1987 PLP 1453 (SCMR)

NASIM HASAN SHAH, J.‑‑The appellant filed an application under Section 13 of the Urban Rent Restriction Ordinance, 1959 seeking ejectment of the respondent on the grounds of default in payment of rent and damage to the property. The application was contested by the respondent (Sheikh Salahuddin) who denied the existence of any relationship of landlord and tenant between the parties. Since there was no relationship of landlord and tenant between the parties the question of default in payment of rent and causing damage to the property did not arise. The Rent Controller, therefore, framed a preliminary issues as follows:‑ "Whether the relationship of landlord and tenant exists between the parties and for that matter this Court has the jurisdiction to try the application?" The learned Rent Controller after appraising all the relevant evidence on the record came to the conclusion that the relationship of landlord and tenant did exist between the parties and he, therefore, decided the above issue in favour of the landlord and, accordingly, passed an order of ejectment on 20‑7‑1976 against the respondent. The above order of the Rent Controller was challenged by Sheikh Salahuddin (respondent) by filing an appeal in the Court of the District Judge, Lahore. This appeal was heard by an Additional District Judge, who by his order dated 21‑1‑1979, upheld the finding of the learned Rent Controller as to the existence of relationship of the landlord and tenant between the parties and dismissed the appeal. Feeling dissatisfied, Sheikh Salahuddin (respondent) filed a second appeal before the Lahore High Court. This was heard by a learned Single Judge of the said Court who, in a very long and laborious order, upset the findings of the fact recorded by the two Courts below and held that the relationship of landlord and tenant between the parties was not established on the basis of the evidence on record. Accordingly, he allowed the second appeal vide judgment dated 8‑4‑1980. Leave to appeal was granted by this Court to consider whether in view of the law laid down by the Federal Court of Pakistan in Abdul Majid & others v . Khalil Ahmad P L D 1955 FC

38. The High Court was justified in disturbing the findings of fact recorded by the trial Court which were affirmed by the Appellate Court on the question of the existence of relationship of landlord and tenant between the parties. We have heard the learned counsel for both the parties at some length and have also perused the relevant evidence with their assistance. After having heard the learned counsel and the perusal of the evidence on record we are of the opinion that the dictum laid down in the case of Abdul Majid and others v. Khalil Ahmad P L D 1955 FC 38 that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and in‑excusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits", is attracted in the facts and circumstances of the present case, especially when neither any misreading nor any omission to read any relevant piece of evidence on the part of the learned trial Court and the Additional District Judge have been shown to us. The learned High Court has merely re‑appraised the evidence and come to a conclusion different from that recorded by the two Courts below on the basis of the same evidence which had already been appraised by the aforesaid Courts. However, as pointed out by this Court in Abdul Majid's case P L D 1955 FC 38 that "a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal". This appeal, therefore, must succeed and it is hereby allowed with costs. Appeal allowed. S.Q./Y‑4/S