1983 PLP 922 (CLC)

S. 15(4)-Appeal-Finding on issue of subletting decided by Rent Controller against landlord who failed to appeal against same- Contention that issue could not be. agitated in second appeal, held, has no force - Landlord can support order of Rent Controller in appeal on ground different from one which was taken before him. Muhammad Tufall v. Barkat Ali P L D 1967 Kar. 151 rel. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- -- S. 15(4)-Second appeal beard and accepted ex parte as tenant and his counsel not present'- Rehearing of appeal on consent of parties-Grounds urged by respondent at rehearing already considered and High Court finding no reason to differ from its earlier conclusion accepting second appeal and ordering ejectment in circumstances. S. Mahmoodul Hassan for Appellant No. 1. Arninullah Khan for Respondent No. 1. Dates of hearing : 24th, 30th October and 7th November, 1982. This second rent appeal is directed against the order of 2nd Additional District Judge, Hyderabad, dated 29-9-1980 whereby the order of Rent Controller, granting ejectment of the respondent on grounds of default and personal requirement has been reversed. This appeal was originally heard and accepted by me on 5-4-1982 ex parte as the respondent and his counsel were absent. Thereafter, C. M. A. No. 919 of 1982 was filed by the respon dent praying for re-hearing of the appeal which was granted by consent on 25-4-1982 on terms stated in that order. I have heard . Mr. Mahmudul Hasan and Mr. Amanullah, the learned counsel for appellant and respondent No. 1. The learned counsel for respondent No. 1 has taken a preliminary objection as to the maintainability of this appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is contended by the learned counsel that the Ordinance No. VI of 1959 was repealed by the Sind Rented Premises Ordinance, 1979, and on repeal thereof only appeals and those cases which were fixed before the Rent Controller for arguments and judgments were saved which implies that only pending appeals may be decided under the repealed Ordinance and no further right of .second appeal is available to a litigant whose pending first appeal is decided after the enforcement of Sind Rented Premises Ordinance, 1979. It is also contended by the learned counsel for the respondent that in view of subsection (4) of section 27 which has been added subsequently to section 27 of the Ordinance the right of second appeal if any stands destroyed. The contention raised by the learned counsel for the respondent has no merit. The right of appeal is a substantive right which can be taken away only by express words or necessary intendment. There is nothing in the language of section 27 of the Ordinance XVII of 1979 which could support the contention of the, learned counsel. On the contrary subsection 4,2) of section 27 of the Ordi nance completely saved the pending appeals from the effect of appeal of Ordinance VI of 1959 which shows that the legislation did not intend to interfere with the right of appeal available to a litigant under the repealed Ordinance. The learned counsel for respondent No. 1 next contended that with regard to finding on the issue of subletting this question could not be agitated by the appellant in second appeal as he had failed to file an appeal against the order of Rent Controller who decided the issue of g subletting against the appellant.' In the case Muhammad Tufail v. Barkat Ali (P L D 1967 Kar. 151), a similar contention was considered by a learned Single Judge of the erstwhile High Court of West Pakistan and it was held that respondent can support the order of Rent Controller in an appeal on a ground different from one which was taken before the Rent Controller without filing appeal against the order of Rent Controller. I am in respectful agreement with the view expressed in the above case. The contention of the learned counsel for respondent No. 1 is accordingly overruled. The learned counsel for respondent supported the order of first appellant authority on the grounds of subletting, default in payment of rent and bona fide requirement on the reasoning given in the order of 1st Appellate Authority. Each one of the grounds urged by the learned counsel for C respondent No. 1 at the re-hearing were considered by me in my order dates 5-4-1982 and I do not find any reason to differ from my earlier conclusion. 1, therefore, for the reasons stated above and those stated in my order dated 5-4-1982, accept this appeal and grant ejectment of respondent as prayed in the ejectment application. 'I he respondent is however granted four months time to vacate, the premises subject to the condition that he shall continue to deposit monthly rent in Court in accordance with the direction of the Rent Controller. There will be no order as to costs in the circumstances of the case. Order accordingly.