P L D 1971 Lahore 311 (PLP)

It has been contended by learned counsel that the power of the appellate Authority to decide the appeals is contingent upon‑ (a) sending for the record of the case from the Controller, and (b) giving the parties an opportunity of being heard. The order is sought to be avoided on the ground that the appeal was disposed of without the other party, i.e. the respondent, being heard. It is no body's case that the appellants before the District Judge, who are the appellants before me also, were not heard before the appeal was disposed of. It is sought to be made out that the summoning of the respondent is a pre‑condition to the exercise of jurisdiction by the District Judge (appellate Authority) and that the order is bad because of absence of jurisdictional fact.

4. Section 15(4) of Ordinance VI of 1959 gives the right to prefer an appeal to‑ "any party aggrieved by an order passed on appeal by the appellate Authority." The present appeal would, therefore, be competent only if the appellant could show that he is a "party aggrieved". To be aggrieved a person must have some grievance, and the letter has been defined in the Shorter Oxford English Dictionary, Volume I, at page 831 as‑ "the infliction of wrong or hardship on a person ; injury, oppression ; a cause or source of injury . . . . . In modern use, something (real or supposed) which is considered a legitimate ground of complaint." Had the appellant not been beard he would certainly have been a person upon whom a wrong had been inflicted ; he would have been a person oppressed and the circumstance that he had not been heard would certainly have been oppressive and, therefore, he would have a legitimate ground of complaint. Similarly, if the decision had been against the present respondent, he would have been a person aggrieved because he would have been condemned unheard. The argument, that the present appellant was a aggrieved because his appeal was dismissed without sending for the respondent, has only the merit of ingenuity in its favour. Since he is not a person aggrieved, the appeal on his behalf is not. competent and could, therefore, be dismissed on the short ground.

5. Reliance was placed on Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali (1968 S C M R 828), in support of the contention that the learned Rent Controller could not have disposed of the appeal without hearing the respondent. It was observed in that case that‑ "But in the present case it appears to us that subsection (3) of the Rent Restriction Ordinance clearly incorporates within it the rule that the appellate authority will not dispose of the appeal without first sending for the record of the case from the Controller on hearing the parties and further if necessary, making such further enquiry as it deems fit. The duty to call for the record in the first instance is imperative. It is difficult therefore to agree that under this subsection the appellate authority could dismiss an appeal in limine." The facts of that case, however, are materially different in so far as the learned appellate Authority did not send for the record, at all, and the ratio of that judgment is that since "in an original appeal or what is more commonly called a first appeal, the first appellate Court is the final Court of facts". Dismissal of a first appeal is, therefore, not a general rule, the reason being that a final determination of fact could be made only when the record containing the facts is before the Court of appeal. As observed by their Lordships, therefore, in a case under the Rent Restriction Ordinance which specifically provides for calling of the record, it is not permissible to dismiss such an appeal without first doing so. In the case before me, the grievance is not that the record was not called for but that the respondent was not heard. Their Lordships were not dealing with a case where the grievance was that the respondent had not been heard and, therefore, the aforesaid ruling is not an authority for any such proposition. If the interpretation placed by learned counsel were to be accepted, the result would be that one of the parties could make it impossible for the appeal to be disposed of even if the learned appellate Authority finds it to be without any substance simply by avoiding service for as long as it can. This certainly could not be the intention of the Legislature. The hearing of the parties therefore becomes necessary only when after perusing the record and hearing the appellant the appellate Authority finds prima facie force in the attack launched by the appellant against the judgment under appeal. The purpose of providing the respondent with an opportunity of being heard before the disposal of the appeal is to enable him to place his point of view before the Court so that he is not condemned unheard, because it is this principle of natural justice which is the basis of the provision for giving notice to the affected party and hearing it before a case is disposed of against it. It would be extremely illogical, unreasonable and a departure from established norms of law and the interpretation put upon provisions for notice throughout the ages for me to hold that even if the learned appellate authority after perusing the record and hearing the appellant finds no case whatsoever fn favour of the appellant and, on the contrary, is of the confirmed view that the appeal should be dismissed he should still waste money and public time by issuing process to the respondent and waiting for his appearance. His appearance would not serve any purpose useful or otherwise and is, in any case, not required by the law unless there is a prima facie case made out by the appellant before the learned appellate authority on the basis of the record of the lower Court.

6. It may also be taken note of in passing that one of the reasons which impelled their Lordships to remand the case to the District Judge was‑ "that the questions of fact and law involved in this case were not such as could have been disposed of in such a summary manner." The learned Rent Controller as well as the First Court of Appeal had failed to give a finding on an important question of fact and another of law, and that is why their Lordships observed‑ "It is clear therefore that both on facts and law this was not a case which could have been dismissed in limine by the final Court of facts."

7. In the present case, the only points which were urged before the learned Appellate Court were that‑ (a) rent had been paid and no default in fact been committed, (b) delay in the payment of rent was due to sickness, and (c) that the power of attorney in favour of Captain Amanat Ullah did not permit him to file the application before the Rent Controller for ejectment of the appellant. The learned District Judge dealt with all these points and I may say that his conclusions on the questions of fact which are based on the testimony of Ghulam Ahmad (R. W. 1). Azmat Ullah (R. W. 2) and the predecessor‑in‑interest of the appellants R. W. 3 are unassailable: All that these witnesses could prove was that once a sum of Rs. 100 was sent through Ghulam Ahmad in December 1962 towards payment of rent and that the respondent refused to receive it. The other witness similarly deposed about a sum of Rs. 240, but the testimony of both of them made it clear that each time the tender was made during the pendency of the proceedings from which the present appeal has arisen. No doubt, that could not help the tenant out of his predicament. Even the tenant himself stated that he had tendered Rs. 240 as rent but the landlord refused to receive it. Even if this had been done before the matter became pending before the Court it would have been of no avail to the tenant because a sum of Rs. 240 would represent the rent for twenty‑four months and this by itself would have established a default on his part. The plea that the rent could not be tendered because the tenant was sick, was not supported by any evidence except bold the statement of the tenant. The act of the learned appellate Authority in rejecting this testimony was absolutely unexceptionable.

8. The contention, that the Mukhtarnama did not authorise the Attorney to file the application is equally baseless. It unequivocally gives the Attorney the power of a "Intezam‑o -Insaram". The power to manage and to receive the rent necessarily includes the power to take necessary proceedings, if the rent is not voluntarily paid by the tenant, for the recovery of rent, or ejectment. Ejectment for default is after all an act of management.

9. The learned Additional District Judge had, therefore, dealt effectively with the two contentions of the appellant before him and they could not have been dealt with in a better manner if the other party were heard. In fact, the party should have been beard only if the plea of the appellant had impressed the learned appellate authority. In these circumstances the learned first appellate Court acted correctly and in accordance with law in disposing of the appeal after calling for the record bit without hearing the respondent.

10. This appeal, is, therefore, dismissed with costs. The appellants shall vacate the premises in dispute and hand over possession to the respondent forthwith. K. B. A. Appeal dismissed.