1985 PLP 953 (CLC)

AJMAL MIAN, J--The petitioner through this petition has prayed for the following reliefs:- (i) Declare that the order dated 12-2-1980 and 18-8-1980 passed by the learned IIIrd Additional District Judge, Karachi, is without lawful authority and of no legal effect. (ii) Direct the IIIrd Additional District Judge, Karachi to re-admit the Rent Appeal No.219/77 of the petitioner and to decide the same on merit with due notice to the parties; (iii) Any other relief which this Hon'ble Court may deem fit and proper under the circumstances be also granted; (iv) Costs of the petition."

2. The brief facts leading to the filing of the above petition are that respondent No.l filed Rent Case No.2198/75 for ejectment on the ground of default. The above case was resisted by the present petitioner, but the same was allowed by an order dated 24-7-1977. The petitioner being aggrieved by the above order had filed F.R.A.No.219/1977, but the above appeal was dismissed in default on 21-3-1979. The petitioner filed an application under Order XLI, rule 19, C. P. C. for re-admission of the above appeal, but the same was also dismissed in default. After that the petitioner filed an application under section 151, C. P. C. for restoration of the above application under Order XLI, rule 19, C.P.C., but the above application was dismissed on 12-2-1980. The appellant thereafter filed Second Appeal No.353/80 in this Court, which has been dismissed by a learned Single Judge as time-barred as regard the main order, dated 21-3-1979 and not maintainable against the orders dated 12-2-1980 and 18-8-1980. The petitioner being aggrieved by the above orders has filed the present petition. A Division Bench of this Court on 17-9-1984 ordered the issuance of a pre-admission notice to respondent No.l and also a notice to the A.B., Sind about the maintainability of the petition. In response to which Mr. Hafiz Abdul Baqi has appealed for respondent No.l, whereas Mr. Ibrahim Memon, learned A.A..G. has appeared on Court notice. 3. (a) As regards the maintainability of the above petition, Mr.Malik Muhammad Saeed, learned counsel for the petitioner has vehemently urged that since the petitioner has exhausted all the remedies provided under the special law, the petitioner is entitled to invoke the Constitutional jurisdiction of this Court, in order to rectify the injustice done to him by not re-admitting first Rent Appeal No.219/77 which was dismissed in default for the reason that the Advocate for the appellant noted 31-3-1979 instead of 21-3-1979. (b) On the other hand Mr. Hafiz Abdul Baqi has contended that this Court cannot create right of appeal in the form of a writ petition in addition to the rights of appeals provided under the late W.P.U.R.R. Ordinance. 4.(a) Mr.Malik Muhammad Saeed has referred to the following cases:- (i) Muhammad Inam Khan and 24 others v. Province of Sind through Secretary, Department of Agriculture, Livestock and Fisheries and 4 others P L D 1980 Kar. 264, in which it was held by a Division Bench of this Court while dealing with the case under the West Pakistan Fisheries Rules, 1965 that the extraordinary jurisdiction of High Court can be invoked if other legal remedies are exhausted under the relevant law. (ii) Muhammad Nazir and another v. Ghulam Muhammad etc. P L D 1979 Note 45 at p.

31. In the above case, it was held by a learned Single Judge of the Lahore High Court that an appeal cam be converted into a writ petition and vice versa. (b) On the other hand Mr. Hafiz Abdul Baqi has cited the following cases. (i) - Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139, in which it was held by the Honourable Supreme Court that when a tribunal has jurisdiction to decide a particular matter, then it has jurisdiction to decide it rightly or wrongly and if the decision is incorrect it, does not render it without jurisdiction. (ii) Khawaja Ghulam Mustafa v. Mian Waqar Ahmad P L D 1980 S C

9. In the above case a distinction was made between an order passed on an appeal and an order passed in an appeal. It was held that the second appeal is competent in respect of order passed on appeal and not in respect of any order passed in an appeal. (iii) Muhammad Sharif v. Muhammad Afzal Sohail etc. P L D 1981 SC 246, - in which the Hon'ble Supreme Court while declining leave to appeal held that a tribunal having jurisdiction to decide a matter is competent to decide rightly or wrongly and mere fact that another conclusion was possible on evidence induced will not warrant the interference by the High Court in exercise of constitutional jurisdiction. It may be pointed out in the above case also the subject-matter of the petition for leave inter alia were the orders passed under the late West Pakistan Urban Rent Restriction Ordinance, 1959, which were first impugned in a constitutional petition, which was dismissed by the High Court. (iv) Abdur Rehman v. 'Haji Mir Ahmad Khan and another P L D 1983 S C

21. In the above case also the question before the Hon'ble Supreme Court in a petition for leave against the judgment of the High Court dismissing the writ petition was, whether a writ petition was competent against an order passed under the late W.P.U.R.R. Ordinance. The Supreme Court while declining leave to appeal held that since the adequate alternate remedy was provided under the relevant law a writ petition was not competent.

4. We are inclined to hold that the constitutional jurisdiction cannot be pressed into service simpliciter on the ground that a petitioner has exhausted all the remedies available under the relevant law. The object of providing constitutional jurisdiction is not to provide a relief in addition to a right of appeal or other adequate remedy provided for under the relevant law, but it was mainly designed to provide machinery to rectify jurisdictional defects i.e. to rectify an order passed without jurisdiction or in excess of jurisdiction or failure to exercise jurisdiction vested. In the present case, it can be denied that the learned First Appellate Court was competent in law to decide, whether to re-admit the appeal or not, which was dismissed in default on 21-3-1979. Even if we were to hold that the decision of the First Appellate Court on merits to decline re-admission of the appeal was erroneous and that this Court in the similar circumstances would have taken different view, that fact alone would not attract the constitutional jurisdiction of this Court as the ratio of the above Supreme Court cases referred to herein above in para. 3(b)(i) & (iii) on all fours is applicable to the instant case, namely, if a tribunal has jurisdiction to decide a matter, it has jurisdiction to decide it rightly or wrongly.

5. We are, therefore, of the view that the above petition has no merit, and, hence, it is dismissed in limine. However, we allow two months time to the petitioner from today to hand over the vacant possession of the tenement in question to respondent No.1. M.A.K. Petition dismissed.