1. ' AFTAB AHMED GORAR, J.---By this single order I propose to dispose of abovesaid two Constitutional Petitions as in both the petitions facts as well as the law involved is similar, besides the respondent/ landlord in both the petitions is also one and the same. Through the instant petitions, the petitioners have challenged the Judgments dated 29-1-2011 passed by learned Vth Additional District Judge, Karachi South in F.R.As. Nos.407 of 2009 and 407 of 2009 whereby he dismissed the appeal filed against the ejectment orders dated 30-10-2009 passed by the learned IInd Rent Controller, Karachi South.
2. ' Precisely the facts of the case are that the respondent filed rent applications praying therein for ejectment of the petitioners from the Shop No,9 and Shops 10 and 13 respectively situated on Plot No,6, Street LR-8, Business Street, Off Nishter Road, Karachi on the ground of default in payment of rent and subletting. The petitioners did not file written statement, as such the case was ordered to, be proceeded ex parte vide order dated 6-8-2009. The respondent filed affidavit in ex parte proof and was cross-examined by the learned Rent Controller. When the case was fixed for orders, the petitioners through their advocate filed application for recalling of the said order which was dismissed vide order dated 23-10-2009 and ultimately vide Judgment dated 30-10-2009 ejecement application was allowed directing the petitioners to vacate the premises in question and hand over its possession to the respondent/landlord within 30 days from the date of the order.
3. Against the said judgment, petitioners preferred appeals which were also dismissed, as stated above, hence these petitions.
4. ' Learned counsel for the petitioners contended that the two courts below erred in law and on facts while passing the impugned judgments; that the impugned judgments are based on misreading and non-reading of the evidence. He further contended that even in case of ex parte decision the Rent Controller was required to discuss the facts, evidence and the law and to give reasons for passing the order which has not been done in the present case. According to him, the trial Court was not justified in not providing opportunity to the petitioners to cross-examine the respondent; that non-filing of written statement was due to illness and ultimate death of mother-in-law of the petitioner Mst. Samina Affaq who is also mother of petitioner in other petitioner namely Affaq Ali. He prayed for setting aside of the judgments passed by the courts below.
5. ' On the other hand, learned counsel for the respondent contended that several opportunities were provided to the petitioners but they failed to file written statement. He further contended that it was after the evidence of the respondent was recorded and he was cross-examined by the Court that the application for recalling of ex parte order was moved; that the concurrent findings of the lower courts cannot be/challenged in constitutional petition. He prayed for dismissal of the petitions.
6. ' I have heard the learned counsel for the parties and perused the material available on the record.
7. ' It appears that after filing of rent application matter was fixed in court for filing of written statement by the petitioners on various dates viz. 28-5-2009, 13-7-2009, 23-7-2009, 29-7-2009 and 6-8-2009 but none appeared on their behalf. It was only when the ex parte order was passed against the petitioner and entire evidence of the respondent was recorded and he was cross- examined by the court, that an application for recalling of ex parte order was moved by the petitioner through their advocate on the ground that due to death of mother-in-law of petitioner Mst. Samine Affaq/mother of petitioner Affaq Ali, they could not attend the court. It appears that the deceased expired on 14-7-2009 and before that date the case was fixed on several dates for filing of written statement but they failed to appear. Although petitioner Affaq Ali had appeared in court on 16-5-2009 and received copy of ejectment application but he moved adjournment application only for that particular date and there is nothing on the record to show that he had placed some tangible material on the record in respect of such a serious illness of his mother thereby showing inability of the petitioners to appear in court for such a long time. The order whereby application for recalling ex parte order was dismissed is very elaborate and sound and strong reasons have been assigned for dismissing the application.
8. So far as contention of the learned counsel that notwithstanding the ex parte order having been passed, the trial Court was not justified in not providing opportunity to the petitioners to cross- examine the respondent is concerned, suffice it to say that the petitioners had moved the application for setting aside of ex parte order when the entire process of recording of evidence and cross-examination of the respondent by the court itself was completed and the case was fixed for orders. It cannot be said that the learned Rent Controller has blindly relied upon the words of the respondent, rather he was cross-examined by the court itself and after considering the entire evidence and other material available on record the learned Rent Controller has passed the ejectment order. Needless to emphasize that it is now well settled that if a statement on oath is not challenged/rebutted, same amounts to admission on the part of other side. In this view of the matter, there seems to be no illegality or material irregularity on the part of the two courts below which render the impugned judgments as illegal and unlawful.
9. ' In the instant case there are concurrent findings of the learned Rent Controller as well as the Appellate Court. It may be observed that constitutional jurisdiction of this Court in rent matters is very much limited and confined only to ascertain whether the appellate court has not flouted provisions relating to the statute or failed to follow the law relating thereto. In the case reported as Hafiz Shafatullah v. Mst. Shamim Jehan and another (PLD 2004 Karachi 502) this Court held as under:-- "By conferring only one right of appeal under section 21 of Sindh Rented Premises Ordinance, 1979, Legislature in its wisdom seemed to have tried to shorten the span of litigation in rent case and in such circumstances interference by High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial order passed by Tribunal of competent jurisdiction, merely on ground that another view of the matter was also possible, would not serve any other purpose, but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute."
10. ' In 2010 SCMR 1025 the Honourable Supreme Court held as under:- "....Jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of the appellate Court. Therefore, mere fact that upon perusal of evidence, High Court came to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws i,e, Sindh Rented Premises Ordinance, 1979."
11. ' For the foregoing reasons, I do not see any justification to interfere with the concurrent findings of the two courts below, with the result petitions are dismissed in limine. Petitioners are directed to hand over vacant and peaceful possession of the tenements in their respective possession to the respondent within a period of thirty days.