2004 PLP 419 (YLR)

3. Respondent No.3 filed another application under section 144, C.P.C. for restoration of possession of the disputed shop which was accepted on 2-6-2003. The petitioner preferred two appeals against the orders dated 18-2-2002 and 2-6-2003 respectively before the learned Additional District Judge, Lahore, who vide consolidated judgment dated 1-11-2003 dismissed both the appeals.

4. The learned counsel for the petitioner has contended that the trial Court while passing the impugned order dated 18-2-2002 for setting aside the order dated 31-1-2001 had not framed the issues and also did not provide the opportunity of recording evidence of the petitioner. He has relied upon the case of WAPDA through Chairman, Lahore v. Muhammad Sanaullah Khan and another 2003 CLC 737.

5. The learned counsel has further contended that the order, dated 18-2-2002 was not communicated to the petitioner or his counsel therefore he could not file the appeal within time and the order passed in absence of the petitioner is void and a nullity in the eye of law and no limitation is required against the said order. Also contended that respondent No.3 has taken contradictory stand, which is sufficient to reject his version.

6. I have heard the arguments of learned counsel for the petitioner and perused the record.

7. The petitioner had filed the appeal against the order dated 18-2-2002 whereby the learned Rent Controller/Civil Judge accepted the application filed by respondent No.3 under Order IX, Rule 13, C.P.C. The appeal filed by the petitioner was hopelessly barred by time, which was filed on 6-2-2003. Alongwith the appeal petitioner had moved an application for condonation of delay under section 5 of the Limitation Act with the plea that he had gained knowledge about the impugned order on 5-6-2003 and his learned counsel was also unaware of the said order.

8. From the perusal of the record it reveals that the application under Order 9, Rule 13, C.P.C. filed by ,the respondent No.3 had been adjourned in presence of the parties and for hearing of arguments on 18-2-2002. The said order had been passed in presence of learned counsel for the parties and after hearing their arguments. From the impugned order dated 18-2-2002 it is evident that counsel for the parties were present. The relevant portion of the said order is as under:-- `Present:

Counsel for the parties. Arguments heard. Record perused.' It is manifestly clear from the above order that the parties were present on the said date when the impugned order dated 18-2-2002 had been passed. The `appeal was filed on 6-6-2003, which was barred by limitation and further that the Order 9, Rule 13, C.P.C. is not an appealable order under Order 43, Rule 1, C.P.C. The application under Order 9, Rule 13 for setting aside the ex parte decree, if rejected by the Court is appealable order but not the acceptance of the application. Since, the' order impugned was not appealable, therefore, it cannot be treated as appellate order. If for the sake of argument the said order is treated as an order passed in revision, the requirements of section 115, C.P.C. have to be complied with and the revisional petitioner has to bring his case within the provision of section 115, C.P.C. The learned counsel for the petitioner has not been able to point out illegality or material irregularity in I exercise of jurisdiction by respondent No. 2, neither he has been able to point out that the impugned order was void, without jurisdiction or perverse.

9. A writ against a revisional order could not be maintainable if it is not in consonance with the dictum laid down by the superior Courts in the cases of Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322, Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65, Rana Mamoon Rasheed v. Kokab Noorani Okarvi and 4 others PLD 1999 Karachi 257 and Noor Muhammad v. Sarwar Khan and 2 others C PLD 1985 Supreme Court

131. In these cases the honourable Judges of the apex Court had observed that 'where the Court has the jurisdiction to decide the matter it can do so rightly or wrongly

Mere fact that decision of a Court on a question of fact or law was not correct, did not necessarily would be without lawful authority'.

10. For the foregoing reasons, this writ petition being devoid of force is dismissed in limine. H.B.T./Z-214/L Petition dismissed.