' Property Survey No, IV-41-S-37, situated in Kucha Buleh Shah Kot Usman Khan, Kasur was transferred to Mst. Bhagan Bibi wife of ' Jamal Din on 20-2-1979, by the Settlement Department. She filed an ejectment petition on 21-9-1980 against Muhammad Afzal and Muhammad Akram, two brothers, for their eviction from the above-noted property on account of default in payment of rent since the month of December, 1979 to September, 1980. Monthly rent was stated to be Rs,50, - ejectment was also sought on further two grounds; damage to the property and its impairment in value and utility and a bona fide personal requirements. In the ejectment petition, it was stated that the tenancy was contractual. Respondents resisted their ejectment, filed statement of defence. It was averred that they came to occupy the property in dispute a few months after partition of sub-continent. Their possession dates back to 30 days,u therefore, they claimed to be statutory tenants of the property in dispute. Absence of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 since repealed, was pleaded and was stated that in the absence of the notice, statutory relationship, has not come to be .regulated by general law of the land. It was in this background, that relationship and jurisdiction to proceed with the rent application, was questioned. It was further stated that notice under section 13-A of Ordinance VI of 1959, was not served and in the absence of notice under section 13-A, the ground of default, was not available to the petitioner lady. Transfer of property was also disputed on .the ground of fraud and misrepresentation. Improvement expenses were also claimed in the written statement. On 8- 12-1980 Rent Controller settled the following issues:-
(1) Whether relationship of landlord and tenant does not exist between the parties? O.P.R.
(2) If issue No, 1 is not proved, whether the petition is pre-mature?
(3) Relief.
2. Parties produced evidence in support of the above-stated issues. On 18-2-1981, occupants moved an application for recasting and resettling the issues framed and also objected to the placement of onus. This petition described as review petition was dismissed by Rent Controller.
Thereafter, as the reading of the original file shows, on 13-1-1982, Rent Controller, vide order recorded in Urdu recast issues Nos. 1 and 2 and framed the following issues:-
(1) Whether the contractual tenancy exists between the parties?
(2) Whether statutory tenancy exists between the parties.
(3) Whether notice under section 30 of Displaced Persons (Compen sation and Rehabilitation) was necessary to be served upon the respondents by the petitioner?
(4) Relief.
3. After the issues were recast and re-settled, in the above-noted form some more evidence appears to have been recorded. I may point out that I have experienced real difficulty in deciphering the Rent Controller, record which is in hand not easily readable. Petition for additional evidence, moved by the writ-petitioners was turned down on 1-2-1983. After the case was concluded, respondents (writ-petitioner) prayed for withdrawing of objections reflected in issues Nos. 2 and 3 on 25-5-1983. Consequently, as a result of the statement, Rent Controller struck off the above-noted issues Nos. 2 and 3, vide order, dated 30-5-1983. Rent Controller found issue No, 1 in favour of Mst. Bhagan Bibi and proceeded to order ejectment of Muhammad Akram etc. forthwith, without further inquiry into the allegation of default etc. Appeal filed did not succeed and was dismissed by the learned Additional District Judge, vide order, dated 27-3-1984, eviction order has been assailed in constitutional jurisdiction.
4. I have heard learned counsel for the parties at length and have been taken through the records.
Learned counsel contended that the ejectment petition was based on oral contractual tenancy.
There was neither any written agreement in support of the tenancy nor any other documentary evidence, to show payment/receipt of rent. Oral evidence adduced in support of contractual tenancy was wholly discrepant and was not worthy of the reliance. This is that type of evidence, on which no reasonable mind could have come to such a conclusion. Oral evidence of a very high order and unimpeachable character was required to sustain the finding of oral tenancy. In this case Mst. Bhagan Bibi had stated in the ejectment petition that after the transfer of property, in her favour, she rented it out to Muhammad Akram etc. in the month of November, 1979 at the monthly rental of Rs,50. Rent for one month Only was paid and thereafter the occupant neither paid nor tendered the rent. Default since the month of December, 1979 to September, 1980 was alleged in the eviction petition. As against this, the case of opponents in the written statement was that they were statutory tenants and in the absence of the required notice relationship did not come to have been governed by the general law. The relationship of landlord and tenant was denied in these circumstances. It is contended that one of the respondents appeared and stated that the property was in their possession since long and that they had neither executed any rent agreement nor paid the rent. The respondents were supported by another witness also. Complaint was made that Rent Controller did not allow them to produce certain documentary evidence, which could have shown beyond doubt that their possession related to a period much prior to transfer in favour of Mst.
Bhagan. Writ-petitioner has appended certain documents with writ petition especially part Nikahnama which prima facie supports the contention. Learned counsel further stated that the learned appellate Judge, without discussing evidence and looking to it independently, has affirmed the finding on issue No,
1. It was stated that there has not been a proper trial of the case which in result has caused grave miscarriage of justice. High Court in its equitable constitutional jurisdiction should step into undo the wrong done to the writ-petitioners rights, on the other hand, learned counsel for respondent landlady vehemently stressed that the Courts below having exclusive jurisdiction, on appreciation of evidence, have returned concurrently concluded finding of fact and found that contractual tenancy was proved. In the presence of this finding of fact, the High Court in its constitutional jurisdiction cannot and should not assume the role of a Court of appeal to re- examine and re-appraise the factual controversy, to arrive at its own conclusion, be that of fact or law. In the absence of any jurisdictional error or misreading or non-reading of evidence, the High Court cannot and should not interfere. This interference, would deflect the Legislative intent, which has withdrawn the right of second appeal in rent matters, 5.It is correct, that High Court in its constitutional jurisdiction should not assume the role of a Court sitting in appeal, over the judgments/order of special tribunals invested with the exclusive jurisdiction to entertain and decide certain classes of disputes, to disturb finding on questions of fact supported by evidence. Nonetheless, if the Court or tribunal of exclusive jurisdiction proceeds to record a finding on evidence which no reasonable person could have come to, or misreads the evidence or does not consider the material evidence or there is some error apparent on the face of record, High Court must unhesitatingly, interfere to correct such a patent error. In Saleh Muhammad v. Muhammad Roz PLD 1962 Lah. 68, a Division Bench of the Lahore High Court has observed that occasion for exercise of writ jurisdiction was a view to setting aside finding on a question of fact can arise on very limited grounds. The circumstances in which a finding of fact given by a tribunal of exclusive jurisdiction in a matter may be rendered ineffective by the High Court in the exercise of writ jurisdiction would be either that the finding has been given on the basis of no evidence at all or that the evidence has been completely misread, that the finding cannot be based on evidence. In W.M. Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1962 Lah. 468, it has been observed that ordinarily a Court called upon to issue a writ has to accept as correct the finding of fact given by a tribunal of exclusive jurisdiction. This, however, does not mean that the findings of fact given by tribunal of exclusive jurisdiction are sacrosanct under all circumstances. If a tribunal of exclusive jurisdiction, had, when arrived at a finding of fact, misread the evidence or had considered evidence which could not have been considered at all or had failed to consider the evidence which it was duty bound to consider, or should have considered, the finding rendered by a tribunal of such exclusive jurisdiction cannot claim immunity from judicial review. in Habib Ullah Khan v. Election Tribunal P L 1) 1962 Lah. 797, the Court observed:- "However I am not be understood to be saying that the findings of fact given by tribunal of exclusive jurisdiction are sacrosanct before a tribunal which has merely the power to issue a writ and not to hear an appeal or a petition for revision against the order which has been attacked because I am clear in my mind 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 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."
' Similar observations are found in case Hafiz Hakim and others v. Muhammad Anwar Khan etc. PLD 1963 (W.P.) Lah. 63 where the Court observed that finding of fact arrived at by tribunal of exclusive jurisdiction, if erroneous or contrary to record there is nothing to prevent the High Court from going into that question.
6. A glance the evidence would show that the property was transferred to Mst. Bhagan Bibi on 20- 2-1979 and was, according to her, given to the tenants in November, 1979 at the rate of Rs,50 p.m.
Rent for one month only was allegedly paid. Agreement was not executed. In her evidence, she deposed, that even rent was not paid. She does not get any support from the deposition of ljaz in regard to payment of rent. Muhammad Afzal deposed about their possession, which according to him existed much prior to the transfer. On similar strain was the statement of R.W.2. It has been observed in Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480 that when both parties stand to gain or lose valuable property, the oral evidence is to be approached with caution and it is safer to 'rely on that evidence which is in accordance with admitted circumstances and probability. In Ahmed Din v. Mst. Nisa and another PLD 1961 (W.P.) Kar. 237, a Division Bench of the High Court observed:- "Tenancy is a status which carries certain advantages, that status must be secured by evidence of a very high order and mere oral evidence, cannot be relied upon."
7. The evidence produced in this case in support of the plea of oral tenancy, was hardly sufficient to sustain an affirmative finding in favour of Mst. Bhagan Bibi. However, I cannot leave the matter here driving Mst. Bhagan to take appropriate remedy in civil Court only. There is one redeeming feature for her in this case. Writ-petitioners in their written statement, had clearly admitted the tenancy, though statutory. In their evidence and before this Court also, it was asserted that their possession dates back to a period prior to the year 1958. In this manner, they clearly asserted and claimed statutory tenancy. Absence of notice under sections 30 and 13-A was also pleaded. On this part of their pleading issues Nos. 2 and 3 were framed by Rent Controller. Once the writ-petitioners have admitted that they are tenants of the property, they cannot be permitted to withdraw the admission made in their pleading in unequivocal terms. Written statement as at present does contain this admission. When the matter is looked at from this angle, the tenancy is admitted, not contractual, but statutory. Creation of the statutory relationship of landlord and tenant, is not dependent on service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. Refer Muhammad Ramzan v. Ch.I Bashir Ahmad PLD 1981 SC 340 Tenancy thus stands admitted. After) the Act was repealed, service of notice under section 30 was no longer necessary. Rent Controller has not decided the controversy on merits. The case, therefore, had to be remitted to him for decision afresh on merits after affording an opportunity of leading evidence to both the parties. Rent Controller shall endeavor to complete the case within a period of four months from the date copy of order is received by him and shall intimate this Court about the compliance. Writ petition in terms of the above order, therefore, is allowed. Parties to bear their own costs.