Sheikh MUHAMMAD ARIF through Legal Heirs vs Syed AHMED E AROOQ and others
This matter involves a petition for leave to appeal against a Lahore High Court judgment that remanded a rent dispute case. The dispute arose from a second ejectment application filed by a landlord under the Cantonments Rent Restriction Act, 1963, following the dismissal of an initial application. The Rent Controller had dismissed the second application on the grounds of res judicata, but the Additional District Judge, while dismissing the appeal on merits regarding the lack of bona fide personal requirement, explicitly disagreed with the finding of res judicata. The High Court, however, proceeded on the erroneous premise that the Additional District Judge had upheld the res judicata finding. The Supreme Court granted leave to appeal, holding that the High Court exercised its jurisdiction incorrectly by misconstruing the appellate court's findings. The core principle established is that a High Court, when exercising writ jurisdiction, must accurately reflect the findings of the lower appellate court and cannot set aside an order based on a factual premise that contradicts the record of the proceedings.
- Can a High Court set aside an appellate order based on a factual premise that contradicts the record of the proceedings?
- Does a second rent application based on a different ground of personal requirement constitute res judicata when the first application was dismissed on a different ground?
- Is the High Court justified in remanding a case when it misinterprets the findings of the lower appellate court regarding the applicability of res judicata?
- Section 17, Cantonments Rent Restriction Act 1963
ORDER
AJMAL MIAN, J.---Leave to appeal is sought against the judgment dated 25-10-1989 passed by a learned Single Judge of the Lahore High Court in Writ Petition No,377 of 1983 allowing the respondent's above petition against the order dated 26-7-1983 passed by the learned Additional District Judge, Rawalpindi, maintaining the order of the learned Rent Controller dated 3-4-1983 though on different ground.
2. The brief facts leading to the filing of the above petition are that the respondent filed aforesaid rent application under section 17 of the Cantonments Rent Restriction Act, 1963 (Act No,XI of 1963) hereinafter referred to as the Act on the ground of personal requirement of the landlord's wife i,e.
Predecessor-in-interest of the respondent. The above application was dismissed by an order dated 21-11-1979 on the ground that the above ground was not provided as a ground for ejectment in the Act. After hardly 2-3 weeks the landlord filed the second rent application on 16-12-1979 on the ground of his personal requirement, which was dismissed by the learned Rent Controller by his order dated 3-4-1983 on the ground that after having failed in the earlier application the second application was not competent. Against the above order, the landlord filed the aforesaid appeal which was disposed of by the learned Additional District Judge by his order dated 26-7-1989, whereby he did not agree with the learned Rent Controller that the second rent application was barred by res judicata but held that on merits there was no case. He recorded a finding of fact that the landlord failed to prove bona fide personal requirement and, therefore, dismissed the appeal by the above order. Against the above order the landlord filed the aforesaid writ petition, which was allowed in the above terms and the case was remanded. The petitioner has, therefore, filed the present petition for leave to appeal.
3. We have heard Kh. Muhammad Farooq, learned A.S.C. And it seems that the High Court proceeded on the wrong premise that the learned Additional District Judge in the appeal had also held that the second rent application was barred by res judicata, though factually it was not so as the learned Additional District Judge did not agree with the learned Rent Controller on the above point. The relevant observations of the learned Additional District Judge on the above question are as follows:- " The second ejectment petition was filed on the ground that the shop in dispute is requried for appellant-petitioner Syed Ahmad Farooq to run business. It is obvious that the matter in dispute in both the petitions was different. Therefore, it cannot be argued that in the second petition the issue was same old one. The question worth consideration was whether or not the new claim regarding the personal use of the shop in dispute inspired any confidence through evidence produced by the appellants/petitioners."
In this view of the matter, the High Court has not exercised its jurisdiction in accordance with law.
We, therefore, grant leave to appeal to consider the question whether the High Court was justified in setting aside the order of the learned Additional District Judge in spite of the fact that the learned Additional District Judge had already concluded that the second rent application was not hit by res judicata. Security in the sum of Rs,5,000. Status quo will continue.
The appeal shall be prepared on the present record with the direction to the parties to file necessary documents, if any, for the disposal of the above appeal.