1995 PLP 322 (CLC)

It may be noted that no issue was framed by the learned Rent Controller with regard to the averment of the petitioner that respondent No. 1 had caused damage and materially affected the utility of the rented premises. In this context, the learned counsel for respondent No. 1 had argued that material issues had not been framed, which misled the respondent to produce his defence. In these circumstances, the learned Additional District Judge framed the following additional issue:‑‑ "Whether the tenant has committed such acts which have impaired materially the value and utility of the demised property." After framing the above additional issue, vide order dated 13‑7‑1994 the learned Additional District Judge f‑iced the case for evidence of the parties, if any, on 26‑7‑1994. On the next date, i.e. 26‑7‑1994 joint request was made for adjournment on behalf of the parties and consequently, the appeal was adjourned to 5‑9‑1994 for additional evidence of the parties, if any, failing which arguments were to be heard. It is against the order dated 13‑7‑1994 that the present Constitutional petition has been filed by the landlord.

3. The precise contention raised by the learned counsel for the petitioner is that the learned appellate authority after framing the additional issue should have decided the same on the basis of the evidence which was already on record, which according to the learned counsel was sufficient to decide the issue. According to him, there was no justification for the learned Additional District Judge to have called upon the parties to lead evidence with regard to the additional issue. He submits that his case is covered by the provisions of Order 41, Rule 24, C.P.C. which enjoins the Court to decide the resettled issue on the basis of the evidence already on record.

4. Contrary to the above, learned counsel for respondent No. 1 submits that the controversy as to whether any damage impairing the utility of the premises had been caused or not, was not put into issue, and therefore, specific evidence was not led on this point, although there was general reference in the evidence on the question of damage caused to the premises. He, however, contends that the evidence on record was not sufficient enough to give a definite finding on the question of damage caused to the demised premises and, therefore, the order passed by the learned Additional District Judge calling upon the parties to lead evidence on the newly framed issue, did not suffer from any illegality justifying interference by this Court. ‑

5. Learned counsel for the petitioner has placed reliance on Dr. Bashir Ahmad Khan and 2 others v. Mehr Din (1985 SCMR 1), in support of the aforesaid contention raised by him. This case is dearly distinguishable, because it has different facts in that the learned Appellate Court after framing the additional issues had remanded the suit to the trial Court for decision on the additional issues. The learned Supreme Court after observing that the additional issues were neither happily worded nor correctly framed according to the pleadings of the parties, made the following observations:‑‑ "Nonetheless, we find that throughout the trial the parties were fully cognisant of this issue which really arose out of the pleadings of the parties and they had also adduced their evidence in respect thereof. So, that in our considered opinion no prejudice was done to any of the parties in the failure of the Court to frame a proper issue in the suit arising out of the pleadings of the parties." Therefore, it is evident that in the precedent case the issue framed was not proper and the evidence led thereon, after the remand was found to be sufficient to decide the real issue between the parties. Learned counsel for the petitioner has also relied on Rahim Bakhsh Awan v. Ijaz Mehmood (PLD 1990 Lahpre 37). This case is also not relevant. Here the appellate Court had remanded the case for trial on issue which did not arise out of the pleadings. It was held that where the Appellate Court was of the view that the trial Court failed to frame the issue or that issues already framed were defective, it could proceed under the provisions of Order 41, Rule 25, C.P.C. to amend the issues and decide the same itself.

6. In Faheem & Company and another v. National Bank of Pakistan Karachi and 5 others (PLD 1975 Karachi 1032), a learned Division Bench held that the appellate Court was not bound to remand the case for recording of the evidence and passing orders. It was ,fully empowered to record the evidence and decide the matter itself. It has been held by the learned Supreme Court of Pakistan in Messrs Faheem & Company and another v. National Bank of Pakistan and 5 others (1976 SCMR 100) that an appellate Court may after framing an issue, record the evidence itself. The learned Supreme Court held as under:‑‑ "Any such plea is plainly inconsistent with the provision of section 107(1)(d), C.P.C. which expressly empowers the appellate Court `to take additional evidence or to require such evidence to be taken'. Therefore, it is open to the appellate Court either to record the additional evidence itself or to remit the case to the trial Court."

7. The question raised can be examined from another angle also. The Punjab Urban Rent Restriction Ordinance, confers discretionary jurisdiction on the appellate authority for making such further inquiry as it thinks fit. Subsection (7) of section 15 of the Ordinance, as amended by Punjab Act III of .1991, reads as follows:‑‑ "(7) Unless it dismissed the appeal in limine, the appellate authority or the High Court, as the case may be, 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 if necessary after making such further inquiry as it thinks fit." The learned appellate authority, after framing the additional issue on the petitioner's own concession, afforded opportunity to the parties to lead further evidence, if any. This was done in lawful exercise of its jurisdiction by the appellate authority,. under section 15(7) of the Ordinance. Whether the evidence already on record was sufficient or not and whether further inquiry was justified? or not, fell within the exclusive discretion of the? appellate authority. So far as High Court is concerned, while exercising its jurisdiction under Article 199 of the Constitution, it does not sit as a Court of appeal. It cannot go into such questions. It can possibly interfere in such like cases, only if the Court or tribunal below wrongly assumes that there is evidence on record while actually there is none or where it assumes that there is no evidence, while actually there is evidence on record, or where it otherwise acts fancifully in the treatment of such question.

8. In view of what has been discussed above, the order of the learned Additional District Judge is manifestly correct and proper. Instead of remanding the case to the Rent Controller for recording the evidence on the newly‑added issue, he himself decided to record? the evidence, obviously for the reason that the rent matter may be expeditiously decided. The landlord should have been more than happy, because this order had the effect of ending the prolongation of the case. The impugned order does‑ not suffer from any jurisdictional error. It confirm in its validity not only on the touchstone of the provisions of C.P.C. but also those of the Punjab Urban Rent Restriction Ordinance itself. Resultantly, the writ petition being without merits is hereby dismissed in limine. AA./A‑728/L?????????????????????????????????????????????????????????????? ??????????? Petition dismissed.