1986 PLP 422 (CLC)

(ii) Whether the opponent No.l has sublet the premises to opponent No. 2? (iii) Whether the applicant is in the habit of enhancing the rent? (iv) Whether the opponent have damaged the shop and have impaired the use and utility of the said shop? (v) What should the order be? The petitioner examined her attorney and husband in support of the application. In rebuttal respondents examined themselves. The learned respondent No.l, on the basis of the evidence adduced by the parties and after taking into consideration the arguments of the learned counsel for the parties, decided issue No.l in the negative, issue No.2 in the affirmative, issue No.3 against the respondents and allowed the eviction application on the ground of subletting only, vide order, dated 28‑7‑1981. The respondents No. 3 and 4 being aggrieved against the order, dated 28‑7‑1981 of the Rent Controller, Cantonment Area, Hyderabad, filed Rent Civil Appeal No. 183 of 1981 in the Court of District Judge, Hyderabad. The petitioner also filed objections under Order XL, rule 22, C.P.C. before the respondent No.l. The learned District Judge after taking into consideration the arguments of the learned counsel for the parties, allowed the appeal filed by the respondents No. 3 and 4 and dismissed the objections filed by the petitioner, vide judgment, dated 18‑7‑1982. The petitioner being aggrieved against the judgment, dated 18‑5‑1982 has filed this petition on the grounds disclosed in the memo. of petition. Mr. Abdul Qadir Halepoa the learned counsel for the petitioner has contended that both the respondents Nos. 1 and 2 acted without lawful authority in holding that in the absence of the personal evidence of the petitioner, she was not entitled to an order of eviction against the respondents No. 3 and 4 on the ground of personal use. The judgment and the order of the respondents No. 1 and 2 are liable to be quashed as the same were passed without applying judicial mind to all the relevant circumstances emerging from the record. On the other hand Mr. Naimatullah Qureshi the learned counsel for the respondents Nos. 3 and 4 has submitted that the constitutional petition is not maintainable and that the finding of the respondents Nos. 1 and 2 are in accord with the evidence on record and the finding of the fact recorded by them was not liable to be interested within exercise of Constitutional jurisdiction. He relied on the case of Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C

139. In this case the learned Judges of the Supreme Court hold that supervisory jurisdiction of the High Court under Article 98(2)(a)(ii) of 1962 Constitution (or for that matter under Article 199 (1)(a)(ii) of 1973 Constitution (or for that matter under Article 9 of Provisional Constitution Order of 1981), is assimilable to its jurisdiction under section 115, C.P.C. except in two important respects; first the former jurisdiction being a creation of the Constitution stands in a higher pedestal than that under section 115, C.P.C., second, the former jurisdiction has a wider reach than the jurisdiction under section 115, C.P.C., which is confined to subordinate Courts. But the aforesaid Constitution provision is not designed to empower the High Court to interfere with the decision of a Court or a Tribunal of inferior jurisdiction merely because in its opinion the decision is wrong as in that case High Courts' Constitutional jurisdiction will no longer remain distinguishable from the jurisdiction exercisable in a full‑fledged appeal. However, at the same time it is also well‑established that the supervisory jurisdiction extends not only to see that the inferior tribunals act within the sphere allotted to them but also to see that they act within jurisdiction and observe law. In the case of Rahim Shah v. Chief Election Commissioner of Pakistan and another P L D 1973 S C 24, a judgment delivered by five learned Judges of the Supreme Court observed that the scope of interference in the High Court is limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court may stay its hands and will not substitute its own findings for the findings recorded by the Tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure etc. are treated as acts done without lawful authority and intrude the act done or proceeding undertaken by the Tribunal on this ground. In the case of Employees' Welfare Union v. R.B. Industries Ltd., Karachi and another P L D 1976 Kar. ,397 the Hon'ble Judges of the Division Bench held as follows:‑

"the terms, without lawful authority and of no legal effect are expressions of art and refer to jurisdictional defects as distinct from a mere erroneous decision whether on a question of fact or even a law. This is a statement of the principle of law as contained in Article 199 of the Constitution. But this is not the whole law. There are certain exceptions to this principle. If a finding of fact or of a law goes to the root of jurisdiction and such finding is erroneous on the face of it, the revising Court can go into the question of finding of fact and such errors of law. This view is amply supported by R.V. Northumberland Compensation Appeal Tribunal, ex parte Shaw 1952 1 K B 338 and R.V. Medical Appeal Tribunal ex parte Gilmore 1957 1 All ER

796. In the second ruling, Denning L.J. observed that where statute gives finality to the findings of an Administrative Tribunal even then an error on the face of record can be corrected through certiorari. Full Court authority of our own Supreme Court on the subject is contained in Rehim Shah's case P L D 1973 S C

24. The pertinent observation in this case is as follows: "High Court will interfere if the act done or the proceedings undertaken is in violation of law or any established principle of law. The term 'law' is not confined to 'statute' and in holding the inquiry the superior Courts are not restricted to an examination of record of the case. The Court may even record evidence to determine the legality of the act done or the proceedings undertaken." "The law on the subject is that if an error of law is patent on record the superior Courts always have the authority to correct it. In the present case the learned Tribunal evidently did not take into consideration the effect of explanation to section

8. This omission on its part would amount to an error of law." In the case of Habib Khan v. Additional Settlement Commissioner, Vlultan and others 1980 S C M R 84, the learned judges of Supreme Court held as follows:‑ "The finding that Tungal had not obtained the land allotted to him by fraud or misrepresentation is a finding of fact which was within the exclusive jurisdiction of the Additional Settlement Commissioner (Land). Therefore, the petitioner could have challenged the finding successfully in the limited Constitutional jurisdiction of the High Court only if had succeeded in providing that the finding against him by the Additional Settlement Commissioner (Land) was not based on any evidence or was based on a total misreading of evidence." In the case of Swati Qaum through Bacha Gul and others v. Painda Khel Qaum and others 1981 S C M R 318, the Hon'ble Supreme Court held as follows:‑

"The learned Judges in the High Court were in error in thinking that the writ petition moved before them was liable to be dismissed on the simple ground that the revisional Court had the jurisdiction to decide the question that the appeal before the Additional Commissioner, Malakand, was barred by time. Even if the learned Deputy Secretary had the jurisdiction to decide this question, this jurisdiction had to be exercised in a judicious manner on the basis of the facts having a bearing on the question of limitation, and not in utter disregard of the same. Any decision taken by a competent authority by ignoring or misreading material evidence is liable to be quashed by the High Court in the exercise of its powers of judicial review". In the case of Muhammad Sharif and another v . Muhammad Afzal Sonail etc. PLD 1981 S C 246, the Hon'ble Supreme Court held as follows: ‑

"In our view the jurisdiction of the High Court to interfere in matters of the kind involved in the present case is a very limited one and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the law relating thereto as laid down by the superior Courts." Keeping the above‑stated principles in view I find that the finding on the question of bona fide personal need on the basis of assumptions and conjectures. The bona fide of personal requirement was doubted by the respondent. No.2 as the petitioner did not appear in the witness- box to depose and establish that the premises required by her for her own personal bona fide use. I find that the respondent No.l affirmed the finding on the question of bona fide personal need on the basis of assumptions and conjectures. The bona fide of personal requirement was doubted by the respondent No.l as the petitioner was in the habit of enhancing rent frequently, that is, the original rent of Rs.225 in 1972 was enhanced to Rs.410 upto 1979. The bona fide of personal requirement was also doubted that there was no evidence on record that she actually required the shop for starting tailoring business in it and the word of the husband could not be believed. Instead of going to the realism of conjectures the appellate Court should have gone into the reasons mentioned in the deposition of the husband of the petitioner. He in his statement stated that the petitioner required the shop in question for her personal use. The assertion or claim on oath by the husband of the petitioner that she required the shop in question for her personal use, should be accepted by the Controller as bona fide if such claim or assertion is consistent with her averments in the application and not shaken in cross‑examination or disproved in rebuttal. See PLD 1976 Kar. 832, 1980 S C M R

772. It would, therefore, be seen that the evidence on record was not gone into by the learned Rent Controller and District Judge. It was incumbent upon the learned District Judge to go into the question of bona fide of the requirement in view of provisions of section 17 of the Cantonment Act 1963. The learned District Judge failed to determine the objections filed by the petitioner in accordance with the aforesaid provision and the evidence adduced by the parties on record. The disposal of appeals was, therefore, not legal. I have not gone into the question myself as in Constitutional jurisdiction. I am neither, called upon to decide the appeal myself nor can I substitute my opinion as against the opinion formed by the appellate Court. In the circumstances there is no alternative but I declare the judgment dated 18‑5‑1982 passed by the learned District Judge as having been passed without lawful authority and of no legal effect. The appeal, therefore, be considered to be pending before the District Judge and the same shall be decided afresh in accordance with law. This Constitutional petition is, therefore, accepted. In the circumstances of the case the parties will bear their own costs. H.B.T Petition accepted