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Second Appeal No. 373 of 1978, decided on 30th May, 1979.

--- S. 15 (3)-Appeal -Record, summoning of-Sending for record of case from Rent Controller and giving opportunity of hearing to parties before deciding appeal, held, incumbent upon appellate authority and appeal could not be dismissed summarily.

Humayan Zulfiqar Ismail v. Hamida Saadat Ali 1968 S C M R 828 ref.

---- Ss. 16 & 17 read with Civil Procedure Code (V of 1908), O. XVII, r. 1 (2)-Appeal--Adjournment-Costs-Power to grant costs for adjournment in cases under Ordinance-Not available to Appellate authority under Ordinance-District Judge, consequently possessed no jurisdiction to dismiss appeal on ground of non-payment of costs-Case, held further, could be decided ex parte but on merits. -[Adjournment-Costs].

Hafiz A. Baqi for Appellant.

Amanullah Alqadri for Respondent.

Date of hearing : 5th May, 1979.

This Second Appeal challenges the order of the learned Second Additional District Judge, Karachi, dated 18th September, 1 78, which is brief and reads as under :-

"Advocate for the respondent present.

Appellant was granted adjournment on the last date of hearing subject to payment of costs to the counsel for the respon dent but the appellant has failed to pay costs without any reasonable explanation. This application for further adjournment is rejected and the appeal stands dismissed accordingly.

(Sd.) Syed Fazal Hussain Shah,

Additional District Judge, Karachi.

18-9-1978."

The above order was passed in the background of the following facts.

2. The appellant is a tenant of the respondent in respect of a shop premises bearing No. 1, situated on plot No. 380, Block 1, Drigh Road Colony, Karachi. The respondent on 8th July, 1964, moved as applica tion under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of II Rent Controller, Karachi, seeking ejectment of the appellant on the ground of default in payment of rent since April, 1963, and committing acts injurious to the disputed house diminishing its value and utility.

3. The respondent in his written statement denied all the allegations and it was alleged that the appellant had refused to accept rent after April 1964. On such pleadings of the parties the learned Rent controller framed the following four issues :---

"(1) Whether the opponent committed default in payment of rent

(2) Whether the opponent has committed acts injurious to the property in question and has diminished the value and utility of it

(3) Whether the applicant needs the property in question for his bona fide use

(4) What should be the order

The learned Rent Controller as per his order dated 27th November, 1976 decided issue No. 1 against the appellant, No. 2 in the negative and no finding was given on issue No. 3 as the same did not arise out of the pleadings. The appellant preferred appeal against the said older which was dismissed as per above-quoted perfunctory order without at all going into merits of the case.

4. This appeal was admitted to consider the short point as to whether the learned Additional District Judge had jurisdiction to dismiss the appeal for non-compliance of his earlier order granting adjournment on payment of costs and refusing a further request for adjournment.

5. I heard Mr. Hafiz A. Baqi, learned counsel for the appellant, and Mr. R. H. Farooqi, as amicus curiae in the matter.

6. The power to hear appeal is conferred on the District and Additional District Judges under subsections (1) and (1-A) of the Urban Rent Restriction Ordinance, 1959 and the limit of their jurisdiction is circumscribed by the statute itself as laid down in subsections (2) and (3) of the Ordinance. The mandate of the statute in subsection (3) is as follow :-

"(3) The Appellate Authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller."

According to plain language of the above subsection it is incumbent, upon the appellate authority to decide the appeal brought before it after sending for the record of the case from the Rent Controller and after. giving the parties an opportunity of hearing. The question as to whether an appeal under subsection (3) could be dismissed summarily had come for examination before the Supreme Court in the case of Humayun up Zuy7gar Ismail v. Hamida Saadat Ali (1968 S C M R 828) and was answered in the negative. The learned Supreme Court held that subsection (3) of section 15 is a complete code of procedure in itself for the purpose of an appeal under that subsection. The impugned order is no better than an order dismissing the appeal summarily and cannot, therefore, be sustained. The other aspect of the case is that all the provisions of the Civil Procedure Code are not applicable to cases under the Ordinance, save as are contained in sections 16 and 17 of the Ordinance. la the circumstances, the power to grant costs for adjournment, as laid down in sub-rule (2) of rule 1 of Order XVII, C. P. C., was not available and the learned Additional District Judge consequently had equally no jurisdiction to dismiss the appeal on the ground of non-payment of costs. The case could at best be decided ex parte but on merits, which was not done.

7. In the result this appeal must succeed. The order of the learned Additional District Judge dated 18th September, 1978 is set aside with the direction that he should now decide the appeal on merits after notice to the parties. The respondent will bear the costs of this appeal.

K. M. A. Appeal allowed.

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