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Second Appeal from Original Order No. 480 of 1978, decided on 4^th November, 1979,

-- S. 15-Second appeal-Additional District Judge dismissing appeal for non-prosecution as well as non-deposit of rent due to absence of counsel and appellant-Contention that order on merit cannot be passed in appeal in absence of appellant or his counsel, held, correct-Words "as well as non-deposit of rent" omitted from order in circumstances of case.-[Second appeal].

Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd., Karachi and another P L D 1976 Kar. 268 and Kawleshwar Singh and another v. Reghubir Singh and others A I R 1960 Pat. 299 ref.

C. A. Rehman for Appellant.

Raja Muhammad Muzaffar fox Respondents.

Date of hearing 4th November, 1979.

The facts giving rise to this second appeal are that the respondents, Mst. Musarrat Begum and another, filed an application for ejectment of the appellant, Sh. Abdul Rehman, from a house. The only ground pressed by the respondents for the eviction of the appellant was that he had committed default in the payment of rent. The appellant resisted the application inter alia on the ground that the relationship of landladies and tenant did not exist between the parties. This plea, however, did not find favour with the learned Rent Controller and since the appellant had not alleged the payment of any rent be ordered the appellant to vacate the house in distaute. On this, the appellant filed an appeal before the District Judge. On 4th June, 1978, the learned District Judge directed him to deposit Rs. 4,300, as arrears of rent for the period from Ist December, 1974 to 30^th June, 1978, on or before the 15th of June, 1978. The appellant, however, did not comply with the order of the learned appellate authority relating to the deposit of rent. The appeal came up before the learned District Judge on 16th July, 1978, when no body was present to prosecute it. The learned District Judge, therefore. dismissed the appeal in default and for non-deposit of rent in pursuance of his direction. Feeling aggrieved by the order of the learned District Judge the appellant has come up- in second appeal to this Court.

2. The order of the learned District Judge is in Urdu and reads thus: 4- 6-78

3. Learned counsel for the appellant contended that as the appellant or his counsel was not present on 16th July, 1978, before the learned District Judge when the impugned order was passed he should - have simply dismissed the appeal for non-prosecution without reference to the merits of the case but since he had dismissed the appeal on the ground of non-deposit of rent also he had decided the appeal on merits for which there was no warrant in law. He cited Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd., Karachi and another (1), to support his contention.

4. It was also urged by the learned counsel for the appellant that since there was dispute regarding the existence of relationship of landladies and tenant between the parties the learned . District Judge could not make an order regarding the deposit of rent under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, especially when the Rent Controller had not made such an order.

5. In reply, learned counsel for the respondents submitted that the learned District Judge had, in fact, dismissed the appeal in default and had made reference to the non-deposit of rent by the appellant with a view to high-lighting his indifference towards the appeal filed by him and, therefore, no valid exception could be taken to his order on the ground that he bad touched upon the merits of the case as well. He cited Kawleshwar Singh aced another v. Raghubir Singh and others (2), to submit. that notwithstanding the aforesaid reference to the non-deposit of rent the order of the learned District Judge would be deemed to be an order dismissing the appeal for want of prosecution.

In the case of Messrs S. M. Abdullah & Sons cited by the learned counsel foe the appellant, an Additional District Judge had dismissed an appeal on merits in the absence of, the appellant. Thereafter the appellant made an application for re-admission of the appeal but the application was dismissed 'by the learned Additional District Judge on the ground that the same was not competent, as the appeal had been dismissed on merits and not in default. This order of the learned Additional District Judge was challenged by the A appellant before the High Court of Sind, by means of an appeal, and it was ruled by that High Court that the absence of the appellant at the time o, bearing of the appeal did not empower the Appellate Court to dismiss the appeal - on merits. In the case of Kawleshwar Singh and another, relied upon by the, learned counsel for. the respondents, also it was held that where an appeal is disposed of on merits in the absence of the appellant, the order of the Appellate Court would be deemed to be an order of dismissal of appeal in default. Thus, the authorities cited on both sides support the proposition that the order passed by the learned District Judge, was, in fact, an order dismissing the appeal in default. In this view of the matter, his reference tee the non-deposit of rent by the appellant would be deemed to be redundant. I, therefore, need not examine the contention of the learned counsel .for 'the appellant relating to the illegality of the order for the deposit of rest.

7. In result, I modify the impugned order of the learned District Jud by omitting the following words there from:-

The appeal is disposed of accordingly, with no order as to costs.

M. A. K. Appeal dismissed.

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