1983 PLP 1082 (SCMR)

M. I Memon, Advocate Supreme Court and Muzaffar Hassan, Advocate on Record for Petitioner. Akram Ansari Advocate Supreme Court and M. S. Ghaury, Advocate‑ on‑Record for pate of hearing : 11th August, 1983, ZAFAR HUSSAIN MIRZA, J.‑Sami Ahmad Jafri, the petitioner herein who is the tenant of respondent No. 3, Mrs. Mumtaz, in respect of a bungalow in Defence Housing Society Karachi, seeks to call in question the judgment of a Division Bench of the Sind High Court, dated 20‑1‑1983 dismissing his constitutional petition challenging the order of his eviction by the IIIrd Senior Civil Judge‑cum‑Rent Controller, Karachi. The proceedings against the petitioner were commenced in the Court of the IIIrd Senior Civil Judge‑cum‑Rent Controller, Karachi, under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 and culminated in an order of ejectment. This order was maintained by the appellate Authority and the appeal filed by the petitioner was dismissed. The respondent thereafter, filed an execution application, in which the petitioner appeared and resisted the execution but his objections were rejected and a writ of ejectment issued. Thereafter, the petitioner filed a further application questioning the jurisdiction of the Rent Controller who passed the order of ejectment, on the ground that the premises in question being located within the territorial jurisdiction of the Rent Controller Cantonment Board, Karachi, the order was null and void. This application was, however, dismissed on 15‑12‑1981. An appeal from this order having been dismissed by the Additional District Judge, Karachi, the petitioner filed the writ petition before the High Court which was dismissed by the impugned judgment in this petition. The learned Judges of the High Court referred to another plea raised by the petitioner in the execution proceedings, to the effect that the disputed premises were agreed to be purchased by the husband of respondent No. 3 and that a suit for specific performance of this alleged agreement was pending on the original side of the High Court, In refusing to grant relief to the petitioner, the High Court, however, adopted reasons which are summarized in the following passage of the judgment "In our view in a fit case this Court may decline to exercise discretionary writ jurisdiction in case where it will cause injustice instead of fostering the cause of justice. Apart from the fact that the question whether the bungalow was situated within the jurisdiction of the learned Rent Controller or not is a disputed question of fact and, therefore, cannot be determined by this Court in a writ petition, we are not inclined to exercise writ jurisdiction. Admittedly the rent case was filed in 1970 which and the other proceedings arising therefrom proceeded on the assumption up to 13‑12‑1981 that the learned Rent Controller had the jurisdiction. The petitioner after expiry of nearly 11/12 years wishes to reopen a case which stands finally disposed of against him. It will not be in our view just and proper." In support of this petition the sole contention of Mr. Ibrahim Memon Advocate was that in view of the evidence consisting of a certificate, dated 24‑8‑1982 by the Executive Officer Clifton Cantonment that the premises in question are situated within the limits of Clifton Cantonment, Karachi, it is patently clear that the order of ejectment passed by Rent Controller under the provisions of Sind Rent Restriction Ordinance was with out jurisdiction and coram non judice. After bearing the learned counsel, we are, however, not impressed with his argument. He has candidly conceded that throughout the proceeding before the Rent Controller as well as the appellate Authority the question of territorial jurisdiction of the Rent Controller was not raised and the objections to this effect was raised only after the disposal of the execution proceedings, In the circumstances the High Court was right that the petitioner, having stood by and having availed himself of a decision on merits, cannot permitted to invoke the discretionary relief in the writ jurisdiction on a plea not raised before the appropriate subordinate forum of the appropriate stage, This was rightly held to be essentially a question of fact not fit for investiga tion in the constitutional jurisdiction. The decision of the High Court proceeds upon well‑established principles of law and is not open to the exception on the ground urged. The petition, therefore, fails and is accordingly dismissed. M. Z. M. Petitions dismissed.