that simplicitor should not form a basis for its reversal.
6. As observed above, statement of A. W. 1 and A. W. 2 alongwith Bashir Ahmad Special Attorney were recorded when the present petitioners Nos. 3 to 10 were not before the Court. For the first time, they have been impleaded in pursuance to the remand order made by learned Additional District Judge holding them necessary parties to the correct frame of the ejectment petition. Proceedings qua them started when they were impleaded as parties. Any evidence recorded in their absence when they were not on record could not have been used as corroborative evidence against them.
At no stage of proceeding, these petitioners consented to be bound by the evidence recorded in their absence. Therefore, both the Courts below acted illegally and with material irregularity in exercise of their jurisdiction in placing reliance on the evidence recorded in pre-remand proceedings. It seems the Courts below were not alive to this aspect of the case when evidence was being evaluated for decision of issue No,
3. Learned Additional District Judge did not advert to this aspect at all. Finding on Issue No, 3 was arrived at as result of cumulative impact created on the basis of entire evidence available on record. If the evidence earlier recorded had been kept out of consideration, what impact the remaining evidence could have produced on the mind of the Courts below cannot be judged with certainty. It has been observed by the Hon'ble Supreme Court of India in the case of AIR 1955 SC 271 : - "It is well-established that when a Court of fact acts on material partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding and such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises."
' These observations of the Supreme Court of India were relied upon in the case of Kalappa Shiddappa Uppar and others v. Bhima Govind Uppar and others (1) where it was observed : "The question which then arises for our consideration is what course we should follow in this appeal. Mr. Mahajan appearing for the respondents urged before us that the lower appellate Court independently of these recitals has come to the conclusion that the plaintiffs have established their case. I am unable to accept that contention. It appears from its judgment that the lower appellate Court has taken the recitals alongwith the other evidence adduced on behalf of the plaintiffs and has come to the conclusion that the plaintiffs have established their case. It is not possible to say that conclusion the lower appellate Court would have come to if it had discarded these statements altogether from consideration. As observed by their Lordships of the Supreme Court in Dhirajlal v. I. T. Commissioner Bombay (S) AIR 1955 SC 271, when a Court of fact acts on material partly relevant and partly irrelevant it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding, and such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises. In our opinion this case should be sent back to the lower appellate Court for a rehearing of the appeal without the statements contained in the recitals in question."
' Both these judgments, however, were rendered in appellate jurisdiction. In the case of Sardar Sher Muhammad v. Rao Bashir Ali Khan and another (2), a Division Bench of this Court dealing with some what similar situation observed :- "that jurisdiction to issue a writ of certiorari though it may be supervisory cannot be altered into appellate jurisdiction. It is open to an appellate Court to come to the conclusion that though the inferior Tribunal had given a finding on wrong assumptions, the finding would have been precisely the same if the assumptions had been correctly made, but it is not within the province of a Court called upon to exercise writ jurisdiction to say that the material on the record, even after excluding the material which was wrongly taken into consideration, was sufficient for the finding that was given."
' In another para. Of the same judgment, it was further observed that : "I cannot bring myself to look at the matter in the way that Mr. A. S. Salam would have it viewed by the Court because I have said already
(1) AIR 1961 Mys. 160 (2) PLD 1962 (W. P.) Lah. 172 ' the jurisdiction to issue writs differ vastly from the jurisdiction to hear appeals. If this were a case of an appeal against the order of the Custodian it would have been open to this Court to come to the conclusion that the finding was justified by the material on the record which could be properly considered, but as the case has not come before this Court in the exercise of appellate or revisional jurisdiction, the method in which Mr. A. S. Salam wanted the case to be dealt with cannot be adopted. It may be that the Custodian would have been given precisely the same finding even if he had not been under the impression that sanction of the Custodian was necessary with regard to the alleged sale, but it is equally possible that his finding would not have been same as it was. I am clear in my mind that if the Tribunal of special jurisdiction, whose order is sought to be declared inoperative, has taken into consideration a matter which could not at all be taken into consideration, occasion for exercise of writ jurisdiction arises."
' Similarly it has been observed in the case of Habib Ullah Khan and another v. Election Tribunal, Jhang and others (1) that : "If the Tribunal of exclusive jurisdiction has given a finding of fact on the assumption that a piece of evidence exists, while it does not, or has kept out of consideration a piece of evidence which could not have been kept out of consideration or has misread any material part of the evidence, the order of the Tribunal of exclusive jurisdiction will stand on no better footing than an order without jurisdiction and occasion for issue of a writ would arise"
Therefore, in view of the law enunciated in the precedent cases referred to above, it becomes obvious that the courts below were not justified in considering the entire evidence available on record particularly that recorded in pre-remand proceedings against the persons subsequently impleaded. Impact of evidence on the mind of the Courts after exclusion of inadmissible evidence is a matter of mere guess. One thing is clear that the statements of these two A. Ws. Could not have been considered against the heirs of Bashir Ahmad i. e. Petitioners Nos. 3 to 10.
7. In the absence of second appeal to the High Court under Rent laws, added judicial responsibility has devolved upon the first appellate Court to examine and assess evidence independently to arrive at correct. Reasoned judgment of its own, to avoid leaving traces of resentment because scope of interference in writ jurisdiction as is well established is extremely narrow. It has been observed by Mr. Narayan, J. In the case of Sailajananda Pandey v. Lakhichand Sao (2).
"It is regrettable that the final Court of fact did not apply itself properly to this case. As pointed out by my learned brother even the case of Nageshwar Bux v. Bengal Coal Company (AIR 1931 P C 186 : (10 Pat. 407) was not carefully read by the lower appellate Court. It has been repeatedly pointed out that the Legislature has entrusted a very important duty to the first appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend, and as pointed out by Rowland, J. In Bhagwan Singh v. Ujagir Singh AIR 1940 Pat. 33 the lower appellate Court has "to the best of his power, to weigh and
(1) PLD 1962 (W. P.) Lah. 797 (2) AIR 1951 Pat. 502 ' balance the evidence, facts and considerations, appearing on both sides". It must appear from the judgment of the lower appellate Court that it has made an honest endeavour to make a proper appraisement of the merits of the cases put forward by the parties, and it should never appear to the litigant public or to the superior Court that it has agreed with the trial Court, simply because it was not inclined to take much trouble over the case. Every litigant is entitled to have a decision from two Courts on question of law and fact and if the lower appellate Court does not examine the facts and the evidence for itself and does not even mention the points which the case raises, it will be certainly failing in its duty."
' Similarly in the case of Wakil Khan v. Mst. Aasia Begum and another (1), a learned Single Judge of this Court observed :- "The learned counsel for the appellant has raised various objections to the conclusions arrived at by the Courts below but without expressing any opinion on merits, I find that the learned Additional District Judge has totally failed to apply his mind to the issues and the material on record. The appellant had inter alia agitated that the findings of the Controller were based on misreading of evidence but the learned Additional District Judge did not advert the evidence and come to a conclusion of his own. All what he did was to reproduce the objections raised by the parties and without discussing the evidence he felt satisfied by remarking that each point was proved on record. The judgment of the appellate Court has to state not only the points for determination but also the specific decision on each point and independent reasons for the decision. It is a mandatory requirement so that the parties may be enabled to decide whether to appeal against the judgment and also to enable the second appellate Court to determine whether lower Court has properly understood the case. But I find that this rule has not been adopted."
The appellate judgment when examined in the light of principles of law stated above shows lack of impact of legal exposition on the basic issue raised and required to be adjudicated upon, by him.
Both the contentions, therefore raised by learned counsel for the petitioners have force. Appeal filed by the petitioners (tenants) against eviction order passed by the Rent Controller, therefore, has not been legally and properly disposed of by the learned first appellate Court. The petition, therefore, is accepted, appellate judgment is set aside and is declared to have been passed without lawful authority. The case therefore, is remanded for rehearing and its decision afresh by learned Additional District Judge. Parties are directed to appear before learned Additional District Judge, Sargodha on 25th June, 1984 for further proceedings in the matter. He is further directed to decide the appeal before coin men cement of summer vacations.
' In the circumstances of the case, parties are left to bear their own costs.