1980 PLP 598 (CLC)

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- S. 15(3)-Disposal of appeal by Additional District Judge without having record before him-Provision of S. 15(3), being mandatory such credit, held, illegal-Appellant, further held, not obliged to show prejudice being caused to him by such disposal of appeal. [p. 599]B S. M. Zamir for Appellant. S. A. Sated for Respondent. Date of hearing: 13th October, 1979. This second appeal has been filed by a tenant, namely, Muhammad Anwar Butt whose ejectment from a house has been ordered on an application made by the respondents Muhammad Akbar.

2. The order of ejectment was originally passed against the appellant by a Rent Controller which was confirmed, in appeal, by an Additional District Judge while dismissing the first appeal of the appellant in limine.

3. Learned counsel for the appellant contended that the order of the learned Additional District Judge dismissing the appeal in lamina was violative of the provisions of subsection (3) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, inasmuch as the learned Additional District Judge had dismissed the appeal without going through the record of the case.

4. Learned counsel for the respondent conceded that the learned Additional District Judge did not have the record before him when he disposed of the first appeal. He, however, contended that no prejudice was caused to the appellant on account of the disposal of the appeal in the aforesaid manner and, therefore, the order of the learned Additional District Judge was not open to any legitimate exception. He cited Haji Ahdur Rehntan v. Krush.' Muhammad (P L D 1968 Lah. 1181), .Sh. If Muhammad Anwar v. Ch. Sultan Muhammad Khan and another (1974 S C M R 371) and Ahsanul Haq ere. v. Abdur Rahim (1979 S C M R 338), to support his arguments.

5. I have gone through the above authorities and find that except the case of. Haji Abdur Rehman the others have no bearing on the matter in issue. Earlier I had the occasion to consider the case of Haji Abdur Rehman while deciding another case, namely, Sh. Habib-ur-Rehman and 12 others v. Shafique Ahmad (1979 C L C 506), in which a point like the one involved in the, present case was canvassed. The case of Haji Abdur Rehman was cited before me for the proposition that if an appellate authority dismisses a first appeal in limine without looking at the record it amounts to an irregularity which does not invalidate the order of the appellate authority. 1, however, did not accept that proposition as I was of the view that when the appellate authority dismisses a first appeal in limine without going through the record, it is not proper disposal of the appeal and it deserves to be remanded to the appellate authority for fresh decision. What guided me in taking the above view was a Supreme Court ruling reported as Begum Hama run Zulfiqar Ismail v. Begum Hamida Saadat Ali (1968 S C M R 828). Nothing new has been brought to my notice by the learned counsel for the respondent to pursuade me to change my opinion therefore, reiterate the same in the case in hand also.

6. As for the plea of the learned counsel for the respondent that no prejudice had been caused to the appellant by the disposal of the appeal by the learned Additional District Judge without examining the record and, therefore, his order was not liable to be set aside, he did not refer me to any law for authority to support his argument. The provisions of subsection (3) of section 15 of the said Ordinance are mandatory and if they are not observed, this alone would make the order of the appellate authority illegal. The appellant was, therefore, not obliged to show that he was prejudiced by the order of the appellate authority dismissing his first appeal in limine without) consulting the record of the case.

7. Even if it is assumed that such dismissal of the first appeal cannot be taken exception to unless some prejudice is caused to the party loosing before the appellate authority, the appellant was certainly prejudiced due to the fact that the learned Additional District Judge had not even glanced through the original record. The grounds of appeal filed before the learned Additional District Judge would reveal that one of the objections raised by him against the order of ejectment passed by the learned Rent Controller was to the effect that the Rent Controller had "completely ignored the cross-examination on the witnesses produced by the respondent and has thus come to an erroneous finding". According to him the learned appellate authority had "completely closed Its eyes in regard to the cross-examination of the witnesses produced he the petitioner/respondent". This objection of the appellant was no; duly attended by the learned Additional District Judge because complete record of evidence was not before him ac the time of the disposal of the first appeal. In the circumstances, serious prejudice was caused to the appellant on account of the disposal of his appeal in the absence of the original record.

8. The upshot of the foregoing discussion is that there was no proper disposal of the first appeal of the appellant and therefore the order of the learned Additional District Judge cannot be sustained. This second appeal is therefore accepted and the first appeal is remanded t o the learned Additional District Judge for fresh disposal in accordance with law. There shall be no order as to costs.

9. The parties are directed to appear before the learned Additional District Judge on 4th November 1979. K.M.A???????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed?????????