P 1 D 1982 Lahore 401 (PLP)

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question order dated 28‑5‑1980 passed by the learned Additional District Judge, Gujranwala.

2. The facts necessary for the purposes of this petition, briefly stated,, are that respondent No. 1 instituted an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, before the Rent Controller, Gujrawala, against the petitioner for ejectment of the latter from the shops in dispute situated in Satellite Town, Gujranwala. The grounds taken in the ejectment application were default in payment of rent by the petitioner since April, 1977, till the date of institution and bona fide require ment of ‑ the premises in dispute for the use of respondent's son and her husband. The application was resisted by the petitioner and on the divergent pleadings of the parties, the following issues were framed :‑ (1) Whether the respondent has committed wilful default in the payment of rent ; if so, its effect ? (2) Whether the petitioner required the property for her personal need ? (3) Relief. The learned Rent Controller by his order dated 25‑7‑1979 found both the issues in favour of respondent No. 1 and accepting the eviction application directed the petitioner to hand over the possession of the disputed shops to respondent No. 1 within one month from the date of the order.

3. The petitioner did not feel satisfied with this order of the learned Rent Controller and preferred an appeal before the learned Additional District Judge, Gujranwala, who by his judgment dated 28‑5‑1980 concurred with the findings of the learned Rent Controller on both the issues and dismissed the appeal with costs. He also allowed one month's time to the petitioner to vacate the shops in dispute.

4. Being aggrieved of this judgment of the learned Additional District Judge, the petitioner initially filed S. A. O. No. 462 of 1980 but on account of the amendment in law, the same was withdrawn and the present. Constitutional petition was filed against the judgment of the learned Additional District Judge.

5. The learned counsel for the petitioner only contended that the findings of the learned Additional District Judge on both the issues are based on non reading of the record.

6. As regards the first issue, the learned counsel submitted that the learLed Addif ~'f onaT District Judge while observing :‑ "This argument of the learned counsel for the appellant is of no avail to the appellant because it is not the plea of the appellant in his reply that the respondent had been receiving rent of more than two months' time in the accumulated form or that in accordance with the routine he had deposited this accumulated rent. Had this been the plea of the appellant in his reply or in his statement in Court, this argument might have been of some avail to the appellant." has ignored to look into para: 3 of the reply filed by the petitioner to the eviction application wherein this plea of payment of rent in accumulated form has been specifically taken. The learned counsel also referred to the statement of the attorney of respondent No. I to show that it was admitted that the payment of rent was made in accumulated form.

7. As regards Issue No. 2, the learned counsel for the petitioner sub mitted that the learned Additional District Judge. was all along labouring under the impression that there is only one shop in dispute whereas, in fact, the dispute pertains to two shops and had he read the record properly, he would not have directed the eviction of the petitioner from both the shops.

8. On the other hand, the learned counsel for respondent No. 1 submitted that there are concurrent findings of the Courts below on the issues in question which are findings of fact and are not open to question in the Constitutional jurisdiction of this Court. Reliance was placed by him on Muhammad Sharif and another v. Muhammad Afzal Suhail etc. (1) and Syed Shah v. Political Agent, Bajaur Agency and 3 others (2) in support of the above contention.

9. As regards the payment of rent in accumulated form, the learned counsel for respondent No. 1 contended that the receipt of rent by the landlord in accumulated form on some occasions does not absolve the tenant from paying the rent regularly on due dates and non‑payment of rent of any one month even if the rent was being received in the accumulated form earlier constitutes the default and the discretion having been exercised by the Rent Controller in the attendant circumstances of the case to direct eviction of the petitioner, this Court should not interfere with the exercise of the discretion in the Constitutional jurisdiction, especially when the discretion has been affirmed by the Appellate Authority in the concerned hierarchy. Reliance in support of the above contention was placed on Messrs Tar Muhammad Janoo & Co. v. Taher All and others (3). (1) P L D'1981 S C 246 (2) P L D 1981 Pesh. 57 (3) 1981 S C M R 93 s

10. The learned counsel for respondent No. 1 further submitted that it is the admitted position that the son of the respondent refused to receive the rent in August, 1977. Assuming this to be the correct statement, the petitioner had come to know in August 1977 that the respondent was not receiving the rent for the month of June 1977 and consequently had also come to know that if the rent for the month of June was not paid by 30‑8‑1977, default would occur. The petitioner, it is contended, despite this knowledge, did not deposit the rent within time i. e. within the month of August, 1977 but deposited it on 13‑10‑1977 which constituted a wilful default and so has it been held by the learned Rent Controller. There is thus nothing on record to show that the finding arrived at by the learned Rent Controller is in any manner, discrepant. 11: The learned counsel for the petitioner in reply only submitted that having come to know of the refusal in August 1977, the sixty days latitude given by section 13(2) (i) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959. shall commence from the date of knowledge of refusal.

12. Before dealing with the merits of the case it seems appropriate to observe that the right of second appeal to the High Court against order passed under the West Pakistan Urban Rent Restriction Ordinance (V of 1959) having been taken away by an amendment in law, to allow the raising of disputed questions of fact arising out of such orders in the Con stitutional jurisdiction of this Court would tantamount to deflecting the intention of the Legislature which is neither the purport nor intent of Article 199 of the Constitution. The said provision, as I read it, is essentially meant to put a check and restraint on the illegal assumption or such exercise of jurisdiction or refusal to exercise the same by functionaries of the Govern ment, tribunals etc. and to ensure that persons charged with the performance of functions in connection with the affairs of .the governments or a local authority perform their functions only in accordance with law.

13. It is well settled that issue of default in payment of rent relate to a disputed question of fact and a finding in respect thereof has been held by judicial precedents to be not open to question even in a second appeal when it was available. That being so, a finding as regards this issue would not appropriately fall for determination in the constitutional jurisdiction of this Court unless, of course, the same is shown to be patently contrary to. record, capricious or arbitrary.

14. I am fortified in my above view that orders passed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) would not be ordinarily amenable to the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 or Article 9 of the Provisional Constitution Order, 1981 by Muhammad Sharif and another v. Muhammad Afzal Suhall etc.

15. The above position apart, on merits of the case also I find that the contentions raised on behalf of the petitioner have no force. The learned counsel for respondent No. 1 has very aptly pointed out that the rent for the month of June 1977 should have been paid or tendered by the petitioner before 30‑8‑1977 at the latest. The refusal by the son of respondent No. I having been admittedly made in the month of August 1977, there was no impediment in the way of the petitioner to have deposited the rent before 30‑8‑1977. He, however, chose to wait till 13‑10‑1977 to deposit the rent for this month which was beyond the period envisaged by section 13(2) (i) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). It has, therefore, been rightly held by the learned Rent Controller that the petitioner had committed default in payment of rent for the month of June 1977. The default in the attendant circumstances as discussed above has also been held to be wilful and the discretion in view of the above position has been exercised by the learned Rent Controller in directing the ejectment of the petitioner. That being so, the finding on issue of default cannot be allowed to be agitated before this Court in its Constitutional jurisdiction.

16. At best the petitioner has tried to make out a case where another conclusion could be arrived at but then the mere fact that another conclusion could be arrived at on the basis of the material on record than the one arrived at by the tribunal of exclusive jurisdiction would not make the orders of the tribunal of exclusive jurisdiction liable to be quashed in exercise of the constitutional jurisdiction. There can be no cavil with the well‑settled principle that tribunals of exclusive jurisdiction are empowered to decide disputed questions of fact rightly or wrongly and the mere fact of a decision of the tribunal of exclusive jurisdiction being wrong on a question of fact would not render the decision without lawful authority. Reference, if any, required may be made to Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139, Muhammad Sharif and another v. Muhammad Afzal Suhafl etc. and Syed Shah v. Political Agent, Bajaur Agency and 3 others.

17. As regards the issue of requirement of the premises by the landlady for bona fide use of her son and husband, suffice it to say, is also an issue of fact and thus not open to question in the Constitutional jurisdiction of E this Court. The learned Rent Controller has admittedly given a finding on this point after due consideration of the material on record and the only objection in this regard is qua the order of the learned Additional District Judge, Gujranwala, in that he while discussing this issue referred to the shops in dispute as a shop in dispute which may have resulted according to the learned counsel for the petitioner in erroneous finding on this issue by him. Even if it be assumed that the argument of the . learned counsel as regards the judgment of the learned Additional District Judge has some force, no fault having been pointed out by him as regards the findings of the learned Rent Controller on this issue, no interference is called for in the matter.

18. In view of the foregoing reasons, I find no merit in this petition which is, accordingly, dismissed. There will, however, be no order as to costs. s. A. H. Petition,,dismissed.