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‑‑ S. 15 (4), (5)‑Failure by tenant to deposit rent‑Landlord, during pendency of appeal, making an application to Addl. District Judge that tenant had not deposited rent in compliance with his direction Such application going to very root of appeal‑Order of Addl. District Judge disposing of appeal without going into application of landlord Held, in disregard of provisions of S. 15 (5) and therefore, open to interference by High Court‑Constitution of Pakistan (1973), Art. 199.

A. A. Joseph for Petitioner.

Ahmad Hassan Khan for Respondent No. 1.

Nemo. for Respondents Nos. 2 and 3.

Date of hearing : 2nd June 1982.

JUDGMENT

The facts giving rise to this writ petition are that the petitioner, Mst. Jamila Mehdi Khan, made an application against respondent No. 1, Mukhtar Ahmad Arshi, hereinafter referred to as the respondent, for his eviction from certain premises. The application was dismissed by a Rent Controller. The petitioner, therefore, went in appeal before an Additional District Judge. The appeal was, however, dismissed. Hence this constitutional petition.

2. It was contended by learned counsel for the petitioner that during the pendency of the appeal the petitioner had made an application to the learned Additional District Judge stating that the respondent had not deposited rent as directed by the learned Additional District Judge but he disposed of the appeal without making any order on the said application. This was not disputed by learned counsel for the respondent. According to subsection (5 of section 15 of the Punjab Rent Restriction Ordinance, 1959, the respondent's defence was liable to be struck off if he had not deposited rent in terms of the direction of the learned appellate authority. The application made by th petitioner went to the very root of the appeal and should, therefore, not have ‑been overlooked by the learned Additional District Judge as done by him. In my opinion, he dealt with the appeal in disregard of the said provisions o law and, therefore, the order made by him is open to interference by this Court.

3. Resultantly, I accept this writ petition with costs, set aside the order of the learned Additional District Judge for being without lawful authority and send back the appeal to him with the direction that be shall first decide the said application according to law. If the application succeeds, the appeal will have to be accepted ; but if the application fails, the learned Additional District Judge shall re‑decide the appeal on merits.

5. Q. Petition accepted.

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