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Constitutional Petition No. 74 of 1968 and Civil Petitions Nos. 75 and 79 of 1986, decided on 14th May, 1987.

---Art. 199--Constitutional petition, maintainability of Constitutional petition, held, was not maintainable where in respect of same subject matter petitioner had already resorted to alternate remedy which was more efficacious and was pending before competent Court.

Habibur Rehman for the Petitioner.

Z.U. Ahmed for Respondents No. 1 to 5.

This order will govern the disposal of C.2. Nos. 75 and 79 of 1986. The petitioners in the above petitions had applied under Order I Rule 10 C. P. C. to be joined as party in Rent Appeal No. 12 of 1984 which was pending before the District Judge, Karachi South. This rent appeal was filed by respondent No. 6 against the order of ejectment passed by the Rent Controller, Cantonment in an ejectment case instituted by respondents No. 2 to 5 against respondent No. 7. The learned District Judge, South rejected the applications under Order I rule 10 C. P. C. while dismissing the appeal of respondent No. 6 as time-barred. The petitioners have impugned the order of District Judge in these petitions. The above petitions were admitted to regular hearing on 3-11-1986 without consideration of two Misc. Applications in the cases filed on behalf of the respondents No. 2 to 5 challenging the maintainability of petition. Subsequently when these applications were placed before the Honourable Chief Justice he was pleased to order their disposal first before hearing of the main petitions. I have accordingly heard the learned counsel for the parties on these applications and after hearing them I am of the view that both the petitions .can be disposed of on the basis of the arguments of learned counsel. The following is the background of present controversy. Respondents No. 2 to 5 who are the owners of plot bearing No. 249, Staff Lines, Fatima Jinnah Road, Saddar, Karachi, instituted a Rent Case No. 41 of 1976 against respondent No. 7 only for their eviction from the premises in their occupation. This rent application was granted by the Rent Controller Cantonment on 21st March, 1984 allowing eviction of respondent No. 7 alongwith all other persons who were to be found in possession of the premises claiming through respondent No. 7. Respondent No. 6 who was not a party in the above rent case challenged the above order of Rent Controller in Rent Appeal No. 12 of 1984 on the ground that the rent order passed against respondent No. 7 was not binding on them as they were in possession of the premises in their own right. During pendency of the above appeal the petitioners in the above petitions moved applications under Order I Rule 10 C. P. C. for being joined as a party in the said appeal. While the above applications for joining the petitioners as party in the Rent Appeal was still pending, respondent No. 6 moved the Court for unconditional withdrawal of his appeal. The withdrawal of appeal by respondent No. 6 was opposed by the petitioners on the ground that it was collusive and intended the defeat the rights of petitioners. The learned District Judge in the first instance deferred the consideration of the prayer for withdrawal of appeal by respondent No. 6 until disposal of applications under Order I Rule 10 C.P.C. filed by the petitioners but finally reached the conclusion that the appeal filed by respondent No. 6 was beyond time and dismissed the same as not maintainable. Since it was found by the learned District Judge that the appeal preferred by respondent No. 6 was not within time he also came to the conclusion that the application under Order I Rule 10 C.P.C. cannot be allowed as it was also beyond time. In addition to the above, the learned District Judge also observed that petitioners were not entitled to be impleaded as a party in the pending appeal.

Mr. Habibur Rehman, learned counsel for the petitioners contends that the learned District, Judge could not dismiss the application filed by the petitioners under Order l Rule 10 C.P.C. as Time-barred as the petitioners were never made a party in proceedings initiated by respondents No. 2 to 5 against respondent No. 7 It is also contended by the learned counsel that the learned District Judge while dismissing, their application Order I Rule 10 C.P.C. failed to take into consideration that the petitioners being the tenants of the premises in their own right were not bound by the decree passed in rent case instituted by respondents No. 2 to 5 against respondent No. 7. During the course of arguments learned counsel for the petitioners admitted before me that in the execution proceedings initiated by respondents No. 2 to 5 in pursuance of the order of Rent Controller directing ejectment of respondent No. 7 from premises the petitioners had filed objection under Order 21 Rules 99 and 100 C.P.C. asserting that they are in possession of the premises in their own right but this application was summarily rejected by the Rent Controller against that order the petitioners have preferred Misc: Appeal Nos. 117 and 118 of 1986 which are pending before the 4th Additional District Judge, South, Karachi. The learned counsel for the petitioners also stated before me that in the above appeals the petitioners have been granted stay order till 17th of July, 1987 by the appellate Court. In view of the above admission made by the learned counsel for the petitioners I am of the view that the present petitions are not maintainable as in respect of the same subject-matter the petitioners have already resorted to an alternate remedy which is more efficacious and which is pending before a competent Court. I accordingly dismiss these petitions as not maintainable, but it is clarified that dismissal of these petitions will not prejudice the petitioners in any manner in respect of their contention if it is available to them in law, to assail the order of ejectment passed by the Rent Controller against respondent No. 7 in any proceeding pending now on which could be brought hereinafter. There will be no order as to costs.

H . B. T. /A-228/ K Petition dismissed.

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