1979 PLP 506 (CLC)

Abdul Majid Shaikh for Appellants. Hussain Muhammad Naqvi for Respondent. Date of hearing : 25th March 1979. This is a second appeal against an order for the ejectment of the appellants, Sheikh Hafiz-ur-Rehman and 12 others from certain premises belonging to the respondent, Shafiq Ahmad.

2. The appellant's ejectment was ordered by a Rent Controller on the . ground that they had committed default in the payment of rent and that the respondent needed the premises for his own occupation. Feeling `aggrieved by the order of the learned Rent Controller the appellants went in appeal before an Additional District Judge, Mian Habab-ur-Rehman. The learned Additional District Judge, however, dismissed their appeal in limine. They have, therefore, come up in second appeal to this Court.

3. Learned counsel for the appellants contended .that the learned Additional District Judge could not dismiss the appeal In limine. He relied on the case of Begum Humayun Zulfiqar Ismail and another v. Begun ffamida Saadat Ali (1968 S C M R 828), in support of his contention.

4. In reply, learned counsel for the respondent maintained that while dismissing the first appeal in lmine the learned Additional District Judge simply committed an irregularity which did not invalidate the order made by him. He placed reliance on the case of Hajl Abdur Rehman v. Khushi Muhammad (P L D 1968 Lab. 1181), to support his argument.

5. The provisions of subsection (3) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as said Ordinance, are very clear on the point under consideration. According to these provisions, it is obligatory for the appellate authority to send for the record of the case and decide the appeal after giving the parties an opportunity of being heard and, if necessary, after making such further enquiry as it thinks fit either personally or through the Controller. In the case of Begum Humaymr Zulfiqar Ismail and another too the learned District Judge, acting as an appellate authority, had dismissed an appeal in limine, and it was ruled by the Supreme Court that there was no proper disposal of the appeal. The appeal was, therefore, remanded to the learned District Judge for fresh decision. Thus, according to their Lordships the Supreme Court, the failure of the learned District Judge to comply with the provisions of subsection (3) of section 15 of the said Ordinance was fatal to the order by which he had dismissed the appeal in limine. I, therefore with respect, express my inability to share the view taken by learned Single Judge of this Court in the case of Hajl Abdur Rehman, and relying on the Supreme Court ruling in the case of Begum Humayu Zulflqar Ismail and another, hold that the impugned order whereby the first appeal of the appellants herein was dismissed in limine is not sustainable.

6. Learned counsel for the respondent also urged that as the only plea raised by the appellants before the learned Additional District Judge related to the validity of the transfer of the property in dispute in favour of the respondent, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and that plea involved, a question of law, the Additional District Judge was justified in disposing of the appeal without summoning the record or hearing the parties. On the other hand, learned counsel for the appellants contended that he had himself argued the first appeal before the learned Additional District Judge and had pressed all the grounds taken in the memorandum of appeal. According to him, the observation of the learned Additional District Judge that he raised only one plea referred to by the learned counsel for the respondent is not based on facts. Learned counsel for the appellants has sworn to an affidavit in support of the position taken by him. Be that as it may, even if the learned counsel for the appellants had raised only one contention out of many mentioned in the memorandum of appeal, it did not warrant the non-observance of the mandatory provisions contained in subsection (3) o section 15 of the said Ordinance.

7. I have already held that the impugned order is not sustainable inasmuch as it was made without following the procedure laid down in subsection (3) of section 15 of the said Ordinance. I, therefore, accept the appeal, set aside the order assailed herein and remand the case for fresh disposal. Since Mian Habib-ur-Rehman, Additional District Judge, Lahore has already expressed his views on some aspects of the case, I direct there the appeal shall now be heard and disposed of afresh by the District Judge, Lahore, in accordance with the aforesaid provisions of law. The parties are directed to appear before the learned District Judge on 15th April 1979. The record of the case shall be sent to him well in time.

8. The order of the learned Rent Controller shall not be executed till the appeal is placed before the learned District Judge. Appeal accepted. Case remanded.