1987 PLP 2085 (CLC)

6. This second application ‑was again resisted by the petitioner through written statement (Copy Annex B) whereby he denied the existence of relationship of landlord and tenant between the parties. In the written statement, it was pleaded that the arrangement was that the petitioner would continue to strive for getting possession of the house situate at Al‑Fateh Road, Ichhra, Lahore which when done, the possession of the respective houses would be exchanged and then alone the sale‑deeds executed in favour of the respective parties would be deemed to be effective. To achieve this, the respondent and his son were to render all help, monetarily and otherwise, including resort to Law Courts and other Legal Institutions. It was also claimed by the petitioner in his written statement that in view of the earlier withdrawal of the eviction application, the present ejectment application was not legally competent under Order XXIII, Rule 10) of the Code of Civil Procedure.

7. In the light of the parties pleadings, the learned Rent Controller framed the following issues: ‑ (1) Whether the relationship of landlord and tenant exists between the parties? O.P.P. (2) Whether this petition is barred under Order XXIII, Rule 1(3), C.P.C.? O..P.R. (3) Relief. After recording the parties evidence and after hearing them, the learned Rent Controller found issues Nos. 1 and 2 in favour of the respondent and consequently vide his orders dated 19‑1‑1982, directed the viction of the petitioner from the premises in question.

8. The petitioner, feeling aggrieved, preferred an appeal which also failed and was dismissed by the learned Appellate Authority (an Additional District Judge, Lahore), on 2‑,2‑1984. Thus, the present Constitutional Petition.

9. It has been mainly contended on behalf of the petitioner that while passing the impugned judgments, the learned Rent Controller as also the learned Additional District Judge have failed to consider that on the earlier occasion when the former eviction application of the respondent was dismissed as having been withdrawn, he did not claim existence of relationship of landlord and tenant between the parties and, therefore, in the subsequent eviction application he could not prefer such a self‑contradictory claim.

10. In order to establish the existence of relationship of landlord and tenant between the parties, the respondent examined before the learned Rent Controller, P.W.1 Muhammad Sharif Anwer, P.W.2 Muhammad Bashir, P.W.3 Rashid son of Ghulam Muhammad, while he himself came to the witness‑box as P.W.4. P.W.1 Muhammad Sharif Anwer, who claims to be the marginal witness of the sale‑deeds relating to the disputed premises, did not oblige the respondent and stated that he was not aware as to whether any arrangement was arrived at between the parties in regard to delivery of possession of both the houses sold to each other. He did not state that the petitioner was to continue as tenant in the disputed house under the respondent. P.W.2 Muhammad Bashir, however, deposed that he happened to be the Mohalladar of the parties and that the petitioner lived in the disputed house as a tenant and that the rent for the month of April, 1978, at the rate of Rs.400 was paid by the petitioner to the respondent in his presence. He admitted in the cross‑examination that no amount was paid in his presence. He further admitted that he happened to be a friend of the son of the respondent. This witness admitted that Mohammad Arshad son of the respondent had also sold a house in favour of the petitioner and that the possession of that house was with one Abdul Waheed. P.W.3 Rashid stated that the petitioner was in possession of the disputed house as tenant. He, however, disclosed that he had heard about this fact that the petitioner was in possession of the suit house as tenant and that rent for one month was paid by him to the respondent. Such a hearsay evidence is not legally admissible in evidence. P.W.4 Mian Muhammad Din, respondent, himself disclosed that 4/5 days after the execution of the sale‑deeds, they sent for the petitioner to their 'Baithak'. Three sons of the respondent were also present there. He was asked to vacate the house. He told that he was in search of some alternate accommodation and when he was able to get such accommodation, he would vacate the house. He, however, paid Rs.400 as rent for the month of April, 1978, to the respondent. Thereafter, he failed to pay the rent. The respondent when confronted in his cross‑examination with the contents of his earlier eviction application and also with those of his statement earlier made before the learned Rent Controller in which he did not claim the existence of relationship of landlord and tenant between the parties, he could not offer any explanation whatsoever for the contradictory stand taken in the subsequent eviction application giving rise to the present Writ Petition.

11. The petitioner in rebuttal examined R.W.1 Khawaja Ahmad Din and R. W. 2 Baba Allah Ditta, while he himself came in to the witness‑box as R.W.3. R.W.‑1 Khawaja Ahmad Din is the marginal witness of the sale‑deed relating to the house situate at AI‑Fateh Road, Ichhra, Lahore. R.W.2, Baba Allah Ditta disclosed about the arrangement arrived at between the parties to the effect that when the possession of the house at AI‑Fateh Road, Ichhra, Lahore, would be delivered to the petitioner, he would surrender the possession of the disputed house in favour of the respondent. To the same effect is the statement of the petitioner himself as R.W.3.

12. After considering the aforementioned evidence the learned Rent Controller as also the learned Appellate Authority came to the conclusion that the relationship of landlord and tenant got establish‑d between the parties.

13. There can be no dispute about the fact that the petitioner has sold the house in dispute in favour of the respondent and, therefore, the title in respect of the house since after the execution of the sale‑deeds vests in the respondent but by transfer of title in this manner the petitioner has not become ipso facto as tenant under the respondent in respect of the suit house unless it was proved that the contract of tenancy was entered into between the parties after the execution of the sale‑deed. In this behalf the stand taken by the respondent in the subsequent eviction application is, contradictory to what he had alleged in his previous eviction application. The allegation that a few days after the execution of the sale‑deed the petitioner agreed to remain in occupation of the disputed house as tenant and that he paid a sum of Rs.400 on account of rent for the month of April, 1978, has not been proved with the help of the evidence brought on record by the respondent. There is no explanation on the record to the effect that why in the earlier eviction application he categorically alleged that the petitioner after execution of the sale‑deed continued to remain in possession of the suit house and when he was asked to vacate it, he denied to do so and asked the respondent to have recourse to legal action. In that application and even in the statement made before the learned Rent Controller, by the respondent, it was not alleged or stated that after the execution of the sale‑deed, the petitioner remained in occupation of the housel as tenant. In view of the earlier plea taken by the respondent, his contradictory plea taken in the subsequent eviction application cannot be accepted. The learned Rent Controller and the learned Additional District Judge have, in fact, misread the parties evidence and have misconstrued the same. They have failed to take into consideration that on the earlier occasion the respondent expressly admitted non‑existence of relationship of landlord and tenant between the parties.

14. It has been urged on behalf of the respondent that in exercise of writ jurisdiction the High Court cannot adopt the role of an appellate Court and, therefore, it cannot interfere with the decision of a Court or Tribunal of inferior jurisdiction simply because in its opinion the decision was wrong. A Court or a Tribunal having jurisdiction in the matter has the jurisdiction to decide rightly or wrongly. Reliance in this behalf has been placed on Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139.

15. There can be no second opinion in regard to the proposition canvassed in the aforementioned judicial precedent but where a Tribunal or a Court having jurisdiction in the matter has decided the same by misreading the evidence or its decision is based on non‑reading, of evidence or while arriving at such decision, the Court or the, Tribunal has failed to follow the law relating thereto as laid down by the superior Courts, then the High Court can lawfully interfere with such a decision in exercise of its writ jurisdiction. In the present case, as already stated, the learned Rent Controller as also the B learned Additional District Judge have failed to take into consideration that on the earlier occasion the respondent expressly stated that after the sale the petitioner refused to vacate the house. He did not claim the existence of any relationship of landlord and tenant between the parties and how could he in the subsequent application take a somersault and take up a contradictory plea that after the sale the possession of the petitioner was that of a tenant and that he had paid rent for the month of April, 1978. In fact, the learned Courts below have misdirected themselves in this behalf. In Muhammad Abdullah and another v. Syed Muhammad Raza Zaidi and another 1982 C L C 1201, it has been held that High Court can interfere with acts done or proceedings undertaken by Tribunals in cases of no evidence, bad faith, misdirection or failure to follow judicial procedure. Such shortcomings are to be treated as acts done without lawful authority. It was also held that where an inferior tribunal has failed to determine the question of law and fact arising before it, in its true perspective and has failed to consider all material factors and circumstances established on record, the resultant order was liable to stand vitiated. In the present case also, the Controller as also the learned Additional District Judge have failed to consider the effect of the earlier litigation and have misdirected themselves to hold that the relationship of landlord and tenant exists between the parties.

16. In this view of the matter, the under consideration Writ Petition is allowed and the impugned orders are held to be without lawful authority and of no legal effect. There shall, however, be no order as to costs. A.A./N‑39/L Petition accepted.