' NAZIM HUSSAIN SIDDIQUI, J.---The petitioner under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 seeks leave to appeal against order dated 31-1-2000 of a learned Single Judge, High Court of Sindh, Karachi, passed in F.R.A. No,549 of 1993, whereby C.M.As. Nos.485 and 486 of 1998 and 24 of 1999 were dismissed.
2. Respondent, Muhammad Rizwan had filed Rent Case No,317 of 1993 against the petitioner before 5th Rent Controller, Karachi, South in respect of the Property bearing No,W.O.30, measuring about 685 Sq.Yards, situated at Chand Bibi Road, Karachi for eviction of the petitioner therefrom. The eviction application, as per order dated 7-11-1993, was allowed and the petitioner company was directed to hand over the vacant possession of the premises to the respondent within 60 days from the date of said order.
3. The petitioner being dissatisfied preferred F.R.A. No,549 of 1993 before High Court which was disposed of in terms of the order, dated 10-2-1998 with the following observations:-- ' "However, the learned counsel for the appellant states that he would be satisfied if the ejectment order passed by the learned Rent Controller is maintained subject to condition that in case respondent failed to put the premises for his personal use he would restore the possession to the appellant/tenant and in case of his failure the appellant would be entitled to seek the redress from the learned Rent Controller as required under section 15-A of Rent Ordinance. At this stage the learned counsel for the appellant requests for two months time/period to vacate the premises which is by consent of the counsel for the respondent allowed subject to payment of rent."
4. On 24-3-1998 the petitioner filed C.M.A. No,485 of 1998 under subsection (2), section 12 read with section 151, C.P.C. For setting aside the above order and prayed that said appeal be reheard on merits and fresh judgment be delivered. Alongwith the application, one Aftab Ahmed Shah filed an affidavit on behalf of the petitioner and, inter alia, stated that Mr. Khushi Muhammad, who had represented petitioner before High Court, was not invested with authority to make the statement for dismissal of the appeal and that the concession extended by him was unauthorised, invalid and a fraud upon the petitioner.
5. It is significant to mention here that the petitioner had engaged Mr. Farooq H. Naek, Advocate to represent it and on 29-12-1998 he had filed his personal affidavit stating as follows:-- ' "That Mr. Khushi Muhammad, Advocate at the relevant time, when he argued the appeal, was my associate and was in my firm.
' That I had authorised him to argue the appeal and the provisions of Order III, rule 4(5), C.P.C. Is relevant in this respect according to which any Advocate who is engaged by a party can authorise any other Advocate to plead the case and other Advocate who has been authorised by the Advocate who has filed vakalatnama the authorised Advocate need not file any Vakalatnama."
6. We have heard Mr. Noor Muhammad, Advocate of the petitioner at length and perused the record.
7. It is contended on behalf of the petitioner that on the day the matter was heard by the High Court, Mr. Farooq H. Naek did not appear and Mr. Khushi Muhammad appeared on his behalf and extended the concession to the respondent for which he was neither authorised in writing nor was instructed orally. Learned counsel also argued that Mr. Khushi Muhammad, Advocate had no authority to concede for dismissal of the appeal.
8. Perusal of the record reveals that Mr. Khushi Muhammad being an associate of Mr. Farooq H.
Naek and having been authorised to argue the appeal, was competent to argue the matter on behalf of the petitioner. There was nothing wrong nor any exception can be taken to it. Earlier also Mr. Khushi Muhammad in this very matter had represented the petitioner. He had argued before the High Court that the protection, as provided under section 15(A), of the Sindh Rented Premises Ordinance, 1979, was not extended to the petitioner, which relief was granted by the High Court, as is evident from para. 3 of this judgment.
9. The application of the petitioner under subsection (2). Section 12 of C.P.C. Was misconceived.
Neither it was a case of fraud, nor of misrepresentation, nor want of jurisdiction. The matter was disposed of on merits after affording an opportunity of being heard. It does not fall within the ambit of subsection (2), section 12 of C.P.C.
10. There is no merit in this petition. Accordingly, leave to appeal is refused and the petition is dismissed.