1987 PLP 796 (SCMR)

Date of hearing: 28th January, 1987. MIAN BURHANUDDIN KHAN, J.‑‑ This petition is directed against the judgment and order of the Lahore High Court dated 21‑12‑1986 passed in Writ Petition No. 3103 of 1984.

2. Leave is sought to appeal against the impugned judgment on the grounds that the learned High Court Judge had no authority to interfere with the decision of the Appellate Authority, made in the exercise of jurisdiction under the Punjab Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance); that a question of fact or a question of law cannot be devoid of legal effect or lawful authority simply on the ground that a superior Court does not agree with the finding of the Appellate Authority; that there is a marked distinction between the jurisdiction exercisable by the High Court under section 100, C.P. C. and that under Article 199 of the Constitution; that it is imperative that the distinction between the two kinds of jurisdiction, referred to above, be clearly and authoritatively explained; and that the intention of the Legislature to confer finality on the decision of the Appellate Authority is apparent from the fact that no appeal or revision has been provided by law against the decision, as envisaged by ,subsection (7) of section 15 of the Ordinance.

3. The facts giving rise to the petition briefly, are that shop bearing No. A/3‑E situated at Pak Mansion, Shah Alam Gate, Lahore was on rent with Ghulam Dastgir and his brother Ghulam Farid. The later withdrew from the business, and the shop, in question, was left in the exclusive possession of Ghulam Dastgir, petitioner who, alongwith his three sons, formed a partnership firm under the name and style of China Leather House.

4. The respondents filed ejectment petition under section 13 of the Ordinance for the eviction of the petitioner from the shop in dispute, on the ground of personal need of respondent No.2 namely, Muhammad Kabria Naveed. The petition was contested by the present petitioner, which was ultimately allowed by the learned Rent Controller per judgment dated 28‑5‑1983. The petitioner filed an appeal against the said order of the Rent Controller which was heard by the learned Additional District Judge, Lahore, who, vide his judgment dated 3‑6‑1984, allowed the appeal and dismissed the ejectment petition of the respondents. The respondents, then filed a writ petition in the Lahore High Court challenging the order of the learned Additional District Judge dated 3‑6‑1984. The learned High Court Judge, after hearing the writ petition allowed the same and restored the order of the learned Rent Controller.

5. Learned counsel for the petitioner contended that interference by the learned High Court Judge in the decision of the First Appellate Authority is in clear contravention of subsection (7) of section 15 of the Ordinance which reads as follows: "(7) The order of the Controller, subject to the result of appeal, if any, shall be 11nal and shall not be called in question, in any Court of law, including the High Court, by suit, appeal or otherwise. In support of his contention the learned counsel relied on P L D 1968 SC 185; 1970 S C M R 68 and 716; 1972 S C M R 47; P L D 1974 SC 139; 1975 S C M R 39; P L D 1981 SC 246 and 522, 1984 S C M R 1138 ,and 377; 1986 S C M R 522, 400 and 1987 S C M R

162. Summum bonum of the authorities, cited above, is that findings of fact cannot be interfered by High Court in its writ jurisdiction. Interference sought would be likely to work in aid of injustice‑‑Held, would bar issuance of a writ.

6. On going through the impugned judgment, we find that the learned High Court Judge held that considered analysis of the impugned judgment of the learned Additional District Judge reveals that the testimonly of the witnesses produced by the petitioners to prove the claim that petitioners Nos. 1 and 2 namely Muhammad Zakria Javed and Muhammad Kabria Naveed (respondents Nos. 1 and 2 herein) have separated their business from each other a few months prior to the filing of the eviction application, was merely hear say. In this connection, the learned Judge referred to the statements of two witnesses namely Mushtaq Ahmad P. W.1 and Muhammad Boota P. W.2 but it is noteworthy that in the examination‑in‑chief, both these witnesses categorically stated that they also worked as jewellers in Sarafa Bazar in shop adjacent to that of the respondents, and that a year back, some dispute arose between Muhammad Zakria Javed and Muhammad Kibria Naveed and thereafter Kibria Naveed left the joint business. This deposition by these two witnesses in their examination‑in‑chief is based on their personal knowledge and observation, and, therefore, cannot be termed as hear say. This part of the evidence has been completely taken out of consideration by the learned Additional District Judge, as observed in the impugned judgment. The learned High Court Judge proceeded further to examine the evidence produced b the parties, and held that the statement of the landlord himself, in the witness‑box, inspires confidence that he needed the rented premises for his personal use and that is sufficient to establish his bona fide when taken into consideration in the light of guarantee provided in subsection (4) of section 13 of the Ordinance. Reliance was placed on Muhammad Zaman v. Mahboob Elahi P L D 1981 Lah. 609 and Ghulam Mohyuddin v. Subs, Khan P L D 1977 Lah. 1094. Thereafter, the learned Judge proceeded to examine the question of judicial review in cases where no specific provision is made for the re‑assessment of the evidence. Reliance was placed on P L D 1981 SC 246 wherein it has been held that the jurisdiction of the High Court to interfere in the matters of ejectment of tenants under the Ordinance, is very limited and is confined to ascertain whether the District Judge (Appellate Authority) had not flouted the provision of relevant statute or had failed to follow the law relating thereto as laid down by the superior Courts. In continuation of this authority the learned Judge referred to Irshad Ahmad v. The Settlement Authority Punjab 1981 S C M R 758 wherein it was held that the High Court was not legally debarred from interfering with a finding of fact in exercise of power of judicial review if such finding was clearly against the material on the record.

7. We find that the arguments of the learned counsel for the respondents find support from the record. Statements of Mushtaq Ahmad P. W.1 and Muhammad Boota P. W.2 in their cross‑examination, disclosed the fact that some dispute arose between the two brothers namely Muhammad Zakria Javed and Muhammad Kibria Naveed followed by separation between the two from the joint business. To this extent their statements cannot be held as hear say evidence. This is what they observed personally, having their shop close to the shop of the said respondents Zakria and Kibria. It is but natural that the witnesses must be aware and that theirs' is the first hand opinion of the dispute between the abovenamed two brothers. However, the matter does not rest here. We find that Muhammad Zakria appeared as P. W. 4 and reiterated the facts given in the ejectments petition. He stated that he, alongwith his brother Muhammad Kibria were running Shaheen Jewellers shop. The partnership was terminated and he was paid Rs.50,000 as his share in the business. Later on, their relations intervened in the matter and brought about a compromise and since then Muhammad Kibria is jobless and that the shop, in dispute, is required for Kibria where he intends to run a General Merchant shop. This statement of facts has not been challenged or rebutted by any other evidence. We find the contentions raised by the learned counsel are not tenable and the petition has no merit. Leave refused. Petition dismissed. S.Q./G‑9/S Leave to appeal refused.