1984 PLP 514 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑The petitioner who is the landlord in respect of a building situated at Sohrab Katrak Road, Karachi, brought an ejectment application against the respondent under section 13 of the Urban Rent Restriction Ordinance, 1959, in which the learned Rent Controller, at the appropriate stage of the proceedings passed the tentative rent order on 4‑1‑1979 under section 13(6) of the said Ordinance in the following terms:-- "Heard Advocate for the parties, Persued the record and statement of rent account filed by the parties. The applicant claims rent from 1‑8‑1977 to 31‑8‑1978 at the rate of Rs. 3,

200. The opponent claims that he had deposited rent from August, 1977 to October, 1978 at the rate of Rs. 3,300 in the account of applicant. Applicant should verify. In the circumstances the opponent is directed to deposit arrears of rent from 1‑8‑1977 to 31‑12‑1978 at the rate of Rs. 3,2C0 less the amount deposited in applicant's account, on or before 31‑1‑1979. The excess amount paid by the opponent be adjusted towards future rent. The applicant is further directed to keep on depositing current and future rent in Court in the case on 14th of each calendar month at the rate of Rs. 3,200 per month till the disposal of the case, Put off to 15‑1‑1979 for statement of issues." On 6‑2‑1979 the petitioner moved the Rent Controller for striking off the defense of the respondent on the ground that he had failed to deposit the rent as directed in the aforesaid order. It seems that admittedly no amount had been deposited by the respondent in the Court.. However‑, the explana tion of the respondent in the written objections submitted by him, was that the petitioner had received a sum of Rs. 3,W0 as excess rent which had to be adjusted in terms of the aforesaid order dated 4‑1‑1979 and also that the petitioner had received rent up to February, 1979 as per the Pay‑in‑slip of his account, which constituted the waiver of his right. The learned Rent Controller after considering the case of the parties came to the conclusion that the respondent had failed to deposit rent and accordingly struck off his defence as per his order dated 18‑3‑1979. This order was upheld in appeal by the First Appellate Court vide the judgment of learned VIIIth Additional District Judge, Karachi dated 15‑3‑1980. Aggrieved by this judgment, the respondent preferred a Second Appeal before the High Court which has been allowed as per the judgment dated 21‑9‑1982, whereby the case has been remanded to the Rent Controller for further proceedings in accordance with law. Before the High Court the petitioner had raised a preliminary objection as the competency of the Second Appeal in this case but the learned Single Judge of the High Court rejected this objection and held that the Second Appeal was competent. The petitioner is aggrieved by the last mentioned judgment and seeks leave to appeal.

2. Mr. Fakhruddin G. Ebrahim, the learned counsel appearing for the petitioner in support of the petition assailed. the judgment of the High Court both on the merits as well as on the question of maintainability of the Second Appeal. On the merits it was contended that the order of the Rent Controller dated 4‑1‑1979, not having been upset and having been allowed to remain in the field there was no justification for remanding the case to the Rent Controller, since on established facts on the record, the respondent at least' committed default in not depositing the rent in Court for the months of October to December, 1978. As regards the maintainability of the appeal it was pointed out that on 21‑I1‑1979 when the Urban Rent Restriction Ordinance, 1959 was repealed and replaced by the Sind Rented Premises Ordinance, 1979, the First Appeal of the respondent was pending before the learned, Appellate Authority and 3rd Additional District Judge, Karachi. This appeal was decided on 15‑3‑1980 and the contention of the learned counsel is that by virtue of the provisions of the new Ordinance of 1979 which was in operation on this date, there was no further appeal provided against the order of the Appellate Authority to the High Court. Reference has been made to section 21 of the Ordinance of 1979 which provides for only one appeal against the order of the Controller to the High Court. The view taken by the High Court is that since the ejectment application was filed on 21‑5‑1978 on which date the existing law provided for a Second Appeal, the right to file a Second Appeal was a vested right accruing to both parties on the date of the institution of the proceedings. Section 27 of the Sind Rented Premises Ordinance, 1979 reads as follows :‑ "Repeal.‑(1) The Sind Urban Rent Restriction Ordinance, 1959 is hereby repealed. (2) All appeals, and such cases before a Controller as are fixed for argu ments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance. (3) All other cases instituted under the Ordinance mentioned in sub section (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall notwithstanding any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance. Notwithstanding the provisions of subsection (2) all orders made in pursuance thereof and any order made under the Ordinance mentioned in subsection (1) in any proceedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provisions of section 22." The argument of the learned counsel is that in view of the clear provisions of subsections (2) and (3) above, the right of Second Appeal against orders passed in the pending First Appeals under the repealed Ordinance was taken away and, therefore, no Second Appeal was competent in such cases before the High Court under the repealed Ordinance.

3. After hearing the learned counsel we feel that the contentions raised by him specially the question of the competency of a Second Appeal in cases to the nature mentioned above are substantial questions of public importance. Leave is accordingly granted. Security Rs. 2,

000. The appeal shall be heard on the same record with liberty to the parties to submit further documents if any, in view of the nature of the question raised which may affect a large number of cases, we would order early hearing of this appeal. S. Q. Leave granted.