2006 PLP 1881 (CLC)

MIAN HAMID FAROOQ, J.

The petitioner instituted the ejectment petition seeking the eviction of the respondent from Shop No.21, before the learned Rent Controller, Lahore on the grounds of his personal need and default in payment of rent. The respondent did not attend the proceedings and ex parte proceedings were taken against him on 10-11-2004. He, then tiled an application for setting aside the ex parte order, which was contested by the petitioner, and ultimately the learned Rent Controller dismissed the said application, vide order, dated 3-1-2005. The learned Rent Controller, after recording petitioner's evidence passed the ex parte ejectment order against the respondent, vide order, dated 18-2-2005. The respondent assailed the said decision, before the Appellate Authority, through the appeal, which was allowed by the learned Additional District Judge, respondent's application for setting aside the ex parte proceedings was accepted, ex parte order, dated 10-11-2004 was set aside and the case was remanded to the learned Rent Controller to dispose of the ejectment petition on merits, vide impugned judgment dated 4-5-2005, hence the present constitutional petition which was instituted on 14-6-2005.

2. Learned counsel for the respondent has raised a preliminary objection that since the suit property is a shop and thus "non-residential building", therefore, the remedy of appeal was available to the petitioner, which was not filed therefore, the present constitutional petition is incompetent. Confronted with the said objection, learned counsel for the petitioner vehemently asserts that since the impugned order is a void order, therefore, there was no need to file the appeal and the constitutional petition is maintainable. He has relied upon Government of the Punjab through Collector,. Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others 2001 SCMR 209 and Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400.

3. I have heard the learned counsel and examined the available record. Admittedly, the present constitutional petition has arisen out of the ejectment petition, which relates to the eviction of the respondent from the shop in question, which is obviously a "non-residential building" as defined in Punjab Urban Rent Restriction Ordinance, 1959. A Section 15(6) of the Ordinance (ibid) provides that in case of "non-residential building" a person, aggrieved by the order passed on appeal by the Appellate Authority, may within 30 days from the date of such order prefer an appeal to the High Court. Undeniably, the petitioner, instead of availing the statutory remedy, provided under the law, after the lapse of period of limitation, filed the present constitutional petition. It has been held in the case reported as Syed Match Company Ltd. through Managing Director v. Authority under Payment of Wages Act A and others 2003 SCMR 1493 that a party had no discretion to ignore the provision of appeal and file the constitutional petition instead thereof. In view whereof, to my mind, the present petition is not maintainable and incompetent, as the petitioner failed to resort to the remedy of appeal available to him under the law.

4. Now coming to the judgments relied upon by the learned counsel for the petitioner in support of his contention that despite non-availing of remedy of appeal, the constitutional petition is competent. As regards the case of Government of Punjab, (ibid), the learned counsel for the petitioner could not demonstrate from the available record that how the impugned judgment, on the face of the record is illegal, void or it suffers from lack of jurisdiction. This judgment is of no avail to the petitioner. As regards the case of Farzand Raza Naqvi (supra), the Honourable Supreme Court of Pakistan has reiterated the settled principle that if remedy of appeal is available to a party under the statute, the constitutional jurisdiction of High Court cannot be invoked without availing such statutory remedy, however, it has been held that in exceptional circumstances or if it is a void order, then the constitutional petition can be entertained. There are no special circumstances in this case warranting the exercise of constitutional jurisdiction in the matter and as noted above, the learned counsel for the petitioner has not been able to point out that how the impugned order is a void order. The said judgment also does not advance the case of the petitioner.

5. Even if it be taken that the petition is maintainable, there is little' scope of interference in the impugned judgment. Perusal of the order-sheet manifests that the learned Rent Controller, on 8-10-2004, ordered that the respondent be served through publication in "Weekly Kehkeshan" for 28-10-2004 and although proclamation seems to have been published for 28-10-2004, yet no ex parte order was passed on that date. It was again ordered that proclamation be effected for 9-11-2004, however, it appears that no proclamation was made for 9-11-2004. Despite that the learned Rent Controller, on the next date i.e. on C 10-11-2004, proceeded to pass an ex parte order on the basis of proclamation made on 28-10-2004. I find from the record that no proclamation was made either for 9-11-2004 or for 10-11-2004, therefore, on 10-11-2004, no ex parte order could be passed. To my mind the learned Rent Controller on the basis of publication dated 28-10-2004, could not have passed ex parte order against the respondent. The learned Additional District Judge has adverted to every aspect of the case and rightly interfered in the matter. Additionally, the petitioner has not been prejudiced, by the impugned judgment as it has been directed that the case be decided on merits of the case.

6. In view of the above, the' present petition' is incompetent, not maintainable and devoid of merits as well, hence stands dismissed on both the counts. S.A.K./A-159/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.