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Petitioner: MUHAMMAD HUSSAIN VS Respondent: ZAHIR SHAHHonorable Justice Zia-ud-Din KhattakMuhammad Aman Khan
2008 C L C 1626
2008 C L C 1626
[Peshawar]
Before Shahji Rahman Khan and Zia-ud--Din Khattak, JJ
MUHAMMAD HUSSAIN----Petitioner
Versus
ZAHIR SHAH and 2 others----Respondents
Writ Petition No.932 and C.M. No.1087 of 2008, decided on 29th July, 2008.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----Ss. 13(2)(i), (3)(ii) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and bona fide personal need---Ejectment order passed by the Rent Controller against tenant, was upheld by appellate authority---Subject-matter related to Provincially Administered Tribal Area, where second appeal under S.15(4) of West Pakistan Urban Rent Restriction Ordinance, 1959 (un-amended) was permissible for want of extension of West Pakistan Urban Rent Restriction Ordinance, 1979 in terms of Art.247 of the Constitution---Tenant, despite availability of adequate and efficacious remedy by way of second appeal, opted to challenge the order of the first appellate authority through constitutional petition, which, ex facie, was not permissible---Request for counsel of the tenant that the constitutional petition may be treated as second appeal, was declined for the reason that the second appeal even if brought would have been time-barred; and that the concurrent findings of Rent Controller and appellate authority ordering ejectment of tenant from the shop on ground of personal requirement, were not open to interference---Appellate authority had decided the appeal in accordance with law and evidence available on record, no case was made out.
Muhammad Aman Khan for Petitioner.
ORDER
ZIA-UD-DIN KHATTAK, J.--- Heard.
This writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the judgment and order dated 18-4-2008 whereby Syed Muambar Jan, Additional District Judge/Izafi Zilla Qazi-I, Swat maintained ejectment order passed against Muhammad Hussain, petitioner from a shop situate near Star Market Mingora District Swat.
2. Briefly, facts relevant for the disposal of this writ petition are that Zahir Shah, respondent No.1 herein filed petition for ejectment of Muhammad Hussain, petitioner herein from a shop on the grounds of personal need and default in payment of rent. The learned Rent Controller after hearing the parties vide order dated 29-9-2007 passed ejectment order against the tenant. Appeal No.2/14 of 2007 filed against the impugned order did not find favour with the appellate Authority/Additional District Judge-I, Swat who vide judgment dated 18-4-2008 dismissed it leaving the parties to bear their own costs.
3. It merits mention that the subject-matter relates to P.A.T.A. where second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (unamended) is permissible for want of extension of N.-W.F.P. Ordinance No.9 of 1979 in terms of Article 247 of the Constitution of the Islamic Republic of Pakistan. Petitioner despite availability of adequate and efficacious remedy by way of second appeal opted to challenge the order of the first Appellate Authority through this writ petition which is ex facie not permissible. The learned counsel realizing the defect requested that the constitutional petition may be treated as second appeal which request was declined for the simple reason that the second appeal even if brought would have been time barred and that the concurrent findings of Rent Controller and Appellate Authority ordering ejectment from the shop on ground of personal requirement are not open to interference. The appellate Authority has decided the appeal in accordance with law and evidence available on record, therefore, no case is made out.
4. In the result, this writ petition is dismissed in limine along with C.M. No.1087 of 2008.
H.B.T./145/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.