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Constitutional Petitions Nos.S-76 and S-77 of 1985, decided on 22nd January, 1987.

---S.17--Constitution of Pakistan (1973), Art.199--Writ jurisdiction- Ejectment on ground of personal bona fide need of premises by landlord--High Court would not ordinarily interfere with findings of fact given by subordinate Tribunal which were based on appraisal of evidence but in exceptional cases such rule could be departed from- Findings could be interfered with if found to be based either on no evidence or on wrong assumption of evidence or misreading of evidence going to the root of jurisdiction--Rent Controller while accepting landlady's application ordering ejectment of tenants but District Judge in appeal setting aside orders of Rent Controller holding that evidence adduced by landlady before Rent Controller was not sufficient to establish her bona fides or good faith in regard to her personal requirement--Some of findings of District Judge although based on erroneous assumption of facts not supported by evidence but his judgment not turning against landlady solely on basis of such findings--All circumstances of case had to be considered in their entirety and their cumulative effect on the mind of District Judge had to be seen--Isolated passages from judgment, even if based on misreading of evidence or wrong assumption of facts, held; could not by themselves justify interference with the findings of District Judge.

Muhammad Hussain Munir v. Sikandar and others P L D 1974 S C 139; Noor Muhammad v. Sarwar Khan and 2 others P L D 1985 S C 131; Employees' Welfare Union v. R.B. Industries Ltd., Karachi and another P L D 1976 Kar. 297; Abid Hussain v Government of Sind and 3 others P L D 1984 Kar. 269; Miss Nasreen Fatima Awan v. Principal, Bolan Medical College P L D 1978 Quetta 17 and Messrs Jan Textile Mills, Karachi v. Sind Labour Appellate Tribunal and 2 others P L D 1977 Kar. 836 ref.

---S.17(4)(b)--Ejectment on ground of personal bona fide requirement of landlord--Landlord has to establish (1) that the building was required by him in good faith for his own use, (2) that he was not occupying any other such building suitable for his needs and (3) that he had not vacated such building without sufficient cause and all the three grounds must be independently established before an order of ejectment could be passed by Controller--Mere fact that some of requirements laid down by S.17(4)(b) of Act had been fulfilled by landlord would not make the tenant liable for ejectment from demised premises--Landlady having failed to establish good faith, fulfilment of other requirements of S.17(4)(b), held, could not entitle her to get an order in her favour from Controller.

Shamsul Arfin Qureshi for Petitioner.

S. Inayat Ali with Makhdoom Abdul Wali for Respondents.

Dates of hearing: 26th November and 2nd December, 1986.

This judgment disposes of C.P.C. No.76/85 and C.P. No.77/85 as common questions are involved.

The facts of the case are, that the petitioner in these cases is the landlady of the premises constructed on plot No.38-C, Commercial area, phase-II, Defence Housing Society, Karachi and Muhammad Ramzan and Muhammad Aslam Hameed are the petitioner's tenants in respect of two shops in the ground floor. In 1982 the petitioner filed eviction applications under the provisions of section 17 of the Cantonments Rent Restriction Act, 1963 against the respondents, seeking their ejectment from the two shops on the ground of (1) default in the payment of water charges, (2) unauthorised construction, and (3) personal bona fide requirement of the petitioner. In respect of the last ground, it was averred by the petitioner that she was running a business of estate consultancy on the first floor of the building which place was not suitable for her requirements. It was also averred that the petitioner's income from the aforesaid business was not sufficient for the needs of her family and as such she planned to expand her business for which the two shops on the ground floor were required by her, bona fide and in good faith. Both the applications were resisted by the two respondents. The learned Controller after recording evidence accepted the applications of the petitioner on the ground of her personal requirement only and ordered ejectment of the two respondents from the demised premises by directing them to hand over vacant possession to the petitioner by 31st March, 1984. The respondents then filed their respective appeals before the learned District Judge, Karachi, which were allowed and the orders passed by the learned Controller were set aside.

2. The learned District Judge was impressed by the fact that the petitioner had rented out the shops in question in 1976 which showed that she found the accommodation on the first floor more suitable for her business otherwise the shops would not have been let out by her. The learned District Judge also found other contradictions in the petitioner's stand as on one hand the petitioner had stated that her husband would be looking after her business after its expansion and on the other she stated that her husband was suffering from heart ailment. In short, the learned Judge found that the evidence adduced by the petitioner before the learned Controller was not sufficient to establish her bona fides or good faith in regard to her personal requirement.

3. I have heard Mr. Shamsul Arfin Qureshi learned counsel for the petitioner and Mr. Syed Inayat Ali, learned counsel for the respondents in both the petitions. Mr. Syed Inayat Ali was further assisted by Mr. Makhdoom Abdul Wali in C.P.No.76 of 1977.

4. The first contention of Mr. Shamsul Arfin Qureshi, learned counsel for the petitioner, has been that the orders of the learned District Judge are based on wrong assumption of facts which cannot be supported by evidence on record and as such the orders passed by him were liable to be set aside. His further contention was that since the petitioner had succeeded in establishing that neither she nor any other member of her family was in occupation of any other commercial building suitable for her or their needs in the same area where the demised premises were situated, nor she or they had vacated any such building in such area at the time of filing of the eviction applications the petitioner had fully established her case as required by section 17(4)(a) of the Cantonments Rent Restriction Act and the orders passed by the learned District Judge were therefore erroneous.

5. It may be pointed out at the very outset, that there is no contest on the point that the learned District Judge has assumed certain facts which do not find support from the evidence recorded by the learned Controller in the case. For instance, the learned District Judge has proceeded on an assumption that the business was started by the petitioner in 1974 and the premises in question were rented out by her in 1976. Again, it was assumed that the husband of the petitioner had retired from defence service in 1974 and thereafter he started his business along with the petitioner which admittedly is not 'correct as according to the evidence the petitioner's husband had joined private service after his retirement from defence service and he retired heared from in 1979. There is, therefore, no doubt, that the evidence in the case has-been clearly misread by the learned District Judge. As to the next ground it may be pointed out that both in the eviction application as well as in her affidavit filed in evidence by the petitioner, she has clearly stated that both she as well as her husband were not occupying any other premises suitable for their needs nor they had vacated such premises at the time of filing of the eviction application. It is clearly evident from the impugned judgments of the learned District Judge that this evidence has not been referred to or discussed by him at all. However, on the basis of other evidence, -the learned District Judge has arrived at the conclusion that from the evidence adduced by the petitioner it was not established that she required the two shops in good faith for her personal needs.

6. Mr. Syed Inayat Ali has however, argued that assuming that the judgment of the learned District Judge is based on the erroneous assumption of facts or misreading of evidence, still this Court cannot interfere with the findings of fact given by the learned District Judge as the sphere of the jurisdiction of this Court is very limited as it has only to see whether the' administrative tribunal or a subordinate Court has acted within the jurisdiction conferred upon it by the statute or it has transgressed such limits. Reliance has been

placed by the learned counsel on a well known decision of the Supreme Court in the case of Muhammad Hussain Munir Kandar and others P L D 1974 S C 139. In this case the expression "without lawful authority and of no legal effect" appearing in Articles 98 and 199 of the 1962 and 1973 Constitutions, respectively, came to be interpreted and it was held by the Supreme Court that such expressions are expressions of art and they refer only to the jurisdictional defects as distinguished from mere erroneous decisions which may be either on a question of fact or law. It was further held, that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the mere fact that the decision is incorrect does not render the decision without jurisdiction. Relying very heavily on this decision, Mr. Syed Inayat Ali has argued, that this Court cannot enter into re-appraisal of evidence in the case and the assumption of evidence made by the learned District Judge cannot be gone into in the exercise of constitutional jurisdiction. Reference has also been made to another decision of the Supreme Court reported as Noor Muhammad v. Sarwar Khan and two others P L D 1885 S C 131 wherein the Supreme Court has more or less reaffirmed the same view by observing as follows:-

"6--Before parting with the case we may observe that there is an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a persona designata), has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal. Refer Badrul Haque Khan v. The Election Tribunal, Dacca and others, Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 and Abdul Rehman Bajwa v. Sultan and 9 others P L D 1981 S G 522."

The case of Muhammad Hussain Munir v. Sikandar and others was, however, considered by a Division Bench of this Court in Employees' Welfare Union v. R.B. Industries Ltd. Karachi and another P L D 1976 Kar. 297 and it was observed that the principle of law stated in the Supreme Court case was subject to certain exceptions, it was then held that "if a finding of fact or of 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 error of law." Some decisions were also quoted in this case from the English jurisdiction and reference in this respect be made to the cases of R.V. Northumberlan Compensation Appeal Tribunal, Ex parte Show (1952) 1 K B 338 and R.V/s Medical Appeal Tribunal, Ex parte GILMORE (137) 1 All E R 796. Reference was also made by the Division Bench to Rahim Shah's case (P L D 1973 S C 24) wherein it was held that the term "law" was not confined to statute only and in holding the inquiry the superior Courts were not restricted to an examination of record of the case and the Courts might even record evidence to determine the legality of the act done or the proceedings undertaken. Another case which may be cited on the point is the case of Abid Hussain v. Government of Sind and three others P L D 1984 Kar. 269 which was also decided by a D.B. of this Court. In this case, Abdul Hayee Qureshi, Acting C.J. (as he then was), held that where the inferior tribunal had given a finding of fact the same should not formally be substituted by a finding arrived at by the High Court, though, in exceptional cases the High Court could be completely justified in arriving at its own conclusions, provided that all the material is available on the record. Reference may also be made to the case of Miss Nasreen Fatima Awan v. Principal Bolan Medical College P L D 1978 Quetta 17 where the same learned Judge while writing the judgment of the D.B. observed as under:-

"However, it would be laying too broad a proposition, if it is stated that this Court cannot at all interfere with the decision on facts recorded by administrative tribunals. A wealth of case law is available on the point. There have been instances when the High Courts have travelled into the realm of facts in exercise of their constitutional jurisdiction. The High Courts have interfered when findings based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent error of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreasonable views on evidence, has been taken. It cannot be said that every finding of executive tribunal is beyond the scope of interference of the High Court, because if that were so, the concept of certiorari would virtually become redundant and meaningless. We are sure such helplessness on the part of the superior Courts was riot contemplated by the vast body of case law that has come to occupy the field over the years. We do not wish to be misunderstood as meaning that the High Court in such cases will convert itself into a Court of appeal and determine the minutes confabulations in the evidence, but the High Court has to be satisfied that reasonably correct conclusion has been recorded and the decision does not suffer from perversity. To adopt any other view would neither be according to dictates of law nor founded an principles of justice and an attempt to find an apology for such refrain would only be in vain."

A similar question also arose in Messrs Jan Textile Mills Karachi v. Sind Labour Appellate Tribunal and two others P L D 1977 Kar. 836 wherein one of the grounds raised was that the order of the tribunal which was impugned was based on non-consideration of the material evidence and therefore, the same was void. It was held that the order could be interfered with by the High Court as non-consideration of a material piece of evidence in a judicial or quasi-judicial order is one of the recognized grounds for interference in the exercise of constitutional jurisdiction.

7. The consensus of the authorities, therefore, clearly is, that, although ordinarily the High Court would not interfere with the findings of fact given by a subordinate tribunal which are based on appraisal' of evidence, but in exceptional cases this rule can be departed from. Therefore, if such findings are found to be based either on no evidence or on the wrong assumption of evidence or misreading of evidence, and they go to the root of the jurisdiction, then the High Court can interfere. In the present case, although it is not controverted that some of the findings of fact as pointed out above are based on erroneous assumption of facts which are not supported by evidence, but the question is, do such findings go to the root of the matter There is no doubt that the judgment of the learned District Judge does not turn against the petitioner solely on the basis of such findings as the learned District Judge on the basis of the entire evidence recorded by the learned Controller has concluded that the evidence adduced by the petitioner was not sufficient to establish her bona fides in regard to her need. In my view, the findings do not call for interference as all the circumstances of the case are to be considered in their entirety and their cumulative effect on the mind of the learned District Judge has to be seen and isolated passages from the judgment, even if they are based on misreading of evidence or wrong assumption of facts, cannot by themselves justify interference with the findings of the learned District Judge. Therefore, in my view, interference with the findings of the learned District Judge is not called for and the argument of Mr. Shamsul Arfin Qureshi cannot be accepted.

8. The next argument of Mr. Shamsul Arfin has been that the evidence adduced by the petitioner before the learned Controller, indicating that the petitioner was not occupying any other premises or building suitable for her needs and that she had not vacated any such premises or building at the time of filing of the eviction application, has not been considered at all by the learned District Judge and therefore, his finding that good faith had not been established was clearly erroneous and liable to be struck down as material evidence has been clearly ignored by the learned District Judge. Although it is true that this piece of evidence as pointed out has not been discussed in the impugned judgment, but according to section 17(4)(b) of the Cantonments Rent Restriction Act, the landlord of the building, seeking ejectment of the tenant therefrom is required to establish three things, viz. , (1) that the building is required by him in good faith for his own use etc., (2) that he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof for the purpose of his business any other such building suitable for his needs at the time and (3) that he has not vacated such building in the said area or vicinity without sufficient cause etc. All the three grounds must therefore, be independently established by the landlord before an order, ejecting the tenant from the building can be passed by the Controller. Therefore, the mere fact that some of the requirements laid down by section 17(4)(b) had been fulfilled by the landlord would still not make the tenant liable for ejectment from the demised premises. Now, since according to the learned District Judge, the petitioner had failed to establish good faith, then assuming that other requirements of section 17(4)(b) had been fulfilled by her, the same could not entitle the petitioner to get an order in her favour from the Controller. Therefore, in my view, even the second argument of Mr. Shamsul Arfin is devoid of force and must, therefore, be repelled.

9. For the aforesaid reasons I find no merit in these petitions and the same are therefore, dismissed. There will be no order as to costs, in view of the questions raised in these petitions.

S.Q./N-21/K Petitions dismissed

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