1980 PLP 1056 (CLC)

Allahdiya Saleem v. Abdul Qadeer P L D 1971 Lah. 311, ref. Habibur Rehman for Appellant. Z. C. Yalliani for Respondent. Date of hearing : 28 November 1979. This appeal under section 15 (4) of the Sind Rent Restriction Ordi nance, 1959 (hereinafter referred to as the Ordinance) arises out of the order dated 13-2-75 passed by the Ist Additional District Judge, Karachi dismissing the appeal of the appellant in limine.

2. The respondent filed eviction application against the appellant on the sole ground of non-payment of rent.

3. The appellant among other grounds challenged the relationship of landlord and tenant between the parties on the plea that the respondent bad by an oral sale agreed to transfer the premises in dispute to him for consideration which was partly paid and was partly payable in instal ments. The Rent Controller first took up the determination of the prelimi nary issue as to existence of relationship of landlord and tenant between the parties and by his order dated 18-7-74 gave a finding against the appellant holding that he continues to be the tenant of the respondent. Thereafter by order dated 15-8-74 under section 13 (6) of the Ordinance, the Controller directed the appellant to deposit the arrears of rent amounting to Rs. 4,160 before 31-10-74 and further to pay the current rent before the 15th of each calendar month. In the events that happened, however, the appellant was unable to deposit the arrears of rent within the prescribed period. Consequently, on 4-11-74 the respondent applied to the Controller for striking off the defence of the appellant. Before this application was decided, however, the appellant submitted an application on 11-11-74 requesting that in view of his acute financial difficulties he may be permitted to deposit the amount of arrears by in stalments. The Controller dismissed this application on 15-11-74 on the ground that already sufficient time had been granted to the appellant to deposit the arrears and, therefore, there was no reason to grant the application. Simultaneously, on the same day the Controller also allowed the application of the respondent and in consequence struck off the defence of the appellant ordering his eviction. The appellant appealed against the said order and by the impugned order the learned 4st Additional District Judge, Karachi acting as the Appellate Authority dismissed his appeal in limine.

4. The only point urged before me is that the order of the Ist Additional District Judge dismissing the appeal in limine without summoning the record of the case from the Controller, was ex facie illegal and in violation of the mandatory provisions of subsection (3) of section 15 of the Ordinance. Reliance in this behalf was placed on Humayoon Zutfiqar Ismail v. Hamida Saadat Ali (I). Learned counsel invoked the dictum laid down by their Lordships to the effect that subsection (3) of section 15 of the Ordinance is a complete Code of Procedure in itself for the pur poses of an appeal under that subsection and that an appeal cannot be dismissed under that subsection without first calling for the record of the case from the Controller.

5. Learned counsel for the respondent, on the other hand, argued that the facts of the cited case are distinguishable inasmuch as, in that that case some questions of fact -and law required decision which were ignored by the Appellate Authority in disposing of the appeal in limine. In other words, the submission was that the ratio of the decision is not that in all cases an order of summary dismissal of an appeal by the Appellate Authority without calling the record of the case from the Controller will necessarily be an illegal order in violation of subsection (3) of section

15. Learned counsel pointed out that the appeal before the Appellate Authority below was being pressed only on the point that the appellant being in straitened financial circumstances was entitled to the facility of deposit of the amount of arrears by instalments. This question, according to the learned counsel, could be decided on inter pretation of the relevant provisions of the law as was indeed done by the Additional District Judge shall, therefore, dispose of the appeal within a period of three months from the date of receipt of the record and proceed ings by him. There will, however, be no order as to costs. K. M. A. Appeal dismissed.