S. A. NUSRAT, J.-The brief facts stated in this petition are that the petitioner is a tenant of the respondent No. 4 in the premises situated on Plot No. 23, Row No. 3, Sub-Block 'B', Block IV, Nazimabad, Karachi, which he is said to be occupying under a Rent Deed dated 27th March 1074, on monthly rental of Rs. 650. The respondent No 4 had filed a Rent case No. 1085 of 1977 for ejectment of the petitioner from the premises in question in the Court of II Rent Controller and Civil Judge, Karachi. In paragraph 8 of the petition a categorical assertion was made to the effect that, "the petitioner had already filed a written statement on 18th August 1977, and the matter was adjourned for further proceedings to 12th September 1977." This assertion was supported by filing copies of order-sheet and written statement as Annexures 'C' and 'D' to the petition. On these factual assertions it was stated that on 2nd September 1977, the petitioner was served with summon in respect of petition made under Martial Law Order No. 20, for appearance before the respondent No 2, on 3rd September 1977. The petitioner duly appeared before the respondent No. 2 on the said date and filed an application disclosing that a rent case was pending in respect of the disputed premises before the Rent Controller and as such the case of the respondent No. 4 was not covered by the provisions of Martial Law Order No. 20 issued by the Martial .Law Administrator, Zone 'C', Karachi, providing for disputes under Sind Urban Rent Restriction Ordinance, 1959, between the tenant and landlord. It was alleged that in spite of the said assertions the respondent No. 2 proceeded to decide the case and directed the petitioner to vacate the premises by 21st September 1977. It was also alleged that no copy of any order was made available to the petitioner.
How--ever, the petitioner submitted a revision petition before the Martial Law Administrator as provided under the Martial Law Order No. 20. In spite of enquiries made from the office of the respondent No. 1 he received rte satisfactory reply. On the contrary, it was alleged that one Major Ramzan, after-on-duty, dealing with the cases in the office of respondent No. 1. Ordered that the petitioner was to vacate the premises on 21st September 15177. When the petition came up for admission before us on 22nd September 1977, we were persuaded to adroit the same on the consideration that there wag no challenge to any Martial Law Regulation or Order in the petition and the contention was that the respondent No. 2 was not acting in accordance with the provisions of the Martial Law Order No. 20 itself. The petitioner expressed anxiety that he was being dispossessed without any order and from the documents annexed to the petition and the facts laid before us. It appeared prima facie that a rent case was still pending before the Rent Controller and in these circumstances the respondent No. 2 was not clothed with any jurisdiction under the Martial Law Order No. 20. Art ad interim stay was also granted for the said reasons.
2. The respondent No. 4 having been served with notice of the petition, moved an application seeking early hearing of the petition on the ground that admission and order of stay were procured by the petitioner by misrepresentation of facts. Notice was accordingly issued to the petitioner for hearing of the main petition as well as injunction application for today.
3. The respondent No. 4 has filed a detailed counter-affidavit with documents and a re-joinder to the same has also been filed by the petitioner. It is disclosed from the counter-affidavit of the respondent No. 4 that an order of ejectment was passed by the respondent No. 2 on 23 September 1977, and a revision application of the petitioner filed under paragraph 8 of the Martial Law Order No. 20 was also dismissed on 21st September 1977. The respondent No. 4 has also filed a certified copy of the application for withdrawal of the case from the Court of Rent Controller, Karachi which is dated 16th August 1577. A certified copy of endorsement on Diary Sheet from the rent case has also been filed, confirming that the withdrawal application was actually filed on 16th August 1977. A certified copy of order, passed on the withdrawal applica--petition, has further been produced but it does not bear any date. Mr. M. G. Dastgir, learned counsel for the petitioner, reiterated his contention that in fact rent case was still pending on 3rd September 1977, when the impugned order came to be passed by the respondent No. 2. 1n support of his said assertion he relied upon another certified copy of the order of the lent Controller, allowing withdrawal of the case by the respondent No. 4, which is identical to the certified copy of the order produced by the respon--dent No. 4 but with the only difference that It is dated 12th September 1977. Mr. Dastgir contended that since no order was passed on the withdrawal application up to 12th September 1977, the rent case of the respondent No. 4 was therefore still pending when the impugned order was passed and this could not be done under the provisions of Martial Law Order NJ.
20. Reliance was placed on paragraph 9 of M. L. O. No. 20 which reads as follows :- "This order will have no effect on the matters already pending in the Courts of Rent Controller and the superior Courts."
4. Mr. Habibur Rahman, learned counsel for respondent No. 4, on the other hand placed reliance upon certified copy of the withdrawal application of respondent No. 4 dated 16th August 1977, which was duly filed before the Rent Controller on the same day. According to him the fact that respondent No. 4 Tad made an application for withdrawal of the rent case on 16th August 1977, was sufficient to give jurisdiction to theMartial Law Court because in so far as the respondent No. 4 was concerned, she had duly withdrawn the rent case from the Court of the Rent Controller, which cannot be Fail to be pending on 3rd September 1977. When the impugned order was passed. In this connection he referred to a judgment of the Supreme Court its the case of Haji Abdur Rasheed Saudagar v. S. M. Lalite Roy and others PLD 1959 SC (Pak.) 287 wherein on consideration of the provisions of Order XXIII, Cr. P. C. It was held that under sub-rule (1) of Order XXIII. C. P. C. The plaintiff may withdraw his suit at any stage of the proceed--ings without an order of Court, whereas underrd sub-rule (2) permission of Court for withdrawal was necessary. The judgment clearly supports the contention of the learned counsel for respondent No. 4, it must, therefore. Be geld that withdrawal application having beer, filed by the respondent No. 4 on 16th August 1977, proceedings under Rent Ordinance were no longer pending.
The contention of the learned counsel for the respondent, that admission of the petition was procured by misrepresentation of facts, is borne out from the facts disclosed in the petition. In paragraph 8 off the petition it was stated by the petitioner that he had filed written statement before the Rent Controller on 18th August 1977, and the matter was adjourned for further proceedings to 12th September 1977 It was not mentioned that the rent application was dismissed as withdrawn on 12th September 1977, and the petitioner, therefore, is guilty of suggestio falsi and suppressia vari. The respondent No. 4 has asserted in paragraph 19 of her counter affidavit that the respondent No. 1 had summoned the parties on 21st September 1977, and pronounced his order after hearing the parties and the petitioner was directed to vacate the disputed premises. It has further been stated that the. Petitioner had sought time for vacating the premises upto 25th September 1977, by 4 p.m. But instead he moved this Court and obtained an order of stay. This categorical assertion has not been specifically denied in the affidavit-in-re-joinder filed by the petitioner which makes a penurious reply. The petition is, therefore, otherwise also liable to be dismissed on account of mis representation of facts. The conduct of the petitioner in this connection is regrettable.
5. For the reasons mentioned hereinabove, we find no substance in this petition which is dismissed with costs.