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Constitutional Petition No.D-114 of 1987, decided on 17th February, 1987.

---S.15---Eviction proceedings--Powers of review by Rent Controller-- Review application filed by petitioner before Rent Controller, held, was not competent in law.

---S.15--Constitution of Pakistan (1973), Art. 199--Application of petitioner for withdrawing his affidavit filed without any affidavit in support of averments made in application, held, was rightly dismissed by Rent Controller--- High Court declined to interfere with order of Rent Controller, in constitutional petition with the observation that petitioner was trying to lengthen proceedings.

Manzural Haq for Petitioner.

--The petitioner has felt aggrieved against the order of the Rent Controller by which his application dated 16-7-1986 for withdrawing tile affidavit, filed by him as an opponent in the rent proceedings on 14-7-1986, was disallowed and the review application thereafter filed by him was also rejected.

The petitioner /opponent had been required on 29-5-1986 to fee his affidavit by 2nd of July, 1986, but he did not file the same. He was further allowed one week's time to file the affidavit in support of his defence. The required affidavit was filed on 14-7-1986. However, the petitioner got wiser within two 'days and wanted to withdraw this affidavit on the ground that the same did not contain the full instructions, which had been conveyed by him to his counsel and he had not been able to read the affidavit at the time of signing because he was suffering under blood pressure. The Rent Controller dismissed the application on the ground that there was no affidavit in support of the said application and further on the ground that there was no medical certificate in support of the illness of the petitioner. The review application filed by the petitioner was also dismissed.

The learned counsel for the petitioner submits that technicality should not have been allowed to stand in the way of the petitioner and he should have been allowed to adduce his evidence. In the first, instance, we are not convinced that any injustice had been done to the petitioner. The petitioner had failed to substantiate his illness before the Rent Controller by failing to produce medical certificate in respect of the illness and, therefore, the very basis of withdrawing the affidavit was not substantiated. Therefore, on this ground only the application could have been dismissed. The affidavit filed by the petitioner was an evidence and no party can be allowed to withdraw the evidence which he has filed. Of-course, the petitioner could have produced any other evidence which he wanted, but that opportunity or facility the petitioner has not utilized. The order passed by the Rent Controller was within his competence and he does not appear to have done anything wrong in passing such order.

We may also point out that review application filed by the petitioner was not competent in law because the Rent Controller does not have the jurisdiction of reviewing that order as there is no provision of review in the Sind Rented Premises Ordinance and it is settled law that unless the power of review had been granted, the authority cannot exercise that power.

The petitioner had not even filed the affidavit of his counsel, who had drafted original affidavit, to the effect that he had not been able to draft the affidavit according to the instructions conveyed to him by the petitioner. Moreover, the fact that the petitioner has. been allowed more than 1-1/2 months' time for the purpose of filing the affidavit is sufficient to indicate that enough time had been allowed to the petitioner for the purpose of giving instructions to the counsel and, therefore, the Rent Controller mad been quite indulgent before passing the said order.

It was not averred that the petitioner had any positive o withdrawing the affidavit which he had filed and, therefore, the Rent Controller is right to pass the order in his discretion. We cannot interfere in matters of discretion.

We are further of the view that the petitioner by filing this petition is trying to lengthen the proceedings and is making the effort to withdraw the case from the Rent Controller to this Court at the Interim stage while the position in law is that even an appeal is not provided to a litigant in rent case from an interim order.

The petition is, therefore, dismissed in limine. Misc. Application is also dismissed.

H . B . T . / A-174/ K Petition dismissed.

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