P L D 2011 High Court (AJ&K) 17 (PLP)

GHULAM MUSTAFA MUGHAL, C J.

Through this petition filed under section 44 of the Azad Jammu and Kahsmir Interim Constitution Act, 1974 judgment and order passed by Additional District Judge, Poonch, respondent No.1 herein, on 15-5-2010 has been challenged for having been passed without lawful authority. Brief facts of the case are that respondent No.2, herein, rented out his shops situated at Supply Bazar Rawalakot in 1985-86 to the petitions: herein, who filed an application under section 4 of the AJ&K Rent Restriction Act, 1986 before the Rent Controller, Rawalakot on 29-4-2006 for determination of fair rent of the shops. After 3 weeks respondent No.2 herein, also filed an application in the same Court for ejectment of the petitioner from the said shops on the ground that respondent No.2 herein, without prior consent of the petitioner has sublet the shops and the same are required to him for his personal use. After receiving objections from the parties, the applications were consolidated and issues were framed. The parties were allowed an opportunity for leading evidence in support of their, respective petitions. At the conclusion of the proceedings, the learned Senior Civil Judge/Rent Controller, Rawalakot vide his judgment and order dated 28-10-2009 accepted the application for ejectment and disposed of the other application. An appeal was filed before the Appellate Authority, which was dismissed vide judgment dated 15-5-2010. The order passed by the Appellate Authority has been challenged on the ground that respondent No.1 herein, has not been designated as Appellate Authority under the AJ&K Rent Restriction Act, 1986, hence, has no jurisdiction to hear and determine the appeals against the judgments of the Rent Controller, thus, the order passed by him in the instant case is without jurisdictional competence and is a nullity in the eye of law. It was further alleged that respondent No.1 has earlier expressed himself while deciding an application for interim relief on 25-8-2006, therefore, by deciding this appeal he has acted as Judge in his own cause hence, the judgment is violative of the principle of natural justice. It is further stated that the question of default has not been attended by respondent No.1 in light of the record and the evidence has also not been appreciated properly and the conclusion drawn from the evidence is erroneous, illegal and violative of the settled principle of law. Respondent No.1 has been proceeded ex parte whereas respondent No.2 in his comments/written statement has refuted the stand taken in the petition and pleaded that the petitioner is defaulter since 2004 and has also sublet the shops without prior consent of the respondent, hence, the Rent Controller as well as the Additional District Judge has rightly disposed of the controversy on the basis of the evidence brought on the record: It is further alleged that both the orders are based on evidence which was properly appreciated, hence, the decision is immune from interference in writ jurisdiction. Barrister Humayyun Nawaz Khan, the learned Advocate for the petitioner inter alia, contended that the application for ejectment, filed on behalf of respondent No.2 herein, was mala fide because the same has been filed after 3"weeks of filing the application by the petitioner herein, for determination of the fair rent under section 4 of the AJ&K Rent Restriction Act, 1986. He argued that the order passed by the Rent Controller as well- as the Appellate Authority is illegal because neither the Rent Controller nor the Appellate Authority as disposed of the application for determination of the fair rent. He further argued that the judgment passed by the Additional District Judge is coram non judice because he was not designated as' appellate Authority under the provisions contained in the AJ&K Rent Restriction Act, 1986. The learned Advocate submitted that even otherwise, the learned Additional District Judge cannot act as Judge in his own cause because earlier he has disposed of an application regarding the interim relief vide his order dated 25-8-2006, therefore, he cannot hear the appeal. The learned Advocate contended that even the respondent has not proved that the shops were required to him for establishing his own business rather he wants to rent out the same to some other person. In support of his submission the learned Advocate placed reliance on PLD 1965 SC 459, PLD 1983 SC (AJ&K) 204 and 1997 CLC 1830. Mr. Muhammad Hanif Minhas, the learned Advocate for the respondents contended that the Rent Controller as well as the Appellate Authority is a .Special Tribunal constituted and appointed under the special law and its findings are based on evidence, which cannot be disturbed in writ jurisdiction. He further contended that no misreading or non-reading of evidence has been pointed out by the learned Advocate for the petitioner, therefore, the petition cannot be entertained for appraisal or reappraisal of the question of facts. He argued that the appeal was made over to the Additional District Judge, who is designated Authority by virtue of the provisions contained in the AJ&K Rent Restriction Act, 1986 and the petitioner has appeared before the said authority without any objection and protest and after its decision against him he cannot take an inconsistent position. The learned Advocate further contended that the authorities referred to by the learned Advocate for the petitioner have no relevancy so far the facts and legal position of the case in hand is concerned. The learned Advocate submitted that a special remedy is provided by the AJ&K Rent Restriction Act, 1986 and the petitioner is litigating from 29-4-2006. He argued that in an earlier round of litigation the matter was disposed of on appeal of the petitioner herein, by the same Additional District Judge, hence, after receiving benefit from the Court he cannot blow both, hot and cold in the same breath. I have heard the learned Advocates for the parties and gone through the record of the case. So far as the contention of Barrister Humayun Nawaz Khan, the learned Advocate for the petitioner that Additional District Judge was not vested with the authority to hear and dispose of the appeal against the order passed by the Rent Controller is concerned, the same is devoid of any force and the authority relied upon by him in this regard is also not applicable. Under section 15(1) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (Ordinance, VI of 1959) the Government has to confer the power of Appellate Authority by a notification on any District Judge for the purpose of that Ordinance, therefore, without any formal notification or designation of the Appellate Authority the District Judge was rightly held incompetent to hear the appeals as a principal Civil Court of the District. In case in hand, section 18 of the AJ&K Rent Restriction Act, 1986 is attracted which reads as under:-- "Appeal.--(1) Any party aggrieved by an order of the Controller finally disposing of an application made under this Act may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated: Provided that no appeal shall lie against an order made by a Controller under subsection (6) of S.14 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due: Provided further that no appeal shall lie from an interlocutory order passed by the Controller. (2) On such appeal being preferred, the District Judge may hear it himself or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated. (3) The District Judge may recall an appeal made over by him to an Additional District Judge and either hear it himself or refer it for disposal of another Additional District Judge having jurisdiction as provided in subsection (2). (4) .. (5) . Section 18 reproduced hereinabove, provides a complete scheme for hearing and disposal of appeals by conferring powers on the District Judges and Additional District Judges, therefore; no notification in this regard is required. The Act itself has appointed District Judges as Appellate Authority having jurisdiction over the area where building or rented property in relation to which the order is passed, is situated. Under subsection (2) reproduced hereinabove, the appeal can be heard by the District Judge himself or he can refer it for disposal to an Additional District Judge. The only embargo is that the Additional District Judge to whom appeal is entrusted should have jurisdiction over the subject-matter of dispute i.e. building or rented land should be situated in its respective jurisdiction and the appeal should have been entrusted to such Additional District Judge. This provision is enacted in line with section 24 of the C.P.C, which empowers the District Judge to make over any suit and case and recall the same for hearing and disposal of the same by himself and again refer the same for disposal to any other Court of competent jurisdiction. In this case, as is evident from the order under challenge, the appeal was filed before the learned District Judge who made over the same to the learned Additional District Judge for disposal. The other authority relied upon by Barrister Humayyun Nawaz Khan, the learned Advocate for the petitioner is also not attracted in the present case. In that case the revisional jurisdiction was exercised by this Court against an order passed by the Rent Controller. The apex Court observed that as the Rent Controller as well as the Appellate Authority is special forum, created under the Rent Restriction Act and the Civil Procedure Code is not applicable to the proceedings before the Rent Controller, therefore, High Court was not vested with supervisory or revisional jurisdiction to entertain the revision or revise the judgment/order passed by the Rent Controller or an Appellate Authority. In Khalid Rauf Mir's case [1997 CLC 1830] the apex Court observed that if an order of a Special Tribunal or forum is passed on no evidence or it suffers from a patent mistake or the order has not been passed keeping in view the relevant provisions of law, that is open to review in constitutional jurisdiction of the High Court. It was further observed that a bare statement of the landlord to the effect that he needed shops for running his own business did not prove the requirements of law. In the circumstances of the present case, I am of the view that there is no need to revisit the evidence produced by the parties in support of their respective stands because the Rent Controller who has rejected the application filed on behalf of M. Anayat Khan and granted the application of Sardar M. Altaf, respondent No.2 herein, has not been impleaded in line of the respondents. Though, the order has been merged in the order of Additional District Judge but the fact remains that an authority or public functionary, who has passed the order against a person, is necessary party and in absence whereof no writ can be issued. In a case titled Lt. (R) Muhammad Shabir and 6 others's case [2003 YLR 346] the petition was dismissed on the ground that the SDM, who made the original report regarding the shifting of the School after visiting the spot in pursuance of which Government notification was issued, was not impleaded in line of the respondents. A further reference can be made to Mirza Lal Hussain v. Custodian and others (1992 SCR 214), Muhammad Ashraf v. Azad Government and others (PLD 1985 SC (AJK) 102) and Muhammad Resham Khan v. Chairman Inspection Team and others 1990 SC 1355(sic). The contention of the learned Advocate for the petitioner that the application of the petitioner for determination of the fair rent has not been disposed of, is also misconceived because a consolidated order has been passed on both the applications and mere missing some words from a judicial order, which is otherwise liable to be maintained, does not persuade me to remand the case for fresh decision. In view of above, finding no substance, this petition is dismissed. H.B.T./4/AJ&K Petition dismisse