1984 PLP 1889 (CLC)

‑‑‑ Art. 9‑Sind Rented Premises Ordinance (XVII of 1979), S. 15‑Civil Procedure Code IV of 1900, S. 47 & O. XXXIX, rr. 1 & 2‑Petitioners filing suit under S. 47 challenging decree of ejectment obtained by fraud and misrepresentation by showing respondent as owner of house belonging to his wife and filing application under O. XXXIX, rr. 1 & 2 alongwith plaint claiming ad interim injunction for staying writ of possession Application filed under O. XXXIX, rr. 1 & 2 dismissed‑Petitioners filing constitutional petition against order of refusal of ad interim injunction‑Petitioners not producing any documentary evidence in support of his plea also not seeking alternative remedy by filing appeal or revision Held, in absence of jurisdictional error and when petitioner having elected to pursue his remedy by filing suit, he could not invoke constitutional jurisdiction of High Court‑Petition dismissed. JUDGMENT HAIDER ALI PIRZADA, J.

‑Saeed Mian Ansari and another petitioners have filed this petition under Article 9 of the Provisional Constitution Order 1981, for a declaration that the order, dated 30‑7‑1981 passed by the IXth Civil Judge and Rent Controller, Karachi, in Rent Case No. 942 of 1977 Aqueel Ahmad Siddique v. Saeed Mian Ansari and another, is without lawful authority. Brief facts are that the respondent No. 2 claimed to be the landlord of the petitioners in respect of house on Plot No. R‑103, Block 18, Federal `B' Area, Karachi. He sought the eviction of the petitioners on three grounds of personal use, and the occupation of the respondent No. 2 sublet the tenement in question to some one else, and also default. He obtained an order of eviction from the Rent Controller on the ground of personal requirement and subletting on 30‑7‑1981. The petitioners filed appeal in this Court which was also dismissed on 24‑5‑1983. The petitioners sought leave to appeal against the order of this Court but it was refused by Supreme Court. On 11‑8‑1983 the petitioner No. 2 went to K. D. A. and found that actually respondent No. 2 is not the owner of the said house but his wife is the actual owner.

3. The respondent No. 2 filed Execution Application No. 71 of 1983 and sought writ of possession. The petitioners presented an application under section 47 of Code of Civil Procedure praying therein that the respondent No. 2 has obtained ejectment order by fraud and misrepresentation and as such the ejectment order, dated 30‑7‑1981 was nullity in the eye of law and is null and void and unenforceable. The learned Civil Judge and Rent Controller by his order dated 25‑8‑1983 dismissed the application which is Annexure `D' to the petition.

4. The petitioners have instituted a civil suit being Suit No. 3196/1983 in the Court of VIIth Civil Judge, Karachi, taking up all the fresh grounds on which application under section 47, C. P. C. was filed. Alongwith the plaint they also filed an application under Order XXXIX, rules 1 and 2, C. P. C. claiming an ad interim injunction staying the writ of possession. The learned Civil Judge rejected the application.

5. Mr. Faizanual Haq, learned counsel for the petitioners, has urged before us that the respondent No. 2 has obtained ejectment order, dated 30‑7‑1981 by fraud and misrepresentation as he is not the real owner of the house in question. The house belongs to his wife. We find no force in his submissions. He has not produced any documentary evidence to this effect. He has not even produced the copy of the tenancy agreement. The petitioners have preferred alternate remedies. They have instituted civil suit being Suit No. 3196/1983 in the Court of VIIth Civil Judge which is still pending. The petitioners can prefer an appeal and revision against the dismissal of the injunction application. Apart from this, the petitioners had also filed an application under section 47, C. P. C. which application was rejected by an order dated 25‑8‑1983.

6. In this petition neither any objection to the abuse of jurisdictional power is taken nor an illegality on the face of record is alleged. The main grievance against the respondent No. 2 is that he obtained ejectment order by fraud and misrepresentation.

7. In the absence of any jurisdictional error, and specially where a person has elected to pursue his remedy by filing a suit for declaration, which is still pending, they cannot be permitted to invoke constitutional jurisdiction of this Court. For these reasons by a short order, dated 25‑8‑1983, the petition was dismissed in limine. M B. A. Petition dismissed.