' AMIN-UD-DIN KHAN, J.---Through this writ petition petitioner has challenged the order passed by the learned Additional District Judge, Rawalpindi dated 26-10-2011 whereby Rent Appeal No, 371 of 2011 filed by respondent No, 1 was accepted and the order of eviction passed by learned Special Judge Rent, Rawalpindi dated 4-4-2011 was set aside.
2. Brief facts of the case for determination of this petition are that petitioner on 22-4-2010 filed an eviction petition. Before the learned Senior Civil Judge/Rent Tribunal, Rawalpindi against Malik Jahangir Ahmad. On a summons for 6-5-2010, the Process Server reported that Malik Jahangir Ahmad has refused to receive the summons, therefore, the learned Rent Tribunal ordered for substituted service through publication in the newspaper and after publication the sole respondent of the ejectment petition was proceeded against ex parte on 20-5-2010 and case was adjourned for 7-6-2010 for ex parte evidence. On 7-6-2010, Malik Khurram Jahangir son of the original respondent filed four applications stating therein that his father died on 30-11-2007, an application for leave to defend as well as for setting aside the ex parte proceedings and application impleading the applicant as a respondent in the petition was also filed. Record shows that learned counsel for the eviction petitioner on 6-7-2010 made a statement that he has no objection if application filed by Malik Khurrarn Jahangir for impleading him as a party be accepted, same was accepted and the eviction petitioner filed amended petition impleading Malik Khurram Jahangir as respondent No, 2 in the eviction petition whereas Malik Jahangir Ahmad was shown as respondent No,
1. Evidence of the parties was recorded. Learned trial court vide judgment/order dated 4-4-2011 accepted the eviction petition. Malik Khurram Jahangir preferred an appeal which was accepted by the learned Additional District Judge vide order dated 26-10-2011 and eviction order passed by learned Rent Tribunal was set aside.
2. Learned counsel for the respondent at the very outset raised preliminary objections by referring "Muhammad Yar (deceased) through L.Rs, and others v. Muhammad Amin (deceased) through L.Rs, and others" (2013 SCM R 464) that when a lis was filed against a sole deceased/defendant, the defect is not curable and the matter cannot proceed and further that the writ petitioner was not an owner of the property nor he was having any right to receive the rent, therefore, very filing of the eviction petition as well as this petition was incompetent.
3. Learned counsel for the writ petitioner argues that as respondent No, 1, who is the son of the original tenant, was made party in the eviction petition on his application, therefore, the defect, if any. Was cured and the learned Rent Tribunal has rightly passed the order for eviction of the respondent and argues that the learned first appellate court fell in error while reversing the order passed by learned trial court.
4. I have considered the arguments advanced by learned counsel for the parties and have gone through the record as well as case-law submitted before the Court.
5. In the light of law relied by the learned counsel for the respondent i.e, Muhammad Yar (deceased) through L.Rs, and others v. Muhammad Amin (deceased) through L.Rs, and others"
(2013 SCM R 464) as the matter can be decided on this point, therefore, there is no need to further go into the merits of the case. Respondent in his application filed on 7-6-2010 clearly mentioned that his father died on 30-11-2007 and the eviction petition has been filed against sole respondent who was dead at the time of filing of the petition. Learned counsel for the eviction petitioner on 6- 7-2010 made a statement that he has no objection to implead the applicant Malik Khurram Jahangir as respondent in the eviction petition and he was accordingly impleaded as respondent No, 2 in the petition whereas respondent No, 1 was Malik Jahangir Ahmad deceased. Further the sole statement in chief of the petitioner, which is in the shape of an affidavit, has been produced as Exh.PA/1. In this affidavit all the allegations and the eviction sought are against Malik Jahangir Ahmad and even in the cross-examination the date of death of the original tenant Malik Jahangir Ahmad has not been denied. Further when respondent Malik Khurram Jahangir appeared as his own witness, as RW-1, to face the cross-examination, produced Exh.R-7 an extract from the register of death entries issued by the Executive Officer wherein the date of death of his father Malik Jahangir Ahmad the original tenant against whom the eviction petition was filed, is mentioned as 30-11-2007 and the same has not been denied by the eviction petitioner. In this view of the matter, in the light of the judgment referred by the learned counsel foi the respondent mentioned supra when admittedly an application for eviction was filed against a sole respondent who was dead at the time of filing of the eviction petition, the same was not proceedable and the defect is not curable, therefore, the eviction petition was incompetent and the decision given by the learned trial court was nullity in the eye of law.
6. Record shows that in the original rent agreement commencing from 1-1-2003, which is Exh.A2, the petitioner has shown himself to be the owner of the shop in dispute whereas when he appeared in the witness-box, stated that it was in the ownership of Muhammad Abbas and then admitted that before 29-4-2010 Muhammad Asghar was the owner of the disputed shop. He has produced sale deed Exh.A3 with regard to the said shop, which is dated 9-4-2010 registered on 29-4-2010 by one Jamil Asghar in favour of Muhammad Abbas. He has further submitted power of attorney on behalf of said Muhammad Abbas as Exh.A4 to show that Muhammad Abbas is the owner and landlord of the property and on his behalf the eviction petition has been filed and he has given instructions to the petitioner Javed Iqbal to proceed with the eviction petition, therefore, all these things are contradictory on the side of the petitioner, when at one place he claims to be owner of the property whereas through this document Exh.A4 he is showing that he has filed the eviction petition on behalf of Muhammad Abbas, even at the time of filing of the petition Muhammad Abbas was also not the owner of the suit property. In this view of the matter, when petitioner has come before this Court in extra ordinary constitutional jurisdiction and for invoking such jurisdiction petitioner was bound to show some jurisdictional defect committed by the appellate court and he miserably failed to highlight any such defect in the impugned judgment. I have seen that the learned first appellate court has minutely gone through the evidence and reached to a right conclusion.
Furthermore, the legal point discussed above also disentitles the petitioner for exercise of such jurisdiction in his favour.
7. For what has been discussed above, I find no force in this petition, same stands dismissed.