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Constitutional Petition No. D‑1140 of 1986, decided on 4th November, 1986.

‑‑‑Ss. 16(2) & 21(1)‑‑Constitution of Pakistan (1973), Art. 199 Striking off defence of tenant‑‑Order of Rent Controller‑‑Remedy against‑ Constitutional petition, maintainability of‑‑Remedy of appeal against Rent Controller's order refusing striking off defence of tenant on application of landlord being available, constitutional petition against such order, held would not be competent.

Mst. Zubaida Begum v. Mst. S. T. Naqvi 1986 S C M R 261 ref.

‑‑‑Art 199‑‑Sind Rented Premises Ordinance (XVII of 1979), S.16(2)‑ Striking off defence of tenant‑‑Order for‑‑Constitutional jurisdiction, exercise of‑‑Jurisdiction having been conferred upon Rent Controller of making order in respect of acceptance or rejection of application of landlord for striking off defence of tenant, order of Rent Controller, held, could not be regarded as without lawful authority simply because he had passed a wrong and incorrect order‑‑Constitutional petition filed by landlord challenging order of Rent Controller dismissing landlord application for striking off defence of tenant under S.16(2) accepting tenant's explanation, was dismissed as incompetent.

Umar Hayat Sandhu for Petitioner.

.‑‑The petitioner has felt aggrieved against the order passed by the Rent Controller on 23rd February, 1985, whereby he has rejected the application for striking off the defence of the respondent made by the petitioner in an application, which was pending under the Sind Rented Premises Ordinance, 1979. The petitioner had filed a review against the said order but the same was also dismissed on 30th March, 1986. This petition has now been filed where the two above orders are attacked. In the first instance .the petitioner should have filed an appeal against the order, dated 23‑2‑1985 because the rights in respect of the application made by him under section 16(2) had been finally determined. It had been held by the Supreme Court in Mst. Zubaida Begum v. Mst. S.T. Naqvi 1986 SCMR 261 that the landlord, who files an application for striking off the defence of the tenant and the same is rejected, has a right of filing an appeal against that order. In that view of the matter, the petitioner had a remedy in law available to him for making the same, but he had not availed the same and Mr. Sandhu states that he was not aware of this fact. The explanation appears to be reasonable, but the appeal was in any case competent and has not been filed.

However, what we find is that the Rent Controller has the jurisdiction of making the order in respect of acceptance or rejection of the application for striking off the defence and since he had the jurisdiction to do so then the mere fact that he has passed a wrong and incorrect order, it cannot be said to be without lawful authority.

Mr. Sandhu was quite right when he had contended that the Rent Controller has presumed that the tenant was sick in 1982 when the alleged default took place, while the medical certificate that he has filed was in respect of sickness in 1983. The learned counsel is right but it is a matter of accepting the explanation and once the Rent Controller has accepted the explanation it is not for us to go into the correctness of that order because we are not sitting here as a Court' of appeal. Consequently, this petition is dismissed in limine.

H.B.T./S‑2/K Petition dismissed.

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