Shahji Rehman Khan, J.--Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, that petitioner, Qayyum Nawaz son of Malik Haji Rabnawaz, has sought the indulgence of this Court to set at naught the judgments and decrees dated 7.10.2004 passed by the learned Civil Judge-II/Rent Controller D.I. Khan in favour of Respondent No, 1 against the petitioner which was affirmed in appeal by the learned Additional District Judge-I, D.I. Khan vide order dated 12.2.2005.
2. Facts of the case giving rise to this petition in brief are that Mst. Zubaida Bibi, Respondent No, 1, had sought for eviction of Qayyum Nawaz, son of Shah Nawaz, Respondent No, 2, through an application filed under Section 13 of the Rent Restriction Ordinance, 1959, in the Court of Civil Judge-II/Rent Controller, from the suit house situated in Chah Peepal Wala, Darban Road, D.I. Khan.
According to the averments made in the petition, one Niaz Ali Khan was the original owner of the suit house from whom it was purchased by Mst. Zubaida Bibi through a registered Deed No, 1923 dated 12.8.2000, where Qayyum Nawaz, son of Shah Nawaz was residing as a tenant on monthly rent of Rs, 1200/-which he continued to pay to Mst. Zubaida Begum, but subsequently, he stopped the payment of rent to her and thus she filed the eviction application against him who contested the same by. filing replication thereto and the divergent pleadings of the parties gave rise to the framing of as many as six issues including the relief. After the examination of Patwari halqa and Registry Moharrir, the petitioner, Malik Qayyum Nawaz son of Malik Haji Rabnawaz, applied to the said Court for his impleadment as party/Respondent No, 2 on the ground that he had purchased the suit house through registered deeds No, 2140 and 2141, both dated 28.9.2003 from Qayum Khan and Riaz Ali which was allowed vide order dated 8/1/2004. After closing' statement of the petitioner Mst. Zubaida Bibi on 17.2.004, Respondent No, 2, was directed by the Court to adduce his evidence who produced two witnesses and requested for summoning of two other witnesses, named Qayyum Khan and Riaz Ali but their attendance could not be procured on their given addresses and thus on 5.5.2004, Respondent No, 2 was directed to adduce his remaining evidence but despite repeated directions he failed to do so and, therefore, on 29.5.2005, by invoking the provisions of Order 17 Rule 3 CPC, his defence was struck off. Thus Respondent No, 1 was proceeded against exparte while the defence of Respondent No, 2 was struck off under Order 17 Rule 3 CPC and the learned trial Court passed decree in favour of Mst. Zubaida Bibi and respondent Qayyum Khan son of Shahnawaz Khan, (i) was declared as tenant under Mst. Zubaida Bibi with the direction to hand over vacant possession of the suit house to her within thirty days and (ii) that he, i,e, the said respondent Qayyum Khan shall pay rent of the suit house from March 2001 till 30th September 2004 (43 months) @ Rs, 1200/- per month, which was upheld in appeal as mentioned above and hence this writ petition.
3. Mr. Muhammad Kamran Khan Niazi, learned counsel for the petitioner, vehemently argued that the suit house was purchased by the petitioner vide registered Sale-Deed No, 2141 dated 26/9/2003 and that their evidence was closed by the Rent Controller in violation of Rule 3 of Order XVII of the CPC and thus his judgment based thereon is illegal, against the facts, not sustainable and liable to be reversed.
4. Mr. Nasrullah Khan Gandapur, learned counsel for Respondent No, 2, Qayyum Nawaz Khan, has supported the petitioner's case and denied the ownership of Respondent. No, 1, Mst. Zubaida Bibi.
5. Mr. Akbar Ali Khan, learned counsel for Mst. Zubaida Bibi, Respondent No, 1, has opposed the writ petition on the grounds that no adverse order has been passed against the petitioner and he having already availed off an alternate and adequate remedy by filing Suit No, 1/1 of the year 2004, titled Malik Qayyum Nawaz Vs. Niaz Ali Khan, Mst. Zubaida Bibi and Sub Registrar, which is pending adjudication, has no locus standi to file the present writ petition..
6. We have given our dispassionate consideration to the materials available on record in the lights of arguments of the learned counsel for the parties.
7. The admitted facts are that Mst. Zubaida Bibi, Respondent No, 1 herein, had purchased the suit house vide registered Sale-Deed No, 1923 attested on 12/8/2000 who filed ejectment application against Qayyum Nawaz Khan, Respondent No, 2 herein, on 29/1/2002 before the Rent Controller D.I.
Khan. During its pendency, the petitioner Malik Qayyum Nawaz, purchased a house vide Deed No, 2141 dated 26/9/2003. Needless to mention here that the boundaries and areas of the houses purchased by Mst. Zubaida Bibi and Malik Qayyum Nawaz petitioner are quite different. On the basis of above referred deed, the petitioner Malik Qayyum Nawaz on 12/12/2003 applied for impleadment as party in the ejectment application of Mst. Zubaida which was allowed by order dated 8/1/2004. After closing evidence of Mst. Zubaida Bibi, the petitioner Malik Qayyum Nawaz was directed to produce his evidence who on 9/3/2004 produced two witnesses but subsequently despite warnings on several dates, he failed to produce his remaining evidence and thus on 29/5/2004 his evidence was closed under Rule 3 Order XVII CPC, whereafter the learned Rent Controller passed the following order:--
(a) Respondent No, 1 is declared as tenant under petitioner and both the respondents are liable to hand over vacant possession of the suit house to petitioner within thirty days
(b) Respondent # 1 Qayyum Khan shall pay rent of the suit house from March 2001 till 30th September 2004 (43 months) @ Rs, 1200/-per month which comes to Rs, 51,600/- to petitioner.
8. The tenant/Respondent No, 2 herein Qayyum Khan did not file any appeal against the impugned order of the learned Rent Controller, whereas the petitioner Malik Qayyum Nawaz preferred appeal thereagainst which was dismissed by the learned Additional District Judge-I D.I. Khan on 12/2/2005.
Still feeling aggrieved, the petitioner has filed the instant writ petition.
9. It is evident from resume of the case that vide impugned order of the learned Rent Controller, no adverse order has been passed against the petitioner despite of Es failure to produce remaining evidence coupled with the fact that his defence was struck off. The evidence of Mst. Zubaida Bibi, Respondent No, 1, having gone unchallenged, the impugned order dated 7/10/2004 was passed by the Rent Controller against Respondent No, 2 Qayyum Nawaz Khan and not against the petitioner.
Besides that, it was admitted by Muhammad Umar Khan, Moharrir of the Court of Civil Judge-II D.I.
Khan while appearing as RW.2 that the petitioner has filed Civil Suit No, 1/1 of 2004 against the respondents herein. This being the state of materials available on record that no adverse order was passed against the petitioner vide impugned judgments of both the Courts below and that he has also filed a civil suit to protect his legal rights, if any, therefore, we are of the considered opinion that he has got no locus standi to file the present writ petition.
10. For what has been discussed above, we find no substance in this writ petition which is hereby dismissed with no order as to costs.