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Second Appeal from Original Order No. 101 of 1979, heard on 29th May, 1979

(a) West Pakistan Urban Rent Restriction ordinance (VI of 1959)-

---S. 15 (3)-Ejectment--Default in payment of rent-Striking off defence-Impugned order not containing arts mention of original record having been obtained or appellate authority dismissing appeal in liming-First Appellate Court observing his order of there being no mention of name in a person in order of Rent Controller in whose favour rent was to ht- deposited-Order of Rent Controller clearly directing rent to be deposited in favour of respondent-Held: Apparently either fist appellate court did not obtain original record before dismissing appeal in limine or if he had misread same while making such observation of material character- Appeal, held further, not properly disposed of-Case remanded for fresh disposal in accordance with law.

Muhammad Taqui for Appellant.

Mian Muhammad Bashir for Respondent.

Date of hearing : 29th May, 1979.

This is a second appeal of a tenant, Muhammad Yasin whose ejectment from a shop has been ordered by striking off his defence.

In the ejectment application filed against him by the respondent, Mst. lqbal Begum, the Rent Controller, who was seized of the application, made an order on 9th May 1978 directing the appellant to deposit arrears of rent as well as future rent in favour of the respondent. He, however, deposited the rent in the name of her husband, Abdul Majid. The learned Rent Controller, therefore, struck off his defence and ordered him to vacate the shop in dispute. His appeal against the order of the learned Rent Controller was also dismissed by an Additional District Judge in limine.

3. Learned counsel for the appellant contended that the learned appellate authority could not dismiss the appeal in limine. In this connec tion he relied on the provisions of subsection (3) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and Begum Humayun Zulfiqar Ismail and another v. Begum Hdmida Saadat Ali (196 S C M R 828).

4. 1n reply, learned counsel for the respondent maintained that in the case out of which this appeal has arisen no evidence was recorded and, therefore, the learned Additional District Judge eras not obliged to obtain the record before dismissing the appeal in limine.

5. 1 have carefully gone through the impugned order and find that it does not contain any mention of the original record having been obtained by the appellate authority before dismissing the appeal in limine. One observation made by the learned Additional District Judge in his order is to the following effect :-

"There is no mention of the name of a person in order dated 9th May, 1978 in whose favour the rent was to be deposited."

1 have consulted the record received from the learned Rent Controller which shows that while making the order, dated 9th May, 1978, he clearly directed that the rent shall be deposited in favour of the respondent. It, therefore, appears that either the learned additional District Judge did no obtain the original record before dismissing the appeal in limine or, if h had the record before him. he had misread the same while making the above observation which is of material character. Be that as it may, 1 am firmly of the view that he has not properly disposed of the appeal filed by the appellant.

6. I therefore, without going into the other points involved is this case, accept the appeal, with costs, and remand the first appeal to the learned Additional District Judge, Mian Nabib-u.r-Rehman, for fresh disposal in accordance with law he parties are directed to appear before the learned Additional District Judge on 14th June, 1979. The record available in this Court shall be returned to him immediately.

M. Y. M. Appeal accepted.

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