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Writ Petition No. 93 of 1957, decided on 10th October
, S. 15 (1) (5)‑Powers of Revisional Authority. Do not include powers of local inspection of premises‑Principle of natural justice cannot be extended to include power of local inspection --Local inspection meant for understanding, not to replace, evidence
Held, that the Revisional Authority under the Karachi Rent Restriction Act is a special tribunal created for the purposes of the Act and does not possess any inherent power as the Courts of law possess to do the right and to undo a wrong in the course of administration of justice
In order to find out what are the powers of the Revisional Authority one has to look to the statute itself and if no power of inspection is conferred oil it, it cannot be deemed to exist under the principle of Ex Debito Justitiae.
The Karachi Rent Restriction Act gives no such power to the Revisional Authority, and there is nothing to find that any such power vests in the Revisional Authority outside that enactment.
Further, that the principle of natural justice cannot be extended to the power of local inspection.
The very fact that the right of local inspection was con ferred on the Rent Controller by section 19 and not conferred on the Revisional Authority, showed that the Legislature did not consider it necessary to give this power to the Revisional Authority.
The power of local inspection is meant for understanding the evidence. Courts of law are not to make the result of inspection the foundation of their judgment which must be based upon evidence adduced by the parties and it does not entitle the Judges to put their views obtained by means of such inspection in place of evidence. The inspection is made for the purpose of better following and understanding the evidence adduced before them or to test its accuracy.
Abdul Baqi v. M. Fakhrul Islam and others A I R 1937 Pat. 333 ; Ram Chandra Rao v. Babu Narayan Lai and Babu. Nanhu Lai XXVII I L R Pat. 554 at p. 569; 58 I C 909 ; Amrat lal and others v. Land Acquisition Officer, Ahmedabad A I R 1945 Bom. 302 at p. 305 and Rai Chandra Banik and others v. Iswar Chandra Banik and others A I R 1952 Cal. 170 ref.
Where the Revisional Authority, as a result of his own inspection of the premises, reversed the order of the Rent Controller, the order in revision was set aside by the High Court by issue of a writ of certiorari.
, S. 15 (1) (5)‑Question of fact not normally open to Revisional Authority.
While an appellate authority is entitled to examine every question of fact or law arising out of an order, the Revisional Authority can interfere with an order of the Rent Controller on a question of law where the Rent Control Act or any of its provisions has been misconstrued, but normally the finding of fact cannot be interfered with unless there was no material on which such a finding could be based or the finding has been reached on a consideration of irrelevant or inadmissible matter or it is so perverse that no reasonable person could have reached that conclusion, or the finding was reached by an erroneous understanding of the law applicable to the matter. On the language of section 15 of the Karachi Rent Restriction Act, the Revisional Authority cannot disturb the finding of fact on any other grounds, otherwise there will be no distinc tion left between an appellate and revisional jurisdiction.
N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras P L D 1949 P C 26 and Azizuddin R. Faruqui v. Emperor A I R 1939 Sind 71 ref.
Kashi Ram Mansing v. Rajaram Dayaram Patil XIII B L R 879 ; Jagannath Deokaran Marwadi v. Dhondu Ananda Kunbi XXVI B L R 265 ; Hasan Malik v. Rasul Malik XV B L R 680 ; Babaji Kondaji Mali and others v. Bala Fakira Mehar and others A I R 1938 Bom. 159 and Sadhu Yesu v. Ganpat Lax man and another A I R 1956 Bom. 672 mentioned.
Hafiz Muhammad Yusuf v. The Custodian General, Evacuee Properties, New Delhi and others A I R 1954 All. 433 ; State of Bombay v. Chhaganlal Gangaram Lavar A 1 R 1955 Bom. 1 ; Jaswant Rao v. Kashi Nath Rao and others A I R 1925 All. 253; Ghissu v. Amir Alt Khan A I R 1926 All. 604 and S. Logasigamani Mudaliar and others v. L. R. K. Theogaraya Chetti A I R 1927 Mad. 427 distinguished.
, S. 15 (1) (5)‑Fresh inquiry outside scope of revision.
Held, that a fresh inquiry is outside the scope of revision under section 15, Karachi Rent Restriction Act (VIII of 1953).
The revisional authority under the Act was not entitled to make local inspection and to use it in setting aside the order of the Rent Controller.
Noman Bhai Dawood Bhai Vasi and others v. Mr. Justice Muhammad Bakhsh Memon P L D 1957 Kar. 160 at p. 164 ref.
‑Order based on facts not proved on record‑ Order liable to be set aside.
, S. 10 Act not retrospective‑Subletting of premises earlier than 1953 Whether incurs ejectment.
The provisions of the Karachi Rent Restriction Act, 1953, have no retrospective effect and it is very doubtful if the sub letting earlier than 1953 can be the ground of ejectment under section 10 of this enactment.
, ---S. 10 (2) (b)‑''Permission" includes both express and implied.
On the language of section 10 (2) (b) both express and implied permission can be considered to be included in the word "permission,"
(1952) 2 All England Law Reports 102 ref.
S. Y. Khawaja for Petitioner.
Sikander Beg Mirza, A. A. G. for Respondent No. 1.
Z. C. halliani for Respondent No. 2 (absent).
Riaz Ahmed for Respondent No. 3
--‑ This writ petition is directed against the order of Mr. Feroze Nana, Chief Judge, Small Causes Court, Karachi, dated 31st January 1957, in Revision Applica tion No. 168 of 1956, setting aside the order of the Rent Con troller of Karachi in respect of an application filed before him under section 10 of the Karachi Rent Restriction Act, 1953.
The petitioner is the tenant of respondent No. 3 of the ground floor of Kazi Noor Muhammad Building in Old Town Quarters, Kazi Noor Muhammad Street, Karachi. Respondent No. 3 filed an application for a certificate under section 10 (2), Karachi Rent Restriction Act. 1953, against the petitioner on the grounds of unauthorised additions and alterations and subletting of the premises in dispute. The learned Rent Con troller refused to grant the certificate by order dated 10th September 1956. A revision application was filed against this order and the same was accepted, and respondent No. 2 was directed to issue a certificate to respondent No. 3 for the ejectment of the petitioner from the premises in dispute.
The impugned order is challenged on the grounds that the learned Revisional Authority exceeded his jurisdiction in setting aside the finding of fact arrived at by the Rent Controller and there is an error of law apparent on the face of the record.
The learned counsel for the petitioner contended that the Revisional Authority under section 15 of the Karachi Rent Restriction Act has no power to make further enquiry. is not permitted to inspect the premises and cannot substitute his own finding of fact for that of the Rent Controller. Accord ing to the learned counsel the Revisional Authority is only entitled to satisfy himself as to the legality, propriety and regularity of the proceedings and this power does not extend to the correction of findings of facts.
The dispute between the parties was whether the addi tions and alterations in the premises were old and effected by respondent No. 3 or by the petitioner with the knowledge and consent of respondent No. 3. The Rent Controller's find ing was in favour of the petitioner but the Revisional Autho rity came to a different finding of fact. The learned counsel for the petitioner urged that the Revisional Authority upset the finding of fact on the impressions gathered from the inspection of the site and not on the ground permissible under the powers conferred on him. The learned counsel drew our attention to the following passage appearing in the impugned order :
"I have also inspected the premises in the presence of the parties and their advocates and there is no doubt in my mind after my inspection that the finding of the learned Rent Controller in respect of the constructions and alterations shown in red in the plan produced by the applicant as an accompaniment of his original application dated 19th Febru ary 1955 cannot be upheld. The constructions and altera tions are obviously recent, are Pucca and permanent and that the evidence examined has established that these have been got done by the opponent without the consent or permission of the applicant and behind his back. As the learned Rent Controller details in the course of his order there are six places on which constructions and alterations have been made. A portion of the main hall has been walled up and converted into a room and a bath‑room, a bath‑room has been erected by the side of the stair‑case and a wall with a door marked X'. Similarly the doors marked 'Y' and 'Z' have been closed permanently and latrine marked 'E' provided in the store room. With reference to the latrine 'A' it was remarked that it is a Pucca construction connect ed with the drain and the gutter but was of a comparatively recent construction. Another point against the applicant is that it was not possible to believe according to the Rent Controller that these substantial and extensive construc tions and structures and additions could have been effected without the applicant's noticing it. Now it is admitted that although the applicant lives in the same building on the first floor premises his entrance to these premises is from the back and the premises in dispute with the respondent are so constructed and so situated that unless one is present incidentally inside it, it is not possible to say what is going on inside. Admittedly the premises are now occupied by three separate families and arrangements have been made for attachments for the use and the convenience of each one of them. There seems to me no reason why the evidence of two witnesses Pir Muhammad and Khamisa, who the learned Rent Controller discarded as chance witnesses, should be disbelieved for they are neighbours and although they do not state as to the time when the alleged constructions and alterations have been spade but they have definitely stated that when they saw the original premises and the main hall some years ago it was not divided and consisted of first one big hall. From what I saw at the time of my inspection and entrance of the applicant to his own house I accept the word of the applicant that it is not possible for him to have information when these constructions and alterations were made and that these have been constructed secretly and at night. There is no support for the contention that immediately the applicant came to know of this construction he did not take steps to seek his remedy under law ; for he applied as early as 24th July 1954 to the Karachi Municipal Corporation and apprised the opponent of the circumstances in respect of the constructions etc. The mere fact that Karachi Municipal Corporation have not taken any notice of these constructions does not prove that the constructions were not in existence at the time. I hold therefore that the constructions and additions are comparatively recently made, that from the evidence examined and the circumstances that arise there is no doubt that the applicant was unaware of it, that his permission to effect them was not obtained."
Section 15 of the Karachi Rent Restriction Act, 1953, is reproduced below :‑
"15 (1) The Central Government may, on an application to be‑made within thirty days of any order made by the Controller under this Act, call for the relevant record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings, if any, in which the order was made, and may pass such order thereon as it deems fit and may stay the order of eviction pending the hearing and disposal of the matter.
(2) The Central Government may, upon application made to it in this behalf, review any order made by it under the preceding subsection and the provisions of Order XLVII in the First Schedule to the Code of Civil Procedure, 1908, shall as far as may be, apply to such review.
(3) Where an application has been made under either of the two preceding subsections. no application by any ' person in respect of the matters decided by the order of the Central Government under either of those subsections shall be made to the Controller (or if made shall, together with any order made by the Controller in respect of it, be void and of no effect), but any person aggrieved by the order of the Central Government as aforesaid, not being a person who was a party to the applicant first mentioned in this subsection, may make an application to the Central Government‑for review of such order and the provisions of subsection (2) shall apply to such application.
(4) The provisions of Order IX in the First schedule to the Code of Civil Procedure 1908, shall so far as may be apply to applications under this section.
(5). The Central Government may, by general or special order direct that the powers conferred on it by subsection (1) shall, subject to such conditions is may, be specified in the order, be exercisable by a person not below the rank of a judge, Small Cause Court."
The learned counsel urged that the Revisional Authority unlike the Rent Controller had no power to inspect the site and on the impression gathered could not upset the finding of the Rent Controller. He drew our attention to section 19 of the Karachi Rent Restriction Act to show that only the Rent Controller was entitled to enter and inspect the premises and no such provision was made for the benefit of any other authority. We were also referred to the provi sions of the Civil P. C. and the Criminal P. C. to show that power of inspection is specifically given in such statute and even the Court of law have no inherent power to inspect the premises and the site. It was further contended that the Revisional Authority by making the inspection was making further inquiry in the matter, which did not vest in it and is not permissible under the law. These contentions are not without force. On a careful consideration, it appears to us that the Revisional Authority under the Karachi Rent Restriction Act is a special tribunal created for the purposes of the Act and does not possess any inherent power as the Courts of law possess to do the right and to undo a wrong in the course of administration of justice. This power is recognised in section 151, Civil P. C. and of the High Court in criminal matters under section 561‑A, Criminal P. C. In order to find out what are the powers of the Revisional Authority one has to look to the statute itself and if no power of inspection is conferred on it, it cannot be deemed to exist under the principle of ex debito justitiae. It is to be noticed that even under the Civil P. C. and Criminal P. C. power of local inspection is specifically conferred under separate provision of law. The Legislature considered to provide this power for the Rent Controller and special provisions in this respect were made in section 19 of the Karachi Rent Restriction Act. No such power was given to the Revisional Authority and we are unable to find any such power vesting in it outside the said enactment. This view is confirmed by other provisions of this enactment. It will be observed that the provisions of the Civil P. C. were in a limited sense applied to revision applications under section 15 (4), Karachi Rent Restriction Act, Similarly, the provisions of the Civil P. C. were in a limited sense also applied to the proceedings before the Rent Controller. For the respondent it was contended that on the principles of natural justice this power should be deemed to have vested in the Revisional Authority. The principle of natural justice, however, cannot be extended to the power of local inspection. It means nothing more than that the parties con cerned should be heard before the decision is taken in the matter, and hearing should not take place in their absence. It seems to us that the very fact that the right of local inspection was conferred on the Rent Controller and not conferred on the Revisional Authority, clearly shows that the Legislature did not consider it necessary to give this power to the Authority concerned. The reason is obvious since the Revisional Authority was simply to satisfy itself as to the legality or propriety of the order and as to the regularity of proceedings in which the order was made.
Assuming for the sake of argument that the Revisional Authority was entitled to make local inspection, even then the manner in which the learned Chief Judge, Small Causes Court has used the impressions of his inspection in setting aside the Rent Controller's order is open to serious objection and renders the impugned order illegal. The learned counsel for the petitioner drew our attention to Order X V III rule 18 of the Civil P. C, and section 539 (b) of the Criminal P. C. to show that the Courts both in India and Pakistan, have held that the function of a judge in exercising his right of a local inspection granted by the statut8 is for understanding the evidence and for no other purpose. By understanding the evidence is not meant contradicting a witness. A witness may make a statement which from the local inspection may appear to be true but the. learned Judge is not entitled to say it is true from what he observes. The reason for granting this power of local inspection is obviously to provide an opportunity in such disputes in which, without having local inspection it is almost impossible to understand what a witness means and it is in that connection that a Judge is entitled to inspect the locality. Reliance was placed in this connection on Abdul Baqi v. M. Fakhr‑ul‑Islam and others (A I R 1937 Pat. 333), Ram Chandra Rao v. Babu Naryan Lai and Babu Nanhu Lai (XXVII I L R Pat. 554 at p. 569, 58 I C 909), Amratlal and others v. Land Acquisition Officer, Ahmedabad (A I R 1945 Bom. 302 at p. 305) and Raj Chandra Banik and others v. Iswar Chandra Banik and others (A I R 1952 Cal. 170). The Principles enunciated in these authorities make it quite clear that even the Courts of law are not to make the result of inspection the foundation of their judgment which must be based upon evidence adduced by the parties and it does not entitle the judges to put their views obtained by means of such inspection in place of evi dence. The inspection is made for the purpose of better following and understanding the evidence adduced before them or to test its accuracy. In some cases, no doubt, the authorities have gone so far as to lay down that the Court, after local inspection, must prepare a note and should afford an opportunity to the parties to address it on the basis of the notes of inspection prepared by it and the impugned order was also attacked as no such note was maintained on the order. We, have, however, not considered the matter from this angle. But it appears to us that the Revisional Authority cannot be considered to possess a power higher than those exercised by the civil and criminal Courts under the Civil and Criminal Procedure Codes respectively. In this case the learned Chief Judge has definitely used the result of his inspec tion to come to the conclusion that the finding of the learned Rent Controller, in respect of the constructions and altera tions shown, cannot be upheld. In our view this approach is not warranted under the provisions of the Rent Control Act or on the principle of natural justice that are followed by judicial or quasi‑judicial tribunals. There is no doubt in our mind that the learned Judge has used the result of his inspection not in understanding and appreciating the evidence of the witnesses produced by the parties but has made it as the basis for accepting the evidence of respondent No. 3 in the matter under consideration. For this reason also the impugned order cannot be sustained.
The learned counsel for the petitioner also drew our attention to the fact that there is an error apparent on the face of the record in so far as the learned Chief Judge has described the two witnesses viz., Pir Muhammad and Khamisa as neighbours. A perusal of the statement of these witnesses shows that P. W. Khamisa is a carpenter and is not a neighbour of the petitioner or respondent No. 3.
It was contended on behalf of the respondents that the order of the learned Chief Judge, Small Causes Court cannot be disturbed as he was entitled to come to a different con clusion on a finding of fact and the language of section 15 of the Karachi Rent Restriction Act is of a very wide nature and includes in it the power to examine the matter both on questions of fact and law. In support of this contention reliance was placed on Haiz Muhammad Yusuf v. The Custodian General Evacuee Properties, New Delhi and others (A I R 1954 All. 433) State of Bombay v. Chhaganlal Gangaram Lavar (A I R 1955 Born. 1), and certain other Indian decisions reported in c7aswant Rao v. Kashi Nath Rao and others (A I R 1925 All. 253), Ghissu v. Amir Ali Khan (A I R 1926 All. 604), S. Logasigamani Mudaliar and others v. L. R. K. 2heogaraya Chetti (A I R 1927 Mad. 427), the last three decisions being under section 151 of the Civil P. C. These cases are clearly distinguishable as in A I R 1954 All. 433 the learned judges were influenced by the fact that the rules framed by the Government under the Evacuee Property Act of 1950 authorised the Custodian General to admit additional evidence or remit the case for additional evidence in a revision petition. Moreover, the learned judges were not considering the powers of a Revisional Authority under section 27 of the Administration of Evacuee Property Act, 1950. They only observed that the powers of the Custodian General are very vide and for all practical purposes are, in their opinion, indistinguishable from those of an appellate authority. The question before us, what are the powers of the revisional authority on the language of section 15 of the Karachi Rent Restriction Act, was not considered in that authority. In A I R 1955 Bom.1, the learned Judges of the Bombay High Court were considering section 211 of the Bombay Land Revenue Code not from the point of view as to the manner in which the said power Was to be exercised but only from the point of view whether a Kabulayat granted under section 62 of the Land Revenue Code can be modified or cancelled under section 211 of the Land Revenue Code. The answer was in the affirmative, Digit, J. observed
" It may be that the order made by a revenue officer may be an illegal order ; it may also be that the order made by a revenue officer may be an improper order ; or it may well be that there may be an irregularity in the proceedings conducted by the revenue officer. But in each case the revising authority has got to be satisfied, and if before the order is modified, annulled or reversed the authority is to be satisfied as to one or the other of the limitations imposed by section 211, it seems to me that it is implicit in the section that the revising authority must state or indicate the grounds or the reasons as to why the authority is indisposed to modify, annul or reverse the order."
In this case also there are certain observations that the powers under section 211 are very wide, but these observa tions are not in relation to the scope and the manner in which the powers conferred under section 211 of the Bombay Land Revenue Code are to be exercised. These authorities, there fore, are of no assistance in construing the language "as to the legality or propriety of any decision or order passed and as to the irregularity of the proceedings". The learned judges in that case clearly observed that under section 211 of the Bombay Land Revenue Code the Revising Authority, before modifying and annulling the order of the subordinate authority, must be satisfied that the order is not legal or proper. The question whether the finding of the subordinate authority could be disturbed on a question of fact on the same basis as an appellate authority can disturb the order of a subordinate authority was never considered in these cases. These authori ties therefore, are of no assistance for the decision of the case under consideration. It may be further added that under section 211 of the Bombay Land Revenue Code the powers of the Government are much more wider because this pro vision empowers the Government to modify or annul the order of the Collector in any way it likes.
The cases under section 151 of the Civil P. C. are also not helpful as in N. S. Venkatagiri Ayyangar and another v The Hindu Religious Endowments Board, Madras (P L D 1949 PC 26 : A I R 1949 P C 156) their Lordships of the Privy Council have taken a different view Their Lordships observed
"Section 115 applies only to cases in which no appeal lies, and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters (a) That the order of the subordinate Court is within its jurisdic tion ; (b) That the case is one in which the Court ought to exercise jurisdiction ; and (c) That in exercising juris diction the Court has not acted illegally, that is, in breach is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. There can be no justification whatsoever for the view that section 115(c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured.
Where the High Court interfered on the ground that the subordinate Court had made a serious mistake in the con structions of a will ;
Held that the order of the High Court was without juris diction and must be set aside."
The learned counsel for the petitioner, on the other hand has drawn our attention to several decisions of the Bombay High Court under section 23 of the Bombay Mamlatdars' Courts Act, 1906. This section reads as under :‑
"23. (1) There shall be no appeal from any order passed by a Mamlatdar under this Act.
(2) But the Collector may call for and examine the record of any suit under this Act and if he considers that any proceeding, finding or order in such suit is illegal or improper, may, after due notice to the parties, pass such order thereon, not inconsistent with this Act, as he thinks fit.
(3) Where the Collector takes any proceedings under this Act he shall be deemed to be a Court under this Act."
He contended that the language of the provision of this law is almost in identical terms as section 15 of the Karachi Rent Restriction Act. It was also brought to our notice that formerly under the Rent Restriction Act applicable to Karachi, right of appeal was given to the Collector, but this right was taken away under the present enactment. The scope of section 23 of the Bombay Mamlatdars' Courts Act, 1906, was considered in a number of Bombay High Court decisions viz. Kashiram Mansing v. Rajaram Dayaram Paril (13 B L R 879), rlagannath Deokaran Marwadi v. Dhondu Ananda Kunbi (26 B L R 265), Hasan Mahk v. Rasul Malik (15 B L R 680), Babaji Kondaji Mali and others v. Bala Fakira Mahar and others (A I R 1938 Bom. 159) and Sadhu Yesu v. Ganpat Laxman and another (A I R 1956 Bom.672). According to these decisions the Revisional Authority could not set aside the Mamlatdar's order on the ground that he did not agree with his findings of fact. In A I R 1938 Bom. 159, Beaumont, C. J. observed
" If a Collector exercising powers of revision under section 23, Bombay Mamlatdars' Courts Act, exercises powers of a Court of Appeal, that is if he sets aside tire order of Mamlatdar oil the ground of mere disagreement on the findings of facts, he assumes jurisdiction which he does not possess under the Act. Hence High Court would interfere with his order in exercise of its powers under section 115, Civil P. C."
The learned counsel also drew our attention to some cases under sections 435 and 436 of the Criminal P. C. Our attention was particularly invited to a decision in Azizuddin R. Faruqi v. Emperor (A I R 1939 Sind 71). In this judgment Davis, J. C., while considering the scope of section 436, observed :‑
"A Sessions judge should not usurp the jurisdiction conferred by law upon a Magistrate and should not interfere with a careful and fairly proper order of a Magistrate merely because the Sessions judge takes a different view upon the evidence from that of the trying Magistrate, when the view taken by the Magistrate is reasonable in all cir cumstances of the case".
In that case the learned judge was considering the meaning of the words "as to the correctness, legality or propriety of any finding, sentence or order", and although the language of section 436 was much wider than that of section 15 of the Karachi Rent Restriction Act, yet it was field that the ground on which the order of the Magistrate can be set aside is not mere disagreement on the findings of fact. Cases under the Karachi Rent Control Act stand on a much stronger footing.
It appears to us that while an appellate authority is entitled to examine every question of fact or law arising out of an order, the Revisional Authority can interfere with an order of the Rent Controller on a question of law where the Rent Control Act or any of its provisions has been mis construed, but normally the finding of fact cannot be inter fered with unless there was no material on which such a finding could be based or the finding has been reached on a consideration of irrelevant or inadmissible matter or it is so perverse that no reasonable person could have reached that conclusion, or the finding was reached by an erroneous under standing of the law applicable to the matter. On the language of section 15 of the Karachi Rent Restriction Act, the Revisional Authority cannot disturb the finding of fact oil any other grounds, otherwise there will be no distinction left between an appellate and revisional jurisdiction. In the present case it cannot be said that there was no material whatever on which the Rent Controller could have arrived at his finding. It cannot also be said that a finding was reached on a consideration of irrelevant and inadmissible matter. It cannot also be held that the finding of the learned Rent Controller is so perverse that no reasonable person could arrive at such a conclusion. In our opinion the order of the Rent Controller is an. order of a person of a reason able mind and cannot be disturbed on the principles described above.
There is not the slightest doubt in our mind that the learned Chief Judge, Small Causes Court embarked on a further enquiry in making a local inspection of the site in dispute. This was not permissible under the Karachi Rent Restriction Act. It has‑already been observed that although this power was specifically conferred on the Rent Controller, it was not given to the revisional authority arid therefore it can reasonably be argued that the Legislature did not want to empower the revisional authority to exercise the power of local inspection. The learned counsel has also invited our attention to a decision of this Court in Noman Bhai Dawood Bhai Vasi and others v. Mr. Justice Muhammad Bakhsh Memon (Acting as Custodian, Evacuee Property arid others) (PLD 1957 Kar. 160 at p. 164). In this decision section 36 of the Pakistan (Administration of Evacuee Property) Ordinance 1949 was under consideration. Our learned brother Sir George Constantine in that connection observed :‑
"It appears to us to be inconsistent with the Ordinance and the rules that further enquiry should be made in revision. We are supported in this view by Babaji Kondaji Mali v. Bata Fakira A I R 1938 Bom. 159 where Beaumont, C. J. dealing with a substantially identical provision in the Mamlatdars' Courts Act 1906 held that a Collector in revision is not entitled to submit his own findings of fact this decision has recently been followed by Ganjendragethar, J., in October issue of A I R. We need not go so far, but we do consider that a fresh enquiry is outside the scope of revision".
These observations are in connection with section 36 (4) of the Pakistan (Administration of Evacuee Property) Ordinance 1949 which is in these terms :‑
"36 (4) The Custodian may, at any time either of his own motion or on application made to him within the prescribed period in this behalf, call for the record of any proceeding for the administration of evacuee property which is pending before or has been disposed of by an officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may pass such order in relation thereto as he thinks fit".
We respectfully agree with the observations in that case and consider that the revisional authority under the Karachi I Rent Restriction Act was not entitled to make local inspection and to use it in setting aside the order of the Rent Controller. We are further of the opinion that even on the language of section 15 of the Karachi Rent Restriction Act the revisional authority is not entitled to set aside the order of the Rent Controller merely because his conclusions oil questions of fact are different from those taken by the Rent Controller. He could only interfere with the finding of the Rent Controller on the ground indicated above.
There is however another ground on which the order of the learned Rent Controller has also been set aside. It has already been stated that the learned Chief Judge, Small Causes Court also set aside the order of the learned Rent Controller on the question of "sub‑letting". The learned Chief Judge of the Small Causes Court in this connection observed :‑
"After bearing the learned Advocates on either side and having been taken through the evidence examined in the case and bear‑in (sic) in view the bitter disputes that prevail between the parties, it is clear that the opponent has taken otter occupants into the joint occupation with him without the consent of applicant and the applicant has not acquiesced in this position".
We have perused the record of, the Rent Controller and also of the learned Chief Judge of the Small Causes Court, there is no evidence to show that bitter disputes prevailed between the parties in respect of the matter under consideration. Nothing has been said by the respondent No. 3 in this respect and none of the witnesses produced on behalf of respondent No. 3 have stated about the bitter disputes between the parties with regard to the premises in dispute In our opinion the learned Chief Judge, Small Causes Court, has based his finding on facts which are not proved on they record and the order in this respect is liable to be set aside.
The learned counsel for the parties addressed us at length on the question whether there could be waiver and acquiescence in respect of sub‑letting contemplated under the provisions of the Karachi Rent Restriction Act The learned counsel for the petitioner also raised the point that the premises sub‑letted before the said enactment are not affected and cannot be made the ground of ejectment. The pro visions of the Karachi Rent Restriction Act, 1953, have no retrospective effect and it is very doubtful if the sub‑letting earlier than 19,53 can be the ground of ejectment under section 10 of this enactment.
There is, however, much force in the argument. The permission of the landlord required under section 10 of the Karachi Rent Restriction Act can be oral and may be gathered from the attendant circumstances. It will be noticed that the Karachi Rent Restriction Act, 1953, was preceded by the Sind Rent Restriction Act, 1947, and Karachi Rent Restric tion Ordinance, 1952. Under those enactments, sub‑letting could only be effected with the written permission of the landlord. In the present enactment no written permission of the landlord is required. This, by itself, is a very significant omission.
The learned counsel for the respondents urged that there would not be all implied consent as the very word permission does not permit to include an implied permission, There is no force in this argument. Without expressing our views on the facts of the present case, it appears to us that on the language of section .10 (2) (b) both express and implied I permission can be considered to be included in the word "permission". The learned counsel for the petitioner in this connection invited our attention to the observations made by the learned Judges of the Court of Appeal in a case reported in (1952) 2 All England Law Reports, 102. The question in that case was one of the interpretation of the few words of Para (d) of Schedule I of the Act of 1933, viz., "the tenant without the consent of the landlord has at am, time after 31st July 1923, assigned or sublet the whole of the dwelling‑house". The learned Judges in that connection observed :‑
"It remains, then, to determine the consent, express or implied, must have been given at or before the time of the sub‑letting or may be given ex post facto. In this connec tion it is to be remembered that the paragraph applied in a case where by the terms of the contract of letting no consent is required at all. In such a case a tenant who had omitted at the time of sub‑letting to note the possible effect of Para (d) might have failed then to ask for consent. It would, we think, be startling if, though the tenant later repaired the omission and obtained the approval of his landlord, nevertheless Para (d) applied to enable the landlord to invoke the jurisdiction of the Court, or does it seem to us a satisfactory answer to the example to say that the Court in such a case would inevitably hold it unreasonable to make an order. In our judgment, therefore, it is in accordance with the fair construction of the paragraph and the principles generally applicable in Rent Act cases to hold that Para (d) is excluded if, in fact, at any time before the issue of the proceedings, though not necessarily at or before the time of the sub‑letting, the landlord's consent thereto has expressly or by implication been obtained, and, although, as we have said, the con ception of consent to an act is not the same thing as waiver of its consequences and the former conception is neces sarily appropriate where the act in question is not itself a breach of any obligation‑still, the conduct of the land lord in ' the present case in accepting rent for a period of four and a half months with clear knowledge of the sub‑letting which the judge held (and, as we think beyond doubt, rightly held) to amount to a waiver of the covenant, must inevitably amount; also to a "consent" to the sub letting in the sense of being a negation of any objection thereto, and all the more so since the sub‑tenants were the same persons who had in another capacity been in fact the occupants of the premises ever since the tenancy began. For it seems clear that one object (at any rate) of Para (d) was to give some protection to a landlord against the risk of finding some person wholly unknown to him irremovably installed in his property. On the question of the construc tion of the paragraph we find some support for our view in the language of Lord Watson in Lord Elphinstone v. Monkland Iron & Coal Co. (11 App. Cas. 337)".
The observations of the learned Judges in that case can also be applied to cases under the Karachi Rent Restriction Act and on a consideration of the authorities cited before us it appears that the permission contemplated under section 10 of the Karachi Rent Restriction Act also includes implied permission.
For the reasons given above, we quash the order of the learned Chief Judge, Small Causes Court and order that the matter should be considered afresh and be decided according to law. A writ of certioari containing the above directions will follow. Respondent No. 3 will pay the costs of this petition.
A. H. Petition accepted.
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