' This constitutional petition calls in question the legality of the order dated 10th September, 1980 passed by Additional District Judge, Lahore, whereby he accepted the appeal filed by respondent No, 2 and set aside the orders dated 8th February, 1979 and 24th J uly, 1979 of Mumtaz Hussain Malik Civil Judge/Rent Controller, Lahore.
2. The relevant facts of the case are that one Nasim Mahmood predecessor-in-interest of the petitioners on 3rd September, 1975 filed an ejectment petition against the respondent No, 2 from shop No, 12, Beadon Road, Lahore, on the grounds of default in payment of rent, bona fide personal need and damage done to the property by tenant. The learned Rent Controller vide his order dated 30th June, 1977, accepted the ejectment petition on the ground of personal need of the property to Nasim Mahmood, the owner-landlord. Respondent No, 2 assailed the aforementioned order in appeal and the learned Additional District Judge, Lahore, vide his order dated 18th March, 1978, set aside the order of his ejectment and accepted his appeal. This order was further challenged in S.A.O. No, 213 of 1978 by sim Mahmood in this Court in which record was summoned on 16th May, 1978 and no interim relief was granted to him. This appeal, however, was withdrawn subsequently on 22nd April, 1980.
' Nasim Mahmood without aN aiting the result of the appeal and disclosing its pendency in the High Court filed another ejectment petition on 8th January 1979 on the ground of default, personal need and damage done to the property by respondent No,
2. An ex parte order of ejectment was passed by the Rent Controller on 22nd January, 1979 followed by decree dated 8th February, 1979. The landlord thereafter obtained possession of the shop in dispute on 25th April. 1979 in pursuance of execution of the aforementioned decree. Respondent No, 2 on the same day, viz. 25th April, 1979 moved an application under 0. IX, R. 13, C.P.C. Before the Court for setting aside the ex parte decree on the ground that ejectment decree was obtained fraudulently and without knowledge and notice to him. The Rent Controller suspended the operation of the ex parte order on 25th April, 1979 but ultimately on 24th July, 1979, dismissed the application filed by respondent No,
2. Aggrieved against the aforementioned order and earlier order dated 8th February, 1979, respondent No, 2 filed appeal accompanied by an application under section 5 of the Limitation Act. The appeal was accepted on 10th September, 1980 by the learned Additional District Judge, Lahore and held that the ex parte order was obtained fraudulently by the landlord.
3. Learned counsel for the petitioners contended that no regular appeal was filed against order dated 8th February, 1979 passed by the Rent Controller within time and the appeal filed thereafter was manifestly barred by time. It was next contended that no appeal was competent before the Additional District Judge, Lahore, against the order refusing to set aside ex parte decree and therefore, the appeal filed by r respondent No, 2 was not maintainable. It was also submitted that the second application for ejectment of respondent No, 2 was competent under the law. It was argued that the present petitioners purchased the disputed shop on 7th July, 1979 through registered sale-deed for valuable consideration without notice as such, even if there was some lapse on the part of their predecessor, the same cannot be attributed to them.
4. Mr. Mushtaq Raj, Advocate, learned counsel for the contesting respondent, on the other hand, submitted that the petitioners have approached this Court with unclean hands and, therefore, not entitled to discretionary relief. It was submitted that the petitioners stepped into the shoes. Of Nasim Mahmood, their predecessor-in-interest, and thus liable for actions performed by him in relation to the disputed shop. It was contended that Mr. Nasim Mahmood did not deliberately mention the pendency of his appeal in the High Court in the ejectment petition subsequently filed by him. He added that the ground of default in payment of rent including the period regarding which the respondent No, 2 deposited the rent was within his knowledge. It was also submitted that shop in dispute was sold by him in favour of the petitioners despite an order of status quo granted by the trial Court and written commitment made by him not to alienate the property. It was further submitted that on 17th July, 1979, he appeared before the trial Court and made a statement on oath that he was owner of the disputed shop although on 7th July, 1979 he had disposed of the shop through registered sale-deed in favour of the petitioners. It was also submitted that respondent No, 2 in the petition specifically disclosed that Mr. Nasim Mahmood intended to alienate the property in favour of the present petitioners and the petitioners being his neighbours were fully aware of all the proceedings pending in the Courts but they ventured to purchase the property despite orders of stay granted by the Court and clear commitment of non-alienation made by him in the Court. It was next submitted that the appeal before the Additional District Judge was competent as the ex parte order passed by the Rent Controller amounted to a decree.
5. 1 have heard learned counsel for the parties at length and perused the relevant record. It is established that Mr. Nasim Mahmood, the predecessor-in-interest of the petitioners, had filed an appeal assailing the order of the Additional District Judge and the same was pending decision in this Court when he instituted another ejectment petition against respondent No, 2 and obtained ex parte order of his ejectment. The grounds mentioned in the earlier application of ejectment were similar to those mentioned in the subsequent ejectment petition except for different period of default and new damage done to the property in dispute. As regards the default, respondent No, 2 had regularly deposited monthly rent in Court which had been withdrawn by Mr. Nasim Mahmood upto April, 1978. In case he was of the view that respondent No, 2 did not send him the rent, he ought to have moved an application before this Court where his appeal was already pending decision but he preferred to file another ejectment petition and without the factum of his appeal pending in this Court obtained order of ejctment ex parte against respondent No,
2. He also alienated the property in dispute during the pendency of the appeal and contrary to clear commitment made by him in Court and the order of stay issued by the trial Court. He also made a false statement on 17th July, 1979, in the trial Court posing himself to be the owner of the property in dispute although he had already alienated the same on 7th July, 1979 in favour of the present petitioners.
6. The petitioners being successor-in-interest would succeed to the actions of their predecessor- in-interest in relation to the shop in dispute. It is also apparent on the record that the respondent No, 2 moved an application in the trial Court apprehending the alienation of the disputed property in favour of the present petitioners. This fact also lends support to the conclusion that the petitioners were also aware of the Court proceedings pending in respect of the disputed property.
7. The ex parte order of ejectment subsequently obtained agains respondent No, 1 by Mr. Nasim Mahmood, the predecessor-in-interest of the petitioners and for that matter even the petitioners, was based on suppression of 'aterial fact. Thereafter alienation of the property in favour of the petitioners was also in violation of the order of status qua A granted by Court. Taking all these circumstances in view, I feel not (persuaded to exercise constitutional discretionary jurisdiction in favour of the petitioners and interfere in the impugned order of the learned Additional! District Judge, Lahore.
8. Even Otherwise refusal to set aside the exparate order of ejectment was appealable before the first appellate Court because the ejectment order assumed the character of a decree.
' Furthermore, the petitioners did not challenge the jurisdiction of the first appellate Court during the pendency of the appeal or That the B appeal was barred by time and after an order adverse to them had been passed they cannot be allowed at this stage to question the jurisdiction of the appellate Court. In Ghulam Mohi-ud-Din v. Chie Settlement Commissianer (Pakistan), Lahore and two others (1) it was observed by the Supreme Court : "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
' In my view the impugned order passed by the Additional District Judge was correct, but assuming the same to be wrong or illegal, it cannot be declared without jurisdiction and set aside. In Muhammad Hussain Munir and others v. Sikandar and others (2) it was held by the Supreme Court :- "It is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would
(1) P L, D 1964 SC 820 (2) PLD 1974 SC 139 . ' make the High' Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the Constitution makers."
' Similarly, in Mian Muhammad Hafiz, etc. v. Aziz Ahmad, etc. (1) it, was held by the Supreme Court :- ' Undoubtedly the trial Court had the jurisdiction to pass the order which it did. It is true that it acted in breach of the provisions of Order XVI, rule 1 and, therefore, the order passed was an erroneous exercise of its jurisdiction. But this does not mean that the order is without jurisdiction, therefore, the remedy of a Writ Petition was totally misconceived."
9. In view of the reasons recorded above, this petition is dismissed with costs.
(1) 1980 SCMR 557