1. ' ABDUL RAHIM KAZI, J.--This Constitutional petition has been moved by the petitioner seeking the following reliefs:--
(1) That the illegal and mala fide order dated 18-9-1994 (Annexure II) passed by the respondent No,2 and the subsequent illegal and faulty order dated 6-12-1994 (Annexure P) passed by the learned respondent No,3 be quashed and set aside with further orders that the application dated 15-8-1994 (Annexure I at pages 87 to 99) lying on the file of the respondent No,3 be disposed of according to law after due hearing of the parties.
(2) That the order of ejectment dated 11-5-1994 passed by the respondent No,2 be declared illegal and mala fide and the petitioner be declared entitled for compensation and lessees caused to him through the execution of the said illegal order without service of notice on the petitioner.
(3) That any other relief as deemed fit and proper in the circumstances of the case be also granted.
(4) Cost of the case be ordered to be borne by the respondents Nos.1 and 2."
2. ' Briefly the facts relevant for the purpose of this petition are that the present respondent No,1 had filed an application under sections 14 and 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) seeking ejectment of the present petitioner. In the said application, the present petitioner, though served remained absent and, therefore, the matter was ordered to proceed ex parte against him. The respondent No,1 had filed affidavit in ex parte proof and the learned lInd Senior Civil Judge (East), Karachi was pleased to pass order on 11-5-1994 whereby he allowed the said application and directed the present petitioner to put the respondent No,1 in vacant and peaceful possession of the premises in question being the ground-floor of premises bearing B-101, Block-3, Gulshan-e-lqbal, Karachi within 30 days from the date of the order.
3. ' Consequent upon the above order, the respondent No,1 filed an execution application being Execution No,17 of 1994. Writ of possession was issued in the execution application and ultimately with the help of police aid, the possession was taken over by the respondent No,1 and this execution application was finally disposed of by order passed on 8-8-1994. The present petitioner then filed an application under section 24 of the Ordinance before the Rent Controller on 15-8-1994.
4. According to the allegations made in the present petition, the Rent Controller did not receive this application but returned the same to the petitioner. The petitioner then, as stated in paragraph 14 of the memo. Of petition and onwards, approached the Law Department of Sindh Government and copy of his application under section 24 of Ordinance was passed on to the High Court of Sindh and the matter was then examined by the High Court and the District Judge, Karachi East was directed to look into the matter and to get the application disposed of according to law. Such order was passed on 8-9-1994. The District Judge is then said to have directed the Rent Controller to dispose of the said application and it appears that on 18-9-1994 the Rent Controller passed the order whereby the application under section 24 of the Ordinance was dismissed. It is from this order that the petitioner has instituted the present petition on 19-3-1995. It is also alleged that in the meanwhile the petitioner had moved a transfer application before the District Judge, Karachi East for transfer of said application under section 24 of the Ordinance and that this application was also dismissed by the District Judge, Karachi East on 11-10-1994 in default of the appearance of the applicant. Thereafter an application was moved under section 151, C.P.C. By the present petitioner before the District Judge praying for reopening of the same matter but this application was also dismissed on 6-12-1994.
5. We have heard Mr. Azad Bin Haider, Advocate for the petitioner. The contention of Mr. Azad Bin Haider is that because the original order of the ejectment passed on 11-5-1994 is without jurisdiction as no notice was served on the present petitioner and, therefore, the Rent Controller could not have proceeded in the matter. He has further argued that in such circumstances, the order is a void order and therefore the petitioner could file the present petition without having resorted to the remedy of the appeal. As regards the legal proposition, there is no cavil about the same. However the question involved in the present matter is that the order of ejectment passed on 11-5-1994 shows that the present petitioner though served has remained absent. This being a question of fact, no enquiry on such aspect can be held in the Constitutional petition.
6. There is another aspect of the case. This order of 11-5-1994 is an appealable order and on the face of record the present petitioner had the knowledge of this order at least on 15-8-1994 when he moved the application under section 24 of the Ordinance but yet no appeal has been preferred till this date. The point as regards the factum of service can be taken in the appeal. In such circumstances, this appeal would not lie as the alternate and adequate remedy of appeal is available. The case-law cited by the learned counsel with regard to the legal proposition that the petition would be maintainable without filing an appeal in case the order is void ab initio has no bearing to the facts of the present case. In such circumstances, we are of the considered opinion that the prayer as mentioned in clause (ii) of the prayer clause of the petition cannot be granted in this petition. As regards the first prayer in the prayer clause it may be observed that order on 18-9- 1994 was passed on the application under section 24 of the Ordinance. Section 24 of the Ordinance reads as under:--
24. Cognizance of offence.--No Court shall take cognizance of an offence under this Ordinance except upon complaint in writing made by the Controller."
7. The allegations made in the application under section 24 of the Ordinance would show that none of these alleged acts would constitute an offence under the Ordinance and, therefore, this application on the face of it is a misconceived application. Accordingly we do not find any reasons to interfere with the orders passed by the Rent Controller on 18-9-1994.
8. ' Lastly, the learned counsel for the petitioner has argued that the said application under section 24 of the Ordinance was not before the Rent Controller and, therefore, the Rent Controller could not have passed the order under section 24 of the Ordinance. The certified copies produced by the petitioner would show that the application was moved before the Rent Controller who had passed the orders thereon. However we have sent for the R & Ps. Of the Transfer Application from the Court of District Judge and the Rent Case and Execution Application from the Court of Rent Controller and we are unable to locate such application in any of the aforesaid R & Ps. In these circumstances, it appears that this application has been removed from the file. The certified copy of the said application is produced by the petitioner in the Constitutional petition which has been granted by the Court and this shows that the application was available on the record of the lower Court from where the said copy is granted to the petitioner. However this would be the matter to be dealt with on administrative side under the supervisory jurisdiction of the High Court as provided in Article 203 of the Constitution of Islamic Republic of Pakistan. Accordingly, we are of the view that it should be for the District Judge, Karachi East to hold an enquiry in the matter as to how this application under section 24 of the Ordinance was removed from the Court file. With regard to this, the matter may be placed before the Hon'ble Chief Justice for passing appropriate orders.
9. ' In the light of above discussion, we find no merit in the present petition which is accordingly dismissed in limine.