PLJ 2010 SC 1006
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ.,
Ch. Ijaz Ahmed & Ghulam Rabbani, JJ.
Ch. Ijaz Ahmed & Ghulam Rabbani, JJ.
JAVED
MASIH and others--Appellants
versus
ADDITIONAL
DISTRICT JUDGE, LAHORE
Civil
Appeal No. 1517 of 2006, decided on 12.1.2010.
(Against
the judgment dated 24.4.2006 passed by Lahore High Court, Lahore
----S.
13(6)--Ejectment petition--Rent was not
deposited--Ground of default in payment of rent--Rent premises were jointly
owned by three persons--Property in-question was sold--Rent Controller after
recording the evidence of the parties dismissed the ejectment
petition--No relationship of landlord and tenant existed between the
parties--Right of defence was struck off--Appeal was
dismissed--Being aggrieved the writ petition was filed before High Court, which
was also dismissed--Challenge to--Held: In the first round of litigation before
First Appellate Court the Court after re-evalution of
the evidence on record had given finding of fact against the appellants that
relationship of landlord and tenant had existed between the parties as is
evident from the judgment--Appellant did not deposit rent in terms of order
passed by Rent Controller--Court had given various opportunities to appellants
to produce receipts qua depositing of rent in terms but appellants had failed
to produce the same in proof of compliance of the order--Appeal was dismissed. [Pp. 1008 & 1009] A
Agreement
to Sell--
----Appreciation
of evidence--Agreement to sell does not contain any clause that the appellants
had taken possession of the premises in terms of agreement to sell--All the
Courts below had given concurrent findings of fact after proper appreciation of
evidence on record against appellant--Supreme Court does not interfere in
concurrent finding of fact arrived at by the Courts below while exercising
power under Art. 185(3) of Constitution. [P. 1009] B
Constitutional
Jurisdiction--
----Constitutional
jurisdiction is a discretionary in nature--He who seeks equity must come with
clean hands. [P. 1009] C
Constitution
of Pakistan
----Art.
185(3)--Leave to appeal--Concurrent finding--No jurisdiction to substitute its
own findings--Supreme Court has no jurisdiction to substitute its own finding
in place of finding of the Courts below while exercising power under Art. 185(3) of Constitution. [P.
1009] D
PLD
1981 SC 246 and PLD 1981 SC 522 ref.
Concurrent
Findings--
----Practice
and rule of Court in civil appeals--Supreme Court would not normally go behind
a concurrent finding of fact recorded by Court below, unless it can be shown
that finding is on the face of it against the evidence or so patently
improbable or perverse that to accept it could amount to perpetuating a grave
miscarriage of justice, or if there has been any mis-application
of principle relating to appreciation of evidence, or finally, if finding could
be demonstrated to be physically impossible--Held: Being the practice and rule
of the Court in civil appeals, the burden lies heavily on the appellants to
show that concurrent findings recorded by High Court are not sustainable on the
record and should be interfered by Supreme Court. [Pp. 1009 & 1010] E
Mr. A.H.Masood, A.O.R. for Appellants.
Ex-parte for Respondents.
Date
of hearing: 12.1.2010.
Judgment
Ch. Ijaz Ahmed, J.--Necessary facts out of which the present
appeal arises are that Respondent No. 3 filed ejectment
petition under Section 13 of Rent Restriction Ordinance, 1959 against the
appellants before the Rent Controller, Lahore, on the ground of default in
payment of rent. Appellants/defendants filed written statements and denied the
relationship of landlord and tenant and also stated in reply to the ejectement petition that the rented premises are jointly
owned by three persons, namely, Taj Muhammad, Nazir Ahmad and Ali Jan. The property in question was sold
by Taj Muhammad and Nazir
Ahmad vide agreement to sell dated 18.6.1997 to Appellant No. 3 and on failure
of the vendor to execute a registered sale deed a suit for specific performance
was filed. Out of the pleadings of the parties the learned Rent Controller had
framed issue qua existence of the landlord and tenant relationship inter se between
the parties. The learned Rent Controller after recording the evidence of the
parties dismissed the ejectment petition vide order dated 5-3-2003 by holding that no relationship of
landlord and tenant existed between the parties. Respondent No. 3 being
aggrieved filed an appeal before the learned Additional District Judge who vide
order dated 12.12.2003 accepted the appeal and remanded the case to the Rent
Controller by observing that relationship of landlord and tenant between the
parties existed. The Rent Controller directed the appellants to deposit the
rent vide order dated 26.10.2004. The appellants failed to deposit rent in
terms of order dated 26.10.2004, the learned Rent Controller had struck off
right of defence of the appellants and passed the ejectement order against the appellants vide order dated
3.1.2005. The appellants being aggrieved filed an appeal before the District
Judge, Lahore Lahore
"After
considering the arguments of the learned ASC for the petitioner and going
through the record we are of the view that this case suffers from gross
misapplication of mind, misconstruction of the documents, ignorance of the
material documents and facts on record by all the three Courts who have
proceeded to decide the case in a cursory and hasty manner.
It
was brought to the notice of the Rent Controller that the petitioners had filed
a suit for a specific performance of agreement to sell dated 18.6.1997 prior to
filing of the ejectment application but this fact
does not find mention in the order/judgment of any of the three Courts, which
is very material factor for deciding the above issue.
Leave
to appeal is granted to the petitioners to re-examine and re-appraise the
evidence on record for determination of the relationship of landlord and tenant
between the parties".
Hence
the present appeal.
2. Learned counsel for the appellants submits
that all the Courts below had erred in law to decide the case against the
appellants without adverting to the evidence on record. Relationship of
landlord and tenant had not existed between the parties and this fact was not
scrutinized by all the Courts below in its true perspective.
3. We have given our anxious consideration to
the contentions of the learned counsel for the appellants and perused the
record. It is an admitted fact that
in the first
round of litigation
before the First Appellate Court the First Appellate
Court after re-evaluation of the evidence
on record had
given finding of fact against the appellants that the relationship of
landlord and tenant had existed between the parties as is evident from para 6 of the judgment of the Additional District Judge
dated 12-12-2003. It is also an admitted fact that appellants did not deposit
rent in terms of order dated 26.10.2004 passed by learned Rent Controller under
Section 13(6) of the Punjab Urban Rent Restriction Ordinance. The learned Rent
Controller had given various opportunities to the appellants to produce
receipts qua depositing of rent in terms of order dated 26.10.2004 but the
appellants had failed to produce the same in proof of compliance of the said
order. Respondent No. 3 had taken a specific plea in Para 1 of the ejectment petition that predecessor-in-interest of the
appellants had taken premises in question on rent from the
predecessor-in-interest of Respondent No. 3 on 12.10.1991 and this fact was not
denied by the appellants in reply to the ejectment
petition as is evident from Para 1 of the reply. It is pertinent to mention
here that agreement to sell does not contain any clause that the appellants had
taken possession of the premises in question in terms of agreement to sell. All
the Courts below have given concurrent findings of fact after proper
appreciation of evidence on record against the appellants. This Court,
normally, does not interfere in the concurrent findings of fact arrived at by
the Courts below while exercising power under Article 185(3) of the
Constitution.
4. It is a settled principle of law that
constitutional jurisdiction is a discretionary in nature. He who seeks equity
must come with clean hands. In view of the conduct of the appellants as
mentioned above we are not inclined to exercise our power under Article 185(3)
of the Constitution. It is also a settled principle of law that this Court has
no jurisdiction to substitute its own finding in place of finding of the Courts
below while exercising power under Article 185(3) of the Constitution. See Ata Ullah Malik's case (PLD 1964 SC
236). Learned High Court was justified to dismiss the writ petition which was
filed by the appellants against the concurrent conclusions of the Courts below.
The impugned judgment is in consonance with the law laid down by this Court in
various pronouncements. See Muhammad Sharif's case
(PLD 1981 SC 246) and Abdul Rehman Bajwa's case (PLD 1981 SC 522). The learned counsel for the
appellant has failed to point out any piece of evidence which was misread or
non-read by the Courts below. As mentioned above this Court would not normally
go behind a concurrent finding of fact recorded by the Courts below, unless it
can be shown that the finding is on the face of it against the evidence or so
patently improbable or perverse that to accept it could amount to perpetuating
a grave miscarriage of justice, or if there has been any mis
application of a principle relating to appreciation of evidence, or finally, if
the finding could be demonstrated to be physically impossible. This being the
practice and the rule of the Court in civil appeals, the burden lies heavily
on the appellants to show that
concurrent findings recorded by the High Court are not sustainable on the
record and should be interfered by us. The learned counsel of the appellants
has failed to bring the case in the said parameters. Even otherwise the learned
counsel for the appellants has failed to raise any substantial question of law
of public importance. The appeal has no force and the same is dismissed with
costs.
(R.A.) Appeal
dismissed.
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