1979 PLP 838 (CLC)

2. The tenant abandoned Issue No. (1). Issues (2) and (4) were found in his favour but as on Issue No. 3 he was found to have caused damage to the property, the Controller ordered his ejectment. In the first appeal, the finding on Issue No. 3 was reversed and the tenant was held not to have caused any damage to the shop but the appellate authority found Issue No. (4) against him and holding that the landlord required the shop in good faith for his personal use, maintained the order of ejectment. The tenant then filed a second appeal being S. A. O. No. 206 of 1966. During the pendency of that appeal, the landlord filed C. M. No. 5 of 1966 on 15‑10‑1966 alleging that the tenant had not deposited the rent in accordance with the directions of the Controller from June 1966 till the date of the application and praying that the stay order granted be vacated. The learned Single Judge, however, did not vacate the stay but directed the tenant to keep on depositing the rent with the Controller till the decision of the appeal. During the hearing of the. appeal, a prayer was made for striking out the defence of the tenant. It was also pointed out that further default in the deposit of rent had taken place for the months of March to June and August, 1967. The learned Judge, observing that since the landlord had not cared in his C. M. No. 5 of 1966 to place any document on the record to show that default in payment of rent had actually been committed and that since it was no stage for recording additional evidence with regard to the alleged further default, held that the default, if any, might bring a fresh cause for filing ejectment proceeding but had otherwise no force as a preliminary objection in the appeal. On the question of personal use, the learned Judge found that the appellate authority had not properly appreciated the evidence and had ignored material evidence on the record in giving its finding on the point, and after examining the evidence, reversed the finding of the appellate authority and set aside the order of ejectment passed against the tenant. Hence this appeal by the landlord.

3. A preliminary objection to the maintainability of the appeal was raised on the ground that it was not accompanied by a certificate as required under paragraph 10 of the Letters Patent. A certificate from the Single Judge declaring that the case was fit for appeal, is required by paragraph 10 of the Letters Patent when the decree or order impugned before the High'' Court had been made in the exercise of appellate jurisdiction by a Court "subject to the superintendence of the High Court". The appellate authority under the West Pakistan Urban Rent Restriction Ordinance had been a persona designata and not a Court until the amendment of section 15 on 11‑5‑1966 by Ordinance XXI of 1966. See Khidim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another (P L D 1‑965 S C 459) and Din Muhammad v. Hidayat Hussain (2). In the matter in band, the appellate authority had passed the R order on 5‑5‑1966, which means that at the time it had passed the order, it was a persona designata and not a Court. A certificate as contemplated in paragraph 10 of the Letters Patent was, therefore, not required. In view of this legal position, Raja A. Razzaq, learned counsel for the respondent, did not press the objection.

4. On merits, it was contended that the finding on Issue No. 4 being one of fact could not have been interfered with in the second appeal. Reliance was placed on Sh. Muhammad Ikhlas and others v. Muhammad Ismail (P L D 1963 S C 466) wherein a concurrent finding of fact was held not liable to interfer ence. A second appeal filed in the High Court is to be beard and determined as an appeal under section 100 of the Code of Civil Procedure. Under this section an appeal can lie on any of the following grounds, namely: ‑ "(a) the decision being contrary to law or to some usage having force of law ; (b) the decision having failed to determine some material issue of law or usage having the force of law ; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits." In Mst. Durga Choudhrani v. Jawahir Singh Choudhri (17 1 A 122) the Privy Council had observed that an erroneous finding of fact is a different thing from an error or defect in the procedure and that there is no jurisdiction to entertain a second appeal on the ground of such an erroneous finding, howsoever gross or inexcusable the error may seem to be. The same principle was affirmed in Abdul Majid v. Khalil Ahmad (P L D 1955 F C 38) wherein it had been `' pointed out 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. These judgments had been followed in Pathana v. Mst. Wasai and another (P L .D 1965 S 6134). The question of appreciation of evidence, oral or documentary, is, thus, essentially a question for the first appellate Court and a finding of fact does not become assailable in second appeal. But where the finding arrived at by the first appellate Court is not the result of a correct appreciation of the material 6 on the record, it is within the province of the High Court to disagree with that finding. An interference will be called for if the finding of fact is vitiated by misreading of evidence or omission to notice material evidence. See Ghulam Nab! v. John Muhammad (PLD1950BJ90) and Jumma Khan v. Allah Dlwaya (PLD1961BJ31). The same is true where the first appellate Court has not applied its mind to evidence in the case in a judicial manner and has recorded a finding perverse to the material on record. An interference would be justified where the first appellate Court had reversed a finding of fact arrived at by the Court C of first instance without properly considering the material facts on which the first Court's finding is based.

5. In the matter in hand, the learned Single Judge had found that the appellate authority had not properly appreciated the evidence and had ignored material evidence on the record in giving its finding and that the authority was also wrong in saying that the assertion of the landlord that he wanted the shop for his personal use was not seriously challenged by the tenant. The material on the record, which we have perused, does support the observation of the learned Single Judge. The landlord in his ejectment a application, on the question of personal use, had only stated: This had bean controverted by the tenant in the following words in his written statement Munawar Hussain (the landlord's) case, as made out in his evidence was: On the other side, the evidence led was that the adjoining shop was in fact lying vacant. It is significant to note that the two witnesses produced by the landlord, namely, Dr. Muhammad Sadiq (P. W. 1) and Hassam‑ud Din (P. W. 2.), who were also related to him, are supporting the tenant's plea. Dr. Muhammad Sadiq stated Hassam‑ud‑Din stated ; In his cross‑examination he further stated ; Hassam-ud-Din stated: In the cross-examination he furture stated: The assertion that the other chop was actually in use, that it was not adequate for the business of the landlord, or that the landlord was in a position to run the business, was thus not sufficiently established. The Controller's finding that the landlord had failed to substantiate the issue was, therefore, in accord with the evidence and its reversal was not merited. In such a situation, the High Court had jurisdiction to interfere and had rightly interfered under section 100 of the Code of Civil Procedure.

6. The next point urged was that as the tenant was guilty of non compliance of the order of deposit of rent, the learned Single Judge had erred in not striking out his defence. It appears that the tenant in big second appeal moved an application (C. M. 2 of 1966) for a stay of the order of ejectment passed against him. He followed by moving another application (C. M. 3 of 19661 with the same prayer. On this a direction for maintenance of status qua was made on 14‑7‑1966. The landlord then moved C. M. 4 of 1966 seeking the recall of the status quo order but the application was rejected on 1 y‑1966. He later filed C. M. 5 of 1966 dated 15‑10‑1966 again praying that "the stay order granted in the above‑mentioned S. A. O. may kindly be vacated". The basis for the prayer was alleged default on the part of the tenant "to comply with the order passed under section 13(6)" by the Controller in the matter of rent from June 1966 till the date of the application. When the application came up for hearing in the presence of the counsel for the parties on 11‑1‑1967, the learned Judge, observing that an application for vacation of the stay order had already been rejected and noting that the allegation of failure to deposit rent was denied by the other 1 side, disposed of the application by giving a direction to the tenant to "keep on depositing the rent in the Court of the Rent Controller till the decision of this appeal". It was submitted before us that the tenant had deposited rent for the period from May 1965 to February 1967 on 16‑3‑1967 and thus had defaulted in the deposit of rent for all these months. It was pointed out that even if the direction to deposit rent made on 11‑1‑1967 was to be kept in view, the tenant was guilty of non‑compliance of the same, too, for the months of December 1966, January 1967 and February 1967 and as such liable to have his defence struck out. Learned counsel for the tenant pointed out that as the direction to deposit rent had been given in the context of grant of stay of the ejectment order, the tenant was in the event of non‑compliance of the order liable only to have the stay vacated and not to the forfeiture of his defence. He referred to the wording of the Explanation to section 15(4) of the Ordinance to argue that the law intended that the appeal was to be heard and decided on merits and not by striking out defence. He elaborated by saying that where a tenant in an appeal against an order striking out his defence, defaults against during the pendency of the appeal in the deposit of rent, the law did not intend that his defence be struck out a second time without adverting to the merits of his appeal, for, that would not mean that the appeal had been "heard and determined", as envisaged under section 15 of the Ordinance. He went on to urge that in fact the power under sec tion 13(6) was not available to the High Court.

7. There appears to be some conflict in the case‑law‑ regarding the availability of section 13(6) to the appellate Courts. The relevant provision of section 15 does not expressly vest the appellate Courts with such powers. On the other hand, it says in respect of the first appeal "(3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and in respect of the second appeal "An appeal under the subsection shall be heard and determined as an appeal . . . from the appellate order under section i00 of the said Code (Code of Civil Procedure) , . . . . In Roshan Din. S. M. Badruddin (P L D 1969 Kar. 546) a Division Bench held that the order made by the Controller under section 13(6) cannot be invoked during the appellate proceeding to strike out defence but the appellate authority can make a fresh order of deposit under section 13(6). This view, however did not prevail with another Division Bench in Abdul Shakoor v. Kay Khusru and 6 others (P L D 1970 Kar. 599) which held that the appellate authority was not empowered to strike off the defence of a tenant for his failure to furnish security and that in case the tenant fails to comply with the order, then the appellate authority would be obliged to vacate the stay order and dismiss the stay application. It was further observed ‑ By not empowering the Appellate Authority to strike off the defence of a tenant, for his failure to furnish security, the Legislature intended not to deprive him of his right of appeal against the eviction order of the Controller. This omission on the part of the Legislature appears to be deliberate so as to prevent the Controller from abusing his jurisdiction under section 13(6) of the Ordinance by striking off the defence of a tenant summarily for his failure to deposit the tentative rent which may have been fixed at a wholly arbitrary rate." The ruling, however, does not take into consideration the situation where the tenant is in default in deposit of rent ordered by the appellate Court in the landlord's appeal in which situation there is no stay which can be vacated. This authority was, however, not followed in Ghulam Yasin v. Bakhshomal (P L D 1973 Kar. 228), Abdul Qayum Ansari .v. Salahuddin Qureshi (P L D 1974 Kar. 10) both decided by a Single Bench. The learned Judge held that the appellate authority as well as the High Court in appeals under section 15 are competent to exercise powers conferred on the Controller under section 13(6) and can order deposit of rent pending appeal and strike off defence for non=compliance of its own order. The learned Judge expressed the view that section 107 (2) of the Code of Civil Procedure was not excluded expressly or by necessary intendment because the provision of section 107(2) of the Code was not inconsistent with the provision of the Ordinance. It was further held that the wide powers under Order XLI, rule

33. C. P. C. were also conferred on the appellate Courts. The learned Judge, however, agreed that the appellate authority was not competent to strike off defence on basis of the Controller's order. But this authority was again dissented from by another Single Bench in Muhammad Ishaq v. Abdul Haque and another (P L D 1978 Kar. 898) in which, relying upon the afore‑cited case of Abdul Shakoor, it was held that the tenant's defence cannot be struck out in appeal but the stay only can be vacated. There appears to be no such conflict in the Lahore High Court after a Full Bench decided the point in Muhammad Hussain and another v. Mehroj Din and another (P L D 1965 Lah. 179) expressing the view that by virtue of section 107(2) and Order XLI, rule 33 of the C. P. C. the power under section 13(6) of the Ordinance was available to the Controller. The ruling had been given in the context of an appeal from the Controller's refusal to strike off defence. It was held that the Appellate Authority was competent to pass an order striking out the defence. The Supreme Court in Abdul Ghafoor v. Ahmad Kunhi (P L D 1969 S C 434), however, made it clear that the Controller's order made under section 13(6) is of interim and interlocutory nature and cannot be said to remain effective after the final determination of the proceedings in which it is made. But the Court, it seems, doubted the competence of the appellate Courts to order the striking out of the defence. It observed "It is worthy of note that the penalties provided under subsection (6) of section 13 for non‑compliance of an order passed thereunder are that if the tenant is the petitioner his application is dismissed and if he is the respondent then his defence is struck off and in either case the landlord is put into possession of the property without taking any further proceedings in the case. Such an order in my view can only be passed by the original Court. Their Lordships, however, did not consider it necessary, in the circumstances of that case, to go into the question whether the appellate authority could pass a fresh order under section 13(6) of the Ordinance in an appeal. But in Mah Gut and another v. Nazar Abbas alias Muhammad Akram etc, C. P. S. L. A. No. 272 of 1978, where the tenant had sought appeal from an order passed by the High Court directing him to deposit arrears of and current monthly rent, the Supreme Court, however, dismissed the petition holding that the order was in the nature of a direction under section 13(6) and that the landlord "would prima facie be entitled to an order under section 13(6) of the Ordinance".

8. For the disposal of the instant appeal, however, it is not necessary to be drawn into the controversy whether the power under section 13(6) is or is not available to the High Court in appeal, for I find that the direction for deposit of rent had been given in the context of a stay of the Appellate Authority's order of ejectment. The landlord's very application (C. M. 5 of 1966), which had led to the making of the direction, had only sought that "the stay order granted in the above‑mentioned S. A. O may kindly be vacated". There had been no prayer for striking off the tenant's defence and the learned Single Judge's order dated 11‑1‑1967 clearly shows that he was not inclined to vacate the stay much less to strike out the defence or is there anything to suggest in that order that the learned Judge had intended that the tenant's defence would be struck off in the event of his non‑compliance of the direction. In such a situation, the only prope course to be adopted would be to vacate the stay. Such a view had been taken in the two' afore‑cited cases of Karachi, namely, Abdul Shakoor v. Kay Khusru Rahman rdeshediar and 6 others and Muham;na7 Ishaq v. Abdul Haque and another. The same view had been taken by the Supreme Court in S. Pin Liu v. Mrs Najma Kazmi (P L D 1978 S C 275) in the following words :‑ "Assuming for the sake of argument, therefore, that the petitioner had defaulted in depositing the monthly rent within time, even then the only order which could have been competently passed by the High Court would be to dismiss his application under Order XLI, rule 5, C. P. C. and not the one by which his defence was struck off and he was directed to hand over to respondent the vacant possession of the suit house."

9. The withdrawal of the stay order was, however, a matter in the discretion of the learned Single Judge, which discretion he exercised in favour of the tenant for the reasons already mentioned earlier in this judgment and no interference is called for.

10. The result is that the appeal fails and is accordingly dismissed though we leave the parties to bear their own costs. S. G. D. Appeal dismissed.