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-- S. 15 (4)-Second appeal - Second appeal .lies against order passed on appeal' as distinguished from order passed 'in appeal-- Order passed by 1st appellate Court, in exercise of its appellate jurisdiction, held, not appealable.- [Appeal (civil)]

Din Muhammad v. Hidayat Hussain P L D 1968 Lah. 207 and Ghulam Mustafa v. Mian Waqar Ahmad P L D 1980 S C 9 fol.

Azhar Ali Siddiqui for Appellant.

Mushtak Ahmad Riazi for Respondents.

Dates of bearing : 7th and 11th April, 1982.

This appeal is directed against the order passed on 11th December, 1980 by the learned III Additional . District Judge, Karachi whereby an application filed under Order XLI, rule 19, C. P. C. for re-admission, of the appeal dismissed in default, was rejected.

1. The brief facts of the case are that the respondent had filed the ejectment case against the appellant under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1959. This application was allowed by the IVth Senior Civil Judge/Rent Controller, Karachi, by order passed on 30th April, 1975 and the appellant was directed to put the respondent /landlord in possession of the disputed premises within one month of the passing of the said order.

2. Against the above order an appeal was preferred being Rent Appeal No. 332 of 1975 by the present appellant/tenant which however was dismissed' for non-prosecution on 3rd September, 1979 by the learned 1st Appellate Court.

3. An application under Order XLI, rule 19, C. P. C. read with section 151, C. P. C. for re-admitting the appeal was moved on 2nd October, 1979 on behalf of the appellant. This application however was dismissed on 11th December, 1980 on the ground that there appeared absolutely no cause for the absence of the appellant and his counsel on the date of hearing i. e. 3rd September, 1979.

4. .The above order has now been challenged by filing this Second Appeal under section 15 (4) of the Ordinance of 1959.

5. I have heard the learned counsel for the appellant and find that he could not make distinction between the present case and the case of Din Muhammad s. Hidayat Hussain (P L D 1968 Lah. 207), wherein it has been held that second appeal under subsection (4) of section 15 would lie only against the order passed "on appeal" as distinguished from order passed "in appeal"; in exercise of appellate jurisdiction. The above judgment was approved by the Honourable Supreme Court in the case of Ghulam Mustafa v. Mian Waqar Ahmad (P L D 1980 5 C 9).

6. For the reasons stated above, I find that the impugned order passed on 11th December, 1980 in Rent Appeal .No. 332/75 by is Appellate Court in exercise of appellate jurisdiction is not appealable to this Court under subsection (4) of section 15 of the Ordinance of 1959. The appeal is accordingly dismissed.

In the circumstances of the case, the appellant is granted six months time to vacate the premises subject to the condition that during this period she deposits rent with the Rent Controller every month. In case of default in deposit of rent for any month during this period or on failure of the appellant to vacate the premises on the expiry of the period granted as above whichever event happens earlier, writ of ejectment will be issued without prior notice to the appellant. .

M. Y. M. Petition dismissed.

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