1985 PLP 106 (SCMR)

Date of hearing: 10th September, 1979. ASLAM RIAZ HUSSAIN, J.-- This is, a review petition against an order of this Court, dated 4th of August, 1979 whereby it dismissed the petitioners' Civil Petition for Special Leave to Appeal No.484 of 1979. The aforementioned Civil Petition for Special Leave to Appeal was directed against the judgment of the Lahore High Court dismissing petitioners' writ petition vide order, dated 25th of July, 1978. The facts leading to the aforementioned Civil Petition for Special Leave to Appeal were that the respondent (Lt.-Col. M. M. Qureshi) landlord filed an application under section 17 of the Cantonment Rent Restriction Act, 1963 for the petitioners' ejectment from his bungalow on Adamji Road, Rawalpindi, inter alia, on the ground of requirement of the premises for personal use. The Rent Controller dismissed the application, whereupon the respondent filed an appeal which was heard by the learned Additional District Judge, Rawalpindi. The petitioners contested the appeal but the same was accepted and the order of the Rent Controller was reversed by the learned Additional District Judge vide his judgment, dated 4th of May, 1978. Being aggrieved the petitioners filed a writ petition against that judgment in the Lahore High Court, inter alia, on the ground that the learned Additional District Judge had no jurisdiction to entertain and decide the appeal in question. The writ petition was dismissed in limine by a learned Single Judge of the High Court vide judgment, dated 25th of July, 1978. The petitioners then filed a civil petition for special leave to appeal against the said judgment. The same was, however, dismissed on 4th of August, 1979 by this Court. The main reason for which the petition was dismissed was that the petitioners had not challenged the jurisdiction of the learned Additional District Judge; had participated in the proceedings and had contested the appeal and that they cannot, therefore, be heard to be saying that his judgment was without jurisdiction. The relevant portion of the order is reproduced below:- "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself. This principle was also affirmed in Syed Alam Hussain and others v. Syeda Shamim Akhtar and another PLD 1974 S C 100, Mst. Sartaj Begum v. Karachi Municipal Corporation P L D 1962 Kar. 785 and Sardar Muhammad Ayub v. Pakistan 1969 S C M R 96 (2)." Learned counsel for the petitioners submitted that in fact, at the relevant time, he was not even aware that the learned Additional District Judge had no jurisdiction and it is for this reason that he had not taken objection against his hearing the appeal. This ground was urged by the petitioners' counsel before this Court even at the time of hearing of the petition and in that connection we had observed that: "In the instant case, the learned Judge in Chambers in the exercise of the discretion vested in him under the law had declined to interfere with the impugned order. On the facts of this case he observed that there was no averment in the grounds of the writ petition that the petitioners were unaware about any lack of jurisdiction vested in respondent No.2 to hear the appeal before him." The learned counsel for the petitioners submits that this ground had in fact been taken in the writ petition and the underlined portion of the above noted observation is not correct. We have checked up the grounds of writ petition placed on the record and find that no ground alleging that at the relevant time the petitioners were not aware of the lack of jurisdiction of the learned District Judge, had been taken in the writ petition. There is, therefore, no substance in this contention. In any case no ground for review, as mentioned in Order XXVI, Supreme Court Rules, 1956, has been made out. The review petition is consequently dismissed as being without merit. M.Z.M. Review petition dismissed.