MUHAMMAD YAQOOB Versus ADDITIONAL DISTRICT JUDGE

ORDER

1. MUHAMMAD AFZAL ZULLAH, CJ. ‑‑‑This petition by an alleged partner (the tenant side) who has been held to be a tenant, is directed‑against the dismissal by the High Court of his Constitutional (Writ) Petition; whereby he had challenged the order of his eviction under the Urban Rent Restriction Law. The petitioner has lost throughout on the ground of being defaulter in payment of rent and damage to the property.

2. Learned counsel for the petitioner has vehemently contended that it was not a case of tenancy but of partnership. He, however, admitted that the parties having dissolved the alleged partnership, the same is under litigation and a separate suit is still pending in that behalf. Giving the facts of the present case the learned counsel stated that in an earlier round of litigation the respondent had instituted an ejectment proceedings against the petitioner but his application was rejected by the Rent Controller in 1987. The respondent's appeal was pending against the dismissal order when be made a request to the appellate Court that it be allowed to be withdrawn and the same was thus withdrawn. Learned counsel further stated that before the withdrawal and during the pendency of the appeal the respondent had in fact filed another ejectment application against the petitioner out of which the present petition has arisen. This application was resisted by the petitioner on various grounds, inter alia, one of res judicata regarding the determination ‑of the issue of relationship of landlord and tenant between the parties. The plea being that although the appeal filed by the respondent was not decided on merits and it was withdrawn without the permission of the Court a fresh application would be barred.

3. One of the considerations which weighed with the High Court in refusing the relief to the petitioner in its Constitutional Writ jurisdiction can be culled out from the following resume of the proceedings before the Rent Controller and their effect on appeal filed by the present petitioner in the present round of litigation:

4. "In vi‑‑w of the aforesaid statements of the parties, the learned Rent Controller visited the spot alongwith a designer and thereafter accepted the ejectment application and ordered eviction of the petitioner vide order dated 21‑5‑1989.

5. The petitioner feeling aggrieved with the aforesaid order, filed an appeal which was, however, dismissed by the learned Additional District Judge, vide his judgment dated 6‑3‑1990 on the ground that the order of the learned Rent Controller was passed on the proposal of respondent No.3 herein, which was accepted by the petitioner herein, and the learned Rent Controller passed the impugned order after visiting the spot at the request of the parties, to which no exception can be taken."

6. With regard to the foregoing aspect the High Court observed that the proposal made by the landlord/respondent was voluntarily accepted by the petitioner notwithstanding the specific objection taken by him as to the maintainability of the second ejectment application in view of the provisions contained in section 14 of the Ordinance. The petitioner having acquiesced into passing of the impugned order cannot be permitted to resile from the same. Accordingly, the appellate order was not interfered with in the exercise of the Writ jurisdiction of the High Court.

7. The argument of the learned counsel for the petitioner that the proposal and acceptance were not properly recorded by the Rent Controller was also examined by the High Court with the verdict going against the petitioner. In so far as the treatment of the foregoing aspect of the case by the High Court in the exercise of its Writ jurisdiction is concerned, no exception can be taken as it is purely a discretionary jurisdiction and in the circumstances of this case the petitioner was not entitled to discretionary relief on account of his own conduct.

8. However, we have also examined the technical plea raised by the learned counsel with regard to the riling of the fresh ejectment application. When questioned. as to whether the respondent was within his right to withdraw the appeal when he had already instituted a fresh application for eviction and it would have been a futile exercise to pursue the appeal also, the learned counsel answered in the affirmative stating that it. was the right of the respondent to withdraw the appeal but he contended that he had failed to seek permission for filing fresh application, therefore, the same was barred. When asked to support this plea by any law learned counsel candidly conceded that he cannot rely on the C.P.C. because the relevant part thereof in this behalf is not applicable to the proceedings before a Rent Controller.

9. That being so, he could not advance the point any further except his remark that law needs to be rationlised in this behalf. We do not agree with him even with regard to the so‑called rationlisation. In so far as the nature of the proceedings before a Rent Controller are concerned, the same having been saved from the application of the provisions of the C.P.C. This approach has succeeded and stood the test of experience.

10. Looked at from whatever angle, as discussed above there is no force in this petition. Leave to appeal accordingly, is refused.

11. M.BA./M‑1518/S ????????????????????????????????????????????????????????? ????????????????????? Leave refused.