1. ' Gulzar Akhtar, wife of A. Nasir Siddiqui, resident of Pakistan Chowk (Shishian Wala Gate), Gujrat City filed an application under section 13 of the Urban Rent Restriction Ordinance, 1959, for ejectment against Abdul Hafiz, son of Chaudhary All Muhammad and another.
2. ' Respondent No. 1, Abdul Hafiz, denied the relationship of landlord and tenant. A preliminary issue regarding this point was framed by the Rent Controller. Some evidence was recorded. The Rent Controller by his order, dated 29-7-1980 decided the issue in favour of the landlady.
3. ' The petition pertained to a shop bearing No. B-2/469, situated in Pakistan Chowk, Gujrat, in possession of Abdul Hafiz, who was doing tailoring business therein. On three grounds the landlady wanted the respondents to be evicted-personal need; sub-letting by respondent No. 1 and impairing the value of the property. The respondent resisted the application. The Rent Controller framed the following issues:--
(1) Whether the applicant requires the premises for her personal use and in good faith? O.P.A.
(2) Whether the respondent No. 2 has been inducted as sub-lessee by the respondent No. 1? O.P.A.
(3) Whether the value of the premises has been impaired by the respondent No. 1? OPA.
(4) Relief.
4. ' All the issues were decided against the landlady with the result that her application was dismissed by order, dated 26-6-1982. She went in appeal before the District Judge. That too was dismissed by the Additional District Judge by judgment, dated 8-11-1983.
5. ' Having exhausted all the remedies available to the lady under the law, she turned to this Court and filed the present petition under Article 9 of the Provisional Constitution Order, 1981 in which she challenged the legality of the two orders passed against her by the Rent Controller and the Additional District Judge.
6. ' The petition was admitted to regular hearing on 14-5-1984. On 8-12-1984 I allowed the learned counsel for the petitioner to submit written arguments. Learned counsel for the respondents also filed written arguments on 10-12-1984. Nevertheless, I heard the learned counsel for the parties.
7. ' Learned counsel for the petitioner after taking me through the relevant evidence contended that the Rent Controller did not consider the material evidence and decided the issues on conjectures. It was further submitted that the evidence produced by the petitioner was misread. This resulted in lack of exercise of jurisdiction vested in the Rent Controller. It was argued that normally a finding of fact is conclusive and the superior Courts are reluctant to interfere with such a finding in the writ jurisdiction, but nevertheless there are cases where a finding of fact was upset because it was contrary to the evidence brought on record, based on conjectures and was arbitrary. In this sequence the learned counsel drew my attention to the statement of the petitioner recorded by the Rent Controller and other witnesses produced by the petitioner. He then compared it with the evidence produced by the respondents.
8. ' In support of his contentions, learned counsel for the petitioner relied on Rahim Shah v. Chief Election Commissioner of Pakistan and another PLD 1973 SC 24, Employees' Welfare Union v. R.B.
9. Industries Ltd., Karachi and another PLD 1976 Kar. 297, Messrs Jan Textile Mills, Karachi v. Sind Labour Appellate Tribunal and 2 others PLD 1977 Kar. 836, Miss Nasreen Fatima Awan v. Principal, Bolan Medical College, Quetta PLD 1978 Quetta 17 and Syed Riaz Hussain v. Muhammad Iqbal, etc. NLR 1981 Civil 220.
10. ' The law laid down in these decisions is that normally in writ jurisdiction the High Court does not interfere with a finding of fact or appraisal of evidence, yet it would interfere if such finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power, and unreasonable views on evidence.
11. ' On behalf of the respondents, objection was raised with regard to the maintainability of the writ petition. It was contended that the petitioner having fully exhausted the remedies available to her under the law was entitled to no relief in the writ jurisdiction of this Court which meant to correct error of law resulting from excess or lack of jurisdiction. It was submitted that it is not the function of this Court to re-appraise evidence. That has already be done by the appellate Court. The High Court has only to see whether the orders passed were with or without jurisdiction If they were with jurisdiction, then the High Court would not interfere even though the decision was erroneous.
12. Reliance was placed on Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139.
13. ' On merits, it was submitted that both the Courts below have given a concurrent finding of fact against the petitioner. The same cannot be interfered with by the High Court. Reliance was placed on PLD 1976 SC 214, PLD 1979 Lah. 1 and 1983 CLC 133.
14. ' I don't think it necessary to discuss the evidence of the parties in detail. All that I have to make sure is as to whether it is a fit case for interference in the jurisdiction under Article 9 of the Provisional Constitution Order and for that matter the finding of the Rent Controller or that of the appellate Court is of such type which resulted in lack of exercise of proper jurisdiction and on account of that the impugned orders can be taken to be without lawful, authority and as such of no legal effect.
15. 'I find that the Rent Controller and even the appellate Court made certain observations which were uncalled for. These were almost personal remarks, which were not expected from the Courts while discharging their judicial functions. They should refrain from making such type of observations.
16. ' While dealing with issue No. 1 the Rent Controller observed, "One can't expect of a lady consuming ripe years of her life to indulge in the establishment of any industrial home now, when almost she is at the last edge of her health." These are derogatory type of remarks and are not expected to be made in judicial proceedings. Similarly, there was no need to make the following observation by the appellate Court: "Again, the property cannot be put to use as industrial home as young woman cannot be engaged at a public place."
17. ' Such type, of observations do lend support to the learned counsel for the petitioner that the decision given by the Rent Controller, confirmed by the appellate Court, was based on conjectures and was arbitrary.
18. ' The issue before the two Courts below was whether the petitioner required the property for her personal use. They should have decided the same confining themselves to the evidence brought on record by the parties and not by making such type of observations. This shows lack of application of judicial mind.
19. ' For the foregoing reasons, I am of the view that the impugned orders cannot be sustained in law. I, therefore, declare them to be without lawful authority and as such of no legal effect. The case shall go back to the District Judge, Gujrat, who shall entrust the same to some other Rent Controller of competent jurisdiction so that he may decide it afresh in accordance with law. No costs.