980 PLP 895 (CLC)

Sh. Naveed Shehryar for Respondent. Dates of hearing : 28th and 29th October, 1979. This is an appeal by a tenant from an order of Malik Ahmad Nawaz, Additional District Judge, Sahiwal. dated 12th December, 1977, reversing an order of Mr. Shaukat Ali, Rent Controller, Okara, dated 13th December, 1976, whereby he dismissed the respondents' application filed under section 13 of the West Pakistan Urban Rent Restriction Ordinance for the ejectment of the appellant from the house in dispute.

2. The respondents had filed the ejectment petition in respect of house No. B-1-8-S,l7, Okara, on the grounds that the appellant had damaged the property that he had committed default in the payment of rent ; that the respondents required the house in good faith for their personal need and that the respondents wanted to reconstruct the property.

3. After both the parties bad addressed arguments in this appeal, learned counsel for the respondents submitted that this appeal was not properly constituted, because, along with the appeal the appellant bad failed to file a certified copy of the Rent Controller's order. Learned counsel for the appellant relying on Khair Mohammad Niaamani v. Abdul Kuddus (P L D 1965 Kar. 367) submits that omission to file certified copy of the lower Court's order with the memorandum of appeal was not fatal, and as such, the appeal could be proceeded with. In the judgment cited, it is observed that the omission to file a certified copy could be condoned by the Court. Keeping in view the circumstances of the case, the filing of the copy was infact condoned in that case.

4. In the present case, however, the question of condonation does not arise, because the appellant never filed any application under Order XL11, rule 2, C. P. C. It seems that no attempt, in the present case, at all, has been made for obtaining a certified copy and none has been filed.

5. Learned counsel for the respondents has relied on Mohammad Hanif v. Faqir Mohammad (P L D 1977 Lah. 1214) wherein a learned Single Judge has elabo rately dealt with the question. The appellant in that case had applied for a copy of the Rent Controller's order after the admission of his second appeal in the High Court. Along with his appeal, he had also made an application seeking exemption for the time being from producing a certi fied copy of the Rent Controller's order. In the circumstances, it was1A contended by the appellant in that case that in rent matters, it was not necessary to file a certified copy of the Rent Controller's order in second appeal. After examining the provisions of section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, as it stood at the relevant time, the learned Judge observed that in second appeals in rent matters provisions of Part VII (First Schedule) of the C. P. C. ranting to appeals "with such modifications as the context may require" were applicable. Order XLII, rule 2, C. P. C. requires that in addition to the copies speci fied in Order XLII, rule 1, the memorandum of appeal shall be accom panied by a copy of the judgment of the Court of first instance, unless the appellate Court dispenses therewise Since this provision appears in Part V11 of the Code, therefore, it has to be applied with the necessary modi fications to second appeals filed under section 15 (a) of the Rent Ordi nance. It was, therefore, held in the case of Mohammad Hanif as follows :-- "On the same principle Order XLII, rule 2, C. P. C. will apply to appeals under the Ordinance, I, therefore, agree with the argument of the learned counsel for the respondent that filing of such a copy is not dispensed with by the High Court. It is mandatory for the appellant to place such a copy on record within the period of limitation. If the provisions of rule 2 of Order XLII, C. P. C. are not complied with the appeal cannot b treated to be properly constituted, in any case, after the expire of the period of limitation for an appeal, such an appeal would be liable to be dismissed as barred by time."

6. The above-quoted observation applies to the facts of the present. case with full force. This appeal is, therefore, held to be improperly constituted and is dismissed as such. There shall, however, be no order) as to costs.

7. Learned counsel for the appellant, however, prays that the appel lant may be granted four months' time to vacate the house. Mr. Naveed Shahryar Advocate, has no objection. The appellant is, therefore, grant ed four months' time to vacate the premises. S. A. H, Appeal dismissed.