2003 PLP 480 (MLD)

‑‑‑‑S.18‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Contention of the petitioner was that both the Courts of Rent Controller and the District Judge had not properly appreciated the evidence‑‑‑Validity‑‑‑Question pertaining to application of facts could not be resorted to, in exercise of Constitutional jurisdiction by High Court, for the simple reason that in doing so the Constitutional petition shall be converted into a revision or second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated‑‑‑Constitutional petition being not a substitute either for revision or the second appeal, Constitutional petition shall be entertained if a case was made out to the effect that the Rent Controller and First Appellate Authority had made an error palpably without jurisdiction or, there was case of lack of jurisdiction or the finding was so perverse, that it was not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law had been violated‑‑ Constitutional petition, in rent matters and in all such cases in which no second appeal or revision was provided in law, shall not be entertained, until and unless there was a jurisdictional error committed by the Courts below‑‑‑Principles. The contention in the present case was that, the two Courts below have not properly appreciated the evidence. Question pertaining to appreciation of facts cannot be resorted to, in exercise of Constitutional jurisdiction by High Court, for the simple reason that in doing so the petition shall be converted into a revision or second appeal and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters to first appeal, shall stand frustrated. A writ petition is not substitute either for revision or the second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provision of law has been violated. No Constitutional petition in rent matters and in all such cases in which no second appeal or revision is provided in law, shall be entertained, until and unless there is a jurisdictional error committed by the Courts below. The exercise of jurisdiction in a perverse or arbitrary manner or ignoring the material available on record or violation of any provision of law, substantive or procedural, causing miscarriage of justice or violation of established principles of administration of justice shall bring the case within the purview of jurisdictional error. High Court, while exercising Constitutional jurisdiction shall not enter into appreciation of evidence, even if there is possibility of arriving at any other conclusion on the appreciation of evidence. Since the petition is not substitute of appeal, therefore, the contention is found to be beyond the scope of Constitutional jurisdiction and requires no consideration. (c) Constitution of Pakistan (1973)‑‑ ‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑ Constitutional petition, in rent matters and in all such cases in which no second appeal or revision was provided in law, Shall not be entertained, until and unless there was a jurisdictional error committed by the Courts below. Abdul Qadir Shaikh for Petitioner. Respondent No. 1 in person. Nemo for Respondents Nos.2 and

3. Date of hearing: 16th December, 2002. Through this petition, the petitioner has assailed the order of learned 1st Rent Controller, Sukkur, whereby the ejectment application filed by respondent No. 1, was granted and has further assailed the judgment of learned District Judge, Sukkur dated 19‑1‑2002, in Rent Appeal No. 136 of 2001, whereby the appeal has been dismissed. First contention raised by Mr. Abdul Qadir Shaikh learned counsel for the petitioner is that the petitioner was tenant in the premises in question, previously owned by Mst. Husna. The opponent subsequently purchased the property but did not serve notice under section 18 of Sindh Rented Premises Ordinance, 1979 and consequently the petitioner could not be held to be a defaulter. He has submitted that the learned trial Court as well as the 1st Appellate Court have ignored this provision of law. However, a 'perusal of the 1st Appellate judgment shows that the learned District Judge has considered this point. Learned District Judge has observed that although no notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was issued by the respondent but the petitioner filed a suit for injunction against the respondent and in the written statement filed by the respondent in said suit being 3rd Class Suit No.48 of 1988, the factum of purchase of property by the respondent was disclosed and thus the petitioner had sufficient notice of the transfer of property which has served the purpose of section 18 of the Sindh Rented Premises Ordinance, 1979. Learned counsel for the petitioner in support of his contention stated that without service of notice by registered post under section 18, a tenant cannot be held to be a defaulter has placed reliance on a Single Bench judgment of this Court in the case of Philomena Mathew v. Mrs. Abida Riasat (1993 CLC 2307). However, learned counsel was apprised of the fact that after the above judgment, a large number of judgments have been given by the High Court as well as by the Honourable Supreme Court, to the effect that if the tenant. of the previous owner is informed by the subsequent owner or landlord of the transfer of the premises, then the purpose of section 18 is served and from the date of such notice the tenant shall be duty bound to pay the rent to the new landlord and in the case of non‑payment shall be held to be defaulter. Learned counsel has very frankly conceded that he is aware of such judgments, but has submitted that the requirement of section 18 is that a notice by registered post A/D is to be served. Since the learned counsel for the petitioner is aware of the judgment to the contrary, therefore. I need not to dilate on this point in depth and detail. The law is to be applied as interpreted by the superior Courts, and, in view of plethora of rulings on the point contrary to the contention of learned counsel for the petitioner and as contained in the case of Philomena Mathew (supra). I am of the opinion that by now it stands established, that, the stricto senso compliance of the service of notice by registered post A/D, under section 18 of Sindh Rented Premises Ordinance, 1979 is not required. If the tenant has been made sufficiently aware of the transfer of property by the previous owner, the tenant shall be protected from being declared defaulter till the date of sufficient notice to him only and thereafter no protection shall be available to the tenant. Thus the learned two Courts below have acted in consonance with law as interpreted by the superior Courts, with the result that they have not committed any illegality or material irregularity in exercise of their jurisdiction. The second contention of Mr. Abdul Qadir Shaikh, learned counsel for the petitioner is, that, the learned two Courts below have not properly appreciated the evidence. I am of the considered opinion that question pertaining to appreciation of facts cannot be resorted to, in exercise of Constitutional jurisdiction by this Court, for the simple reason that in doing so the petition shall be converted into a revision or second appeal and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated. A writ petition is not substitute either for revision or the second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law has been violated. No Constitutional petition in rent matters and in all such cases in which no second appeal or revision is provided in law, shall be entertained, until and unless there is a jurisdictional error committed by the Courts below. The exercise of jurisdiction in a perverse or arbitrary manner or ignoring the material available on record or violation of any provision of law, substantive, or procedural, causing miscarriage of justice or violation of established principles of administration of justice shall bring the case within the purview of jurisdictional error. Learned counsel for the applicant is not able to show that any such act has been committed by the learned two Courts below. This Court, while exercising Constitutional jurisdiction shall not enter into appreciation of evidence, even if there is possibility of arriving at any other conclusion on the appreciation of evidence. Since the petition is not substitute of appeal, therefore, the second contention is found to be beyond the scope of Constitutional jurisdiction and requires no consideration. For the foregoing reasons, I am of the considered opinion that it is not a fit case for interference in exercise of Constitutional jurisdiction, with the result that petition stands dismissed in limine alongwith listed applications. However, the petitioner is allowed one month time from today to vacate the premises and hand over the vacant possession thereof to the respondents. M.B.A./S‑251/K Petition dismissed.