' In this writ petition orders dated 30-3-2000 and 28-6-2000, respectively passed by the learned Rent Controller, Multan and the learned District Judge, Multan are assailed as illegal, against facts without lawful authority and of no legal effect.
2. Brief facts giving rise to the petition are that on 18-2-1999 Ghulam Hassan Khan (respondent No,3) filed an ejectment petition against Sarfraz Ahmad Khan (writ petitioner) for his eviction from House No,213/J, Shah Rukne Alam Scheme, Phase II, Multan on the grounds of default in payment of rent, bona fide personal need and committing of acts by the writ petitioner which had impaired materially the value and utility of the, premises.
3. Counsel for the writ petitioner appeared before the Rent Controller on 25-5-1999 and sought an adjournment for filing reply to the ejectment petition. However, when reply was not filed despite four opportunities, defence of the writ petitioner was struck off by the Rent Controller on 8-7-1999.
Thereafter, evidence of respondent No,3 (landlord) was recorded in presence of Mian Ashfaque Ahmad, Advocate counsel for the petitioner. The case was thereafter fixed for final arguments when an application was moved by the petitioner for setting aside ex parte proceedings against him. The said petition was opposed by 'respondent No,3, and was eventually dismissed on 30-3- 2000. On the same day, relying on the evidence produced by respondent No,3, the ejectment petition was accepted and the petitioner (tenant) was directed to hand over vacant possession of the premises to respondent No,3 within one month.
4. Aggrieved thereby the petitioner filed an appeal before the learned District Judge, Multan assailing both the aforesaid orders of the Rent Controller; however, the appeal was also dismissed on 28-6-2000 as aforesaid.
5. Learned counsel for the petitioner, while assailing the impugned orders of the learned Rent Controller and the learned District Judge urged that:-
(i) Petitioner is in possession of the premises in his own right as owner thereof and relationship of landlord and tenant never existed between the parties.
(ii) Petitioner had never engaged Mian Ashfaque Ahmad, Advocate as his counsel and the power of attorney available on record of the Rent Controller allegedly submitted by Mian Ashfaque Ahmad, Advocate does not bear the signatures of Mian Ashfaque Ahmad,' Advocate and signatures of the petitioner on the said document are not identical with his genuine signatures .
(iii) In fact fraud was committed with the petitioner by respondent No,3, because according to the order-sheet, presence of petitioner's counsel is marked on various dates of hearing from 25-5-1999 to 30-10-1999 and even on the date when evidence was recorded by the Rent Controller but cross- examination was not conducted on the witnesses produced by respondent No,3, by the petitioner's counsel hence it can be easily inferred that fraud was committed. In this behalf an affidavit of Mian Ashfaque Ahmad, Advocate is also annexed with the writ petitioner as Annexure "E/2".
(iv) Relationship of landlord and tenant between the petitioner and respondent No,3, was not proved as no rent deed was produced and in the absence of rent deed, Rent Controller should have decided the issue against respondent No,3, to get his title established from Civil Court before seeking ejectment; hence for the said reason also the impugned orders are not sustainable.
(v) Respondent No,3, had claimed as landlord on the basis. Of having purchased the premises from the petitioner but he failed to establish the factum of purchase and could not prove that he was owner of the premises; and that
(vi) Respondent No,3, did not submit any written statement to controvert the facts stated in the writ petition, therefore, he would be deemed to have admitted correctness of the facts stated in the writ petition.
6. In support of his arguments learned counsel for the petitioner placed reliance on the following authorities:--
(a) Hag Nawaz and others v. Province of Punjab and others 1997 MLD 299.
(b) Muhammad Lehrasab v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338.
(c) Assistant Commissioner and others v. Abdul Ghaffar and others PLD 1994 Pesh.
161.
(d) Haji Usman v. Haji Shafiur Rehman 1988 CLC 1443 (Karachi); and
(e) Haji Faqir Muhammad v. Hazartullah 1989 CLC 252 (Karachi).
7. Syed Athar Hussain Bokhari, Advocate appearing on behalf of respondent No,3 had, during his arguments, fully supported the, impugned orders.
8. Arguments heard; writ petition and all its Annexures perused.
9. Adverting to the above first contention of the learned counsel for the petitioner, it may be observed that there was virtually nothing on record on the basis of which the Rent Controller or the Appellate Court could have inferred that the petitioner was the owner of the premises.
10. Referring to the above-stated second submission of the learned counsel for the petitioner, it may be observed that the only ground taken by the petitioner in his application for setting aside ex parte proceedings was that respondent No,3 in collusion with the field staff had procured the ex parte proceedings against the petitioner on the basis of incorrect report of the field staff.
'In the said application he did not allege that Mian Ashfaque Ahmad, Advocate who had been appearing on his behalf before the Rent Controller and had been representing him, was not engaged by him or that power of attorney submitted by the said Advocate was not signed by the said Advocate and that signatures on that power of attorney purporting to be his signatures were forged.
'According to record the petitioner was represented before the Rent Controller by the said.
Advocate. Evidence of respondent No,3 was also admittedly recorded by the Rent Controller in presence of the said Advocate. Presumption of correctness is attached to the judicial proceedings and judicial record. Since the only ground taken up by the petitioner in his application for setting aside the expanse proceedings was irregularity in the service of summons hence even if it be assumed that the said allegation was correct and summons were not served on the petitioner, that fact per se was not a good cause for setting aside the ex parte proceedings because non-service of summons was not of any significance in view of the fact that petitioner was represented in the Court by an Advocate, who after obtaining four adjournments for filing reply to the rent petition defaulted in filing the same where after defense A of the petitioner was struck off. The matter did not end there but evidence of respondent No,3 was also recorded in presence of the petitioner's counsel. It is not alleged in the writ petition that the Rent Controller had not allowed the petitioner's counsel to cross-examine the witnesses of respondent No,3. If the counsel chose not to cross- examine the witnesses in spite of opportunity provided to him, no inference of fraud could have been drawn by that fact of not diligently conducting the case as was alleged by the petitioner's counsel.
11. As the petitioner was represented in the rent proceedings and since there was no allegation in the application for setting aside the ex parte proceedings, that the said counsel was not appointed by the petitioner or that power of attorney submitted by the council did not B contain signatures of the counsel and the signatures of the petitioners on that power of attorney were forged, the said grounds could not have been considered by the Rent Controller while disposing of the application for setting aside the ex-pane proceedings
12. The single ground mentioned in the petition as aforesaid, was obviously not at all a good ground for setting aside ex parte proceedings hence no illegality was committed by the Rent Controller in dismissing the said application.
' So far as the non-signing of power of attorney by the council is concerned, it is not of much significance because the said counsel had been appearing before the Rent Controller as counsel for the petitioner hence any omission on his part in signing the power of attorney was of no C legal consequence when the said document contained signatures of the petitioner which were not disputed in his application moved before the Rent Controller for setting aside the ex-pane proceedings.
13. Reverting to the above-stated third argument of the petitioner's counsel, it has already been observed in the preceding paragraphs that fact of not cross-examining the witnesses by a counsel does not lead to an inference or conclusion that fraud was committed by the opposite-party.
' So far as the affidavit of Mian Ashfaque Ahmad, Advocate is concerned, it is worth notice that this document Annexure "E/2" was neither submitted before the Rent Controller nor before the Appellate Court. For the first time it has been produced in this writ petition. A perusal thereof shows that it does not bear the requisite certificate of the Oath Commissioner certifying that contents of the said document were stated on oath or solemn affirmation before him by the deponent and that the deponent was either personally known to him or was identified before him by a person known to him (Oath Commissioner).
14. Without the said certificate, the so-called affidavit Annexure "E/2", cannot be deemed as an affidavit in the eye of law and has got no legal value. Mian Ashfaque Ahmad, Advocate did not appear before this Court to verify the said document. Version of the petitioner regarding not appointing Mian Ashfaque Ahmad, Advocate, appears to be an afterthought which was coined at the time of filing appeal. At that stage it was not alleged that signatures on the power of attorney purporting to be that of the petitioner were forged nor affidavit of Mian Ashfaque Ahmad, Advocate was produced. Version regarding the affidavit and the allegation that signatures of the, petitioner on the power of attorney are forged has been narrated for the first time in the writ petition.
15. Reverting to the above 4th and 5th submissions of the learned counsel for the petitioner, it may be observed that copy of evidence recorded by the Rent Controller is not annexed with the writ petition hence no observation can be given by this Court on the quality or quantity of evidence which was produced at the trial by respondent No,3, before the Rent Controller.
' A perusal of impugned judgment reveals that nothing was produced on record by the petitioner in support of his contentions which have been raised in this writ petition. In this writ petition it is admitted that defence of the petitioner was struck off for not filing reply to the rent petition and that Mian Ashfaque Ahmad, Advocate who had appeared on behalf of the petitioner before the Rent Controller had not cross-examined the witnesses produced by respondent No,3. It is, therefore, obvious that version of the petitioner now put forth before this Court regarding his title and denial of relationship, was not available on record of the Rent Controller hence in the absence of such material there was no occasion for the Rent Controller to have asked respondent No,3, to have his title established from the Civil Court before seeking eviction. Respondent No,3 was not supposed to prove his title in the ejectment petition, he had only to prove that respondent in that petition (writ petitioner) was his tenant and he was liable to be evicted on the grounds mentioned in the ejectment petition. The learned Rent Controller had accepted the ejectment application on the basis of evidence produced by IG respondent No,3.
16. Adverting to the last submission of the learned counsel for the petitioner, it may be observed that this writ petition is not admitted; only pre-admission notice was issued to the respondents in response whereof counsel for respondent No,3 appeared and sought permission to contest the same at the limine stage. He was allowed, to contest the petition at the limine stage, therefore, when the writ petition is yet at the limine stage there was no occasion of submitting written statement, hence the authority cited by the learned counsel for the petitioner viz. 1997 MLD 299 is not applicable. In 2001 SCMR 338 it is held that where District Court is final Appellate Court, if it reverses finding of trial Court on ground not supported by material on record, High Court can interfere with it by issuing writ of certiorari to correct, wrong committed by the Appellate Authority.
In the present case, learned District Judge has not reversed the finding of the trial Court but has affirmed the same hence the authority is distinguishable. In rulings referred at Serial Nos.(c) to (e), viz: ' PLD 1994 Pesh. 161, 1988 CLC 1443 (Karachi) and 1989 CLC 252 (Karachi).
' Matters were dealt with by the High Court as an Appellate Court and not while exercising Constitutional jurisdiction. Powers of High Court in Constitutional jurisdiction are not analogous to those exercised by it in appeals. High Court cannot sit as a Court of appeal in the exercise of Constitutional jurisdiction which can only be exercised if the lower Court has exceeded its jurisdiction or acted without jurisdiction.
17. A perusal of impugned orders would show that they are reasonable and by no stretch of imagination they can be said to be arbitrary or fanciful.
18. Rent Controller had jurisdiction to decide an ejectment petition under the Rent Restriction Ordinance and appeal against order of Rent Controller is provided under the law before the District Court. The petitioner had himself invoked the appellate jurisdiction of the learned District Judge, hence after failing there it does not lie in his mouth to say now that order passed by the Appellate Court was without lawful authority. By no stretch of imagination it can be said that orders passed by the Rent Controller on the rent petition and the order passed by the learned District Judge, on appeal against order of Rent Controller, are without jurisdiction, or without lawful authority.
' For the reasons stated above, the writ petition is devoid of any I J merit, it is accordingly dismissed.