2008 PLP 130 (SCMR)

RANA BHAGWANDAS, J.

Petitioner seeks leave to appeal against Sindh High Court order dated 21-10-2005 dismissing his constitutional petition calling into question concurrent findings of fact arising out of ejectment application on the ground of default in payment of rent.

2. Respondent No.3 filed ejectment plea for eviction of the petitioner from the demised premises on the ground of default. Petitioner in reply statement challenged the relationship of landlord and tenant between the parties. On his part the landlord filed his affidavit in evidence along with a large number of documents in support of his case. He was cross-examined at length but no affidavit in evidence whatsoever was filed by or on behalf of the petitioner despite maximum indulgence shown by the Rent Controller. On 7-4-1999 counsel for the petitioner appeared before the Rent Controller and prayed for dispensing with his services as the petitioner was not keeping in touch with him for instructions in the ejectment matter. Rent Controller was thus left with no choice but to decide the case on the basis of landlord's evidence. Consequently he directed petitioner's ejectment vide order dated 30-4-1999.

3. Petitioner instead of preferring statutory appeal against the ejectment order filed an application under Order IX, rule 13, C.P.C. long time after passing of the ejectment order which was dismissed on 17-5-2000. Controller according issued writ of possession in the execution proceedings.

4. He challenged the order dated 17-5-2000 passed in execution proceedings whereby writ of possession was issued against him. This appeal after contest was dismissed by an Additional District Judge vide judgment dated 6-5-2003.

5. Petitioner being dissatisfied with the order of the Rent Controller passed in execution as well as the order passed in F.R.A. invoked constitutional jurisdiction of the High Court but without any success, hence this petition.

6. We have heard Mr. Akhlaq Ahmad Siddiqui, learned Advocate -on-Record for the petitioner and gone through the impugned orders as well as the record. On perusal of the record we are firmly of the opinion that the petitioner has been negligent in defending the eviction plea from the day one. While he disputed the ownership of the premises by respondent No.3 he did not appear in the witness box to controvert the statement of the landlord with the consequence that the evidence of the landlord on oath consistent with his pleadings remained unchallenged and un-rebutted.

7. Learned Advocate-on-Record vehemently argued that respondent No.3 was neither the owner nor the landlord of the premises, therefore, his application for eviction was not maintainable before the Rent Controller. This question of fact has been finally determined by the learned Controller having jurisdiction in the matter which order was not challenged in appeal. Indeed it attained finality and cannot be called into question in this petition. Constitutional petition was, in the circumstances rightly dismissed and the High Court was not expected to enter into this question of fact as the petitioner has no right, interest or title to challenge the title of the landlord in eviction proceedings without surrender of the possession.

8. No other question of law has been urged at the bar "with the result that we find no ground for the grant of leave against the impugned order of the High Court which is unexceptionable. Consequently the petition is dismissed and leave refused. H.B.T./M-41/SC Leave refused.