MUHAMMAD AKRAM Versus NAWAB DIN

ORDER

Through this constitutional petition, Muhammad Akram petitioner wants this Court to declare orders, dated 17‑3‑1987 of Rent Controller, Liaquatpur and, dated 16‑7‑1987 passed by the learned Additional District Judge IV, Rahimyar Khan to be without lawful authority and of no legal effect.

2. The facts leading to this petition briefly are that on 18‑9‑1985, Nawab Din respondent No. 1 filed application before the Rent Controller Liaquatpur for the ejectment of the petitioner and Muhammad Younas respondent No. 2 from the shop constructed on Plot No. 11, Ittehad Chowk, Liaquatpur. The application was contested and the relationship of landlord and tenant between the parties was denied. On 15‑12‑1986 Vie parties agreed to the reference of the dispute to a referree. Ch. Masood Ahmad was appointed as a referee with the consent of the parties. On receipt of the report submitted by the aforesaid referee, the learned Rent Controller accepted the application for ejectment and directed the petitioner and Muhammad Younas to vacate the shop within 15 days. Feeling aggrieved thereby the petitioner filed appeal which was entrusted to the Additional District Judge IV, Rahimyar Khan. On 16‑3‑1987, Nawab Din respondent stated before the learned Appellate Court that:‑

Thereafter, Muhammad Ismail, Advocate counsel for Muhammad Akram petitioner/ appellant therein made following statement:

On this the learned Additional District Judge IV accepted the appeal, set aside the order, dated 17‑3‑1987 of the Rent Controller and remanded the case to the learned Rent Controller and remanded the case to the learned Rent Controller. In para. 2 of the judgment, the learned Additional District Judge, stated:

"In view of the statement of the parties, the appeal is accepted, the impugned order is set aside and the case is remanded to the Court of learned Rent Controller with the direction that the referee appointed in this case be asked to give his report afresh after giving his findings on the contention raised in the ejectment petition and the written reply. The parties are directed to appear before the learned Rent Controller on 25‑7‑1987 for further proceedings."

3. The learned counsel for the petitioner has now questioned the legality of the aforesaid order passed with the consent of the parties and the authority of the learned Additional District Judge to pass the same. He submitted that the petitioner was not present before the learned Additional District Judge IV when Muhammad Ismail Advocate, his counsel gave consent to the acceptance of the appeal and the remand of the case; that Muhammad Ismail, Advocate was not authorised to make such statement before the Court; that the learned Additional District Judge‑I before whom the appeal was presented, was not competent to entrust it to the learned Additional District Judge‑IV and that in these circumstances that R.F.A. No. 39 of 1987 filed by one Javed Iqbal against the judgment and decree in a suit for specific performance of the contract in respect of Plot No. 11 on which the disputed shop was raised against Nawab Din respondent and others and appeal against judgment and decree in a suit for perpetual injunction in respect of the same shop filed by Nawab Din against the petitioner, the aforesaid Javed Iqbal and others were pending adjudication before the High Court and the learned Additional District Judge Rahimyar Khan respectively, the learned Additional District Judge, IV should not have passed the impugned orders and should have decided the appeal in accordance with the observations mad by the Hon'ble Supreme Court in case Rehmat Ullah v. Ali Muhammad and others reported as 1983 S C M R 1064.

4. I have considered the submissions made by the learned counsel for the petitioner with care. I have not been able to persuade myself to agree with him. I find that the impugned order, dated 17‑3‑1987 of the Rent Controller having been set aside vide impugned order, dated 16‑7‑1987 passed by the learned Additional District Judge, does not hold field and as such the question of declaring the same as illegal does not arise. The order, dated 16‑7‑1987 was passed with the consent of the learned counsel for the petitioner. There is nothing on the record to show that Muhammad Ismail the learned counsel for the petitioner was not authorised to make statement on behalf of the petitioner. The parties had entered into agreement with their own free will for the disposal of the appeal in the manner in which the same has been disposed of by the learned Additional District Judge vide impugned order, dated 16‑7‑1987 and as such it does not lie in the mouth of the petitioner to question the legality of the order and the authority of the learned Additional District Judge to pass the same. The petitioner cannot be allowed to turn round and plead that his counsel had no right to consent and the learned Additional District Judge could not act on the consent given by his counsel. The doctrine of approbation and reprobation comes into play where party enters into an agreement of its own free will for disposal of a matter in a particular manner. The petitioner had not questioned the authority of the learned Additional District Judge‑I to entrust the appeal to the learned Additional District Judge‑IV when the impugned order was passed by the latter. Instead he had surrendered to his jurisdiction and the manner of the disposal of the appeal. I further find that after remand of the case by the Additional District Judge to the Rent Controller, the petitioner had moved application for the disposal of the case in accordance with the observation made by the Hon'ble Supreme Court in case reported as 1983 S C M R 1064 which is still sub judice.

For what has been said above, I do not see any justification to interfere with the impugned orders in exercise of the Constitutional jurisdiction of this Court. The petition is, therefore, dismissed in limine.

H . B . T . / M‑506/ L Petition dismissed.