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First Rent Appeal No. 90 of 1980, decided on 31st May, 1981.

S. 2 read with Sind Rented Premises Ordinance (XVII of 1979) Dispute between landlord and tenant‑Appeal‑Order passed by Military Court at any time on or before 16th August, 1977 in any pro ceedings under Martial Law Order, 1977 [M. L. A's. (Zone C)] No. 20‑Held, deemed to have been passed under Sind .Rented Premises Ordinance, 1979.

Civil Petition No. 658 of 1977 fol.

Asif A. Zahidi for Appellant.

Habibur Rashid for Respondent.

Date of hearing : 31st May, 1981.

This is first rent appeal under section 2 of the Military Courts (Validation of Orders) Ordinance, 1980, against the order dated 25‑7‑1977 passed by the Summary Military Court‑B, Karachi. The file of the Martial Law Court is not available. However, it has been urged by Mr. Habibur Rashid, learned counsel for the respondent that the above appeal is not competent under the above provision for the reason that the property is situated in Cantonment area, whereas the Sind Rent Restriction Ordinance, 1979 is not applicable to properties situated in Cantonment area, in my view the above contention is devoid of any force for the reason that under section 2 of the Military A Courts Validation Order Ordinance, 1980 an order passed by the Military Court at any time on or before 16th August, 1977 in any proceeding under Martial Law Order 20 made by the Martial Law Administrator, Zone C was deemed to have been passed under the Sind Rented Premises Ordinance, 1979, in my view, the use of the words "an order" and "any proceeding" are wide enough in their import as to entitle the appellant to maintain the above appeal, as it cannot be deemed that the order under appeal was passed in a proceeding under Martial Law Order 20.

(b) It may be pertinent to refer to an extract from the judgment dated 16‑2‑1981 passed in C. P. No. 658 of 1977 passed by a Division Bench of this Court, to which I was a party, which reads as follows :‑

It may be pertinent to observe that the petitioner himself has filed a rent appeal, namely. First Rent Appeal No. 90/80 under subsection (2) of section 2 of the Validation Ordinance, within the time specified in the said Ordinance and which is still pending in this Court. However, it has been submitted by Mr. Asif Zahidi that the above appeal was filed by the petitioner' as a measure of abundant caution without prejudice to the pending petition. Be that as it may, in our view the effect of section 2 of the Validation Ordinance in that by fiction of law an order passed by the Military Court in any proceeding under the Martial Law Order 20 has been converted into an order passed under Sind Rented Premises Ordinance, 1979, subject to the right of an aggrieved party to file an appeal within 30 days from the date of the commencement of the said Ordinance. It may be noticed that in subsection (1) of section 2 the words used are an order' .and in any proceeding'. In our view the effect of the use of the above words is that the legality of the proceeding before the Military Court cannot be gone into for the purpose of determining as to whether subsection (1) of section 2 of the Validation Ordinance is attracted to or not. The impugned order is no longer an order under the MLO by a military Court, but by fiction of law it has been converted into an order passed under the Sind Rented Premises Ordinance, 1979. Since the petitioner himself has availed of the remedy by filing the appeal within the statutory period, we are inclined to hold that the above petition has become infructuous for the reason that the petitioner has availed of an adequate, alternate/efficacious remedy in the form of the said appeal. In our view it will be open to the petitioner to urge whatever legal or factual pleas be may wish to i . raise before the appellate Court."

2. (a) It may also be pointed that the above petition was also filed by the present appellant, to which the respondent was also a party. The above judgment is not only binding on the parties of the above appeal, but also on me as it is a Division Bench judgment. In this view of the matter it is open to the appellant to agitate the question that ejectment proceedings were not competent under M. L. O. 20 as at the material time M. L. O. 20 did not cover the properties situated in cantonment areas. It is an admitted position that M. L. O. 20 at the material time was not extended to the cantonment areas, and, therefore, the order under appeal cannot be sustained.

(b) As regards merits of the case, it will suffice that there is no evidence on the record to support the order under appeal, and, hence, the same cannot be upheld.

M. Y. M. Order accordingly.

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