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Civil Petition for Special Leave to Appeal No. 1123 of 1981, decided on 12th December, 1981.

(Against the judgment of the Lahore High Court dated 11‑11‑1981,

passed in S. A. O. No. 419 of 1979).

Civil Procedure Code (V of 1908)‑

--O. XLI, r. 23‑Remand (civil)‑Petitioner filing appeal before District Judge and appeal accepted on ground of petitioner/tenant's cross examination having not been recorded although his statement recorded and case remanded to trial Court for recording cross‑examination Landlady going to High Court in appeal against such order and High Court finding cross‑examination having in fact been already recorded and instead of remanding case proceeding to decide case on merits Held: High Court empowered to decide matter on merits itself instead of remanding case to Court below.‑[Remand (civil)].

Pramatha Nath Choudhury and 17 others v. Kamir Mondel etc. P L D 1964 S C 434; Fateh Ali v. Pir Muhammad and another 1975 S C M R 221 and Nasir Ahmad and another v. Khuda Bakhsh and another 1976 S C M R 388 ref.

Muhammad Ilyas Khan, Advocate Supreme Court with M. Z. Khalil, Advocate‑on‑Record for Petitioner.

Malik Muhammad Qayyum, Advocate Supreme Court with Sh. Abdul Karim, Advocate‑on‑Record for Respondent.

Date of hearing : 12th December, 1981.

‑‑Mst. Zahida Yousaf had taken Shop No. 23 Nicholson Road, Lahore, on rent from its owner Mst. Iftikhar Akhtar, res pondent, at the rate of Rs. 100 per month. The latter filed an application for ejectment of the petitioner on the ground of default and bona fide requirement of the shop for her son. The learned Rent Controller found that there was no default but accepted the application on the ground of bona fide requirement for use of her son and ordered the petitioner's eviction, by order, dated 27‑2‑1979. The petitioner filed an appeal before the learned District Judge, which was accepted on the ground that the petitioner/tenant's cross‑examination had not been recorded although his statement had been recorded. He remanded the case to the trial Court for recording the cross‑examination. The landlady filed an S. A. O. against the above‑noted order of remand and the High Court after going through the record found that the cross‑examination of the petitioner had, in fact, been recorded. The learned High Court instead of remanding the case proceeded to decide the case on merits. Accepting the S. A. O. it upheld the order of eviction passed by the learned Rent Controller, by the impugned judgment dated 11‑11‑1981. Hence the present petition.

2. The learned counsel for the petitioner has made a grievance o the fact that on finding that the petitioner's cross‑examination had in fact been recorded, instead of remanding the case to the first appellate Court the learned Judge in Chamber proceeded to decide the case on merits himself, According to him he had no authority, in law, to do so.

3. We are afraid this contention has no force, because as held in Pramatha Nath Chowdhury and 17 others v. Kamir Mondel etc. PLD1964SC434, Fateh Ali v. Pir Muhammad and another 1975SGMR221 and Nasir Ahmad and another v. Khuda Baksh and another 1976 S C M R 388, the High Court has the power to decide the matter in hand on merits itself, instead of remanding it on first decision to the Court below. As a matter of fact, in some cases it would be appropriate for the appellate Court to decide the matter itself, as observed by this Court in Mst. Hamida Begum v. Mst. Murad Begum and others P L D 1975 S C 624.

The petition is, therefore, dismissed as being without merits.

Petition dismissed.

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