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Second Civil Appeal No.248 of 1977, decided on 26th September, 1983.

---S. 15--Sind Rented Premises Ordinance (XVII of 1979), S.21--Remand of case--Contention that first rent appeal could not be dismissed in limine under S. 15(3) of Ordinance, 1959 and as appeal dismissed same be remanded, held, had no force--Ordinance, 1959 replaced by Ordinance, 1979 which deleted provision of first appeal to District Judge question of remand of case of first appellate Court, does not arise--Even if judgment of first appellate Court is ignored High Court competent to treat second rent appeal as first rent appeal and decide same as such.

Ismail and another v. Begum Hamida Saadat Ali 1968 S C M R 828; Nasir Ahmad and another v. Khuda Bakhsh 1976 S C M R 388; Pramatha Nath Chowdhury and others v. Kamir Mondal and others PLD 1965 S t 434 and Syed Masood Hussain and others v. Muhammad Saeed Khan and others P L D 1965 Lah. 11 ref.

---Ss. 13 & 15--Sind Rented Premises Ordinance (XVII of 1979), Ss.15 & 21--Default in payment of rent--Allegation of default in payment of rent not denied by tenant in written statement--Default having been admitted, held, no exception could be taken to ejectment order passed by Rent Controller.

Hashim Bhai R.Behlim for Appellant.

H.A. Rehmani for Respondent.

Date of hearing:26th September, 1983.

The respondent had rented out a building situated on Plot No. 11/6 Temple Road, Karachi to the appellant at Rs. 38 per month. The appellant stopped paying rent from September, 1970 for several years. On 17th June, 1975 a notice was given to the appellant by the respondent to pay rent. Even thereafter he did not pay rent to the respondent but started depositing rent in, the Court of Rent Controller. The respondent, therefore, filed ejectment application being (tent Case No. 2278 of 1975 in the Court of XIII Civil Judge and Rent Controller, Karachi.

2. In para. 4 of the ejectment application the respondent alleged that the appellant has failed to pay rent from September, 1970 to June, 1975. In reply to this para. the appellant stated as under:-

"3. With regard to para. 4 of the application it is submitted that no notice was received by this opponent. The applicant "personally does not collect rent. It is his rent-collector only who used to realise rent and was never regular in collecting rent although he was requested to collect rent punctually, rent was always paid when the rent collector came to receive. Ultimately the rent collector did not come for sufficiently long time nor any intimation was received by this opponent, thereafter the opponent happened to see the applicant near his flat on the building and requested him to receive rent but he said that his rent collector will come and collect rent."

As the default for five years was not specifically denied, hence the learned Rent Controller, after recording evidence of the parties, passed an ejectment order against the appellant vide his judgment dated 29th October, 1977.

3. Aggrieved by this judgment, the appellant filed appeal, being rent appeal No. 474 of 1977 in the Court of District Judge, Karachi. The appeal was dismissed in limine by Vth Addl. District Judge, Karachi by his judgment dated 3-12-1977. Aggrieved by the judgment of the learned Addl. District Judge, the appellant has filed this second appeal.

4. The learned counsel for the appellant has argued that his first appeal was dismissed in limine by the learned Vth Addl. District Judge which was in contravention of section 15 of the Urban Rent Restriction Ordinance of 1959 (hereinafter referred to as the said Ordinance). In support of this plea Mr.Hashim Bhai learned counsel for the appellant has relied on the case of Begum Humayun Zulifqar Ismail and another, v. Begum Hamida Saadat Ali 1968 S C M R 828 in which it has been held that first appeal should not generally be dismissed in limine under section 15(3) of the said Ordinance. He, therefore, urges that the case be remanded to the first appellate Court.

5. The argument of the learned counsel has no force because the Ordinance of 1959 has been replaced by the Rented Premises Ordinance of 1979, according to which there is provision of only one appeal to the High, Court. The provision of first appeal to the District Judge has been deleted, hence there is no first appellate Court in terms of section 15 of the 1959 Ordinance. The question of remand of the case to the first appellate Court does not arise.

6. On the contrary Mr. H.A. Rehmani learned counsel for the respondent has relied on the case of Nasir Ahmad and another v. Khuda Bakhsh 1976 S C M R 388, in which the Supreme Court has held that appellate Court has got the same powers as the Court below and that if sufficient material is available on record, then the appellate Court may itself decide the issue, not determined by the first Court. In another case namely, Pramatha Nath Chowdhury and others v. Kamir Mondal and others P L D 1965 S C 434 it has been held that if evidence on record is sufficient for appellate Court to decide the question itself, then remand of the case should not be ordered lightly. In another case, which is directly applicable to the facts of the present case, namely, Syed Masood Hussain and others v. Muhammad Saeed Khan and others P L D 1965 Lah. 11 it has been, held that the High Court on appeal from appellate order is competent to dispose of the case on merits and need not to remand the case back to the lower Court.

7. In view of the above decision the question that the first appellate Court has dismissed the appeal in limine becomes immaterial, so far as the powers of this Court to decide the appeal on merits are concerned. Even if the judgment of the first appellate Court is ignored, this Court is now competent to treat this appeal as first appeal under the Ordinance of 1979 and decide it as such. In this case the main ground for ejectment urged by the respondent was that the appellant had failed to pay rent for about five years. This allegation has not been denied by the appellant in his written statement, the relevant pare. of which has been quoted above. The default having been admitted, no exception can be taken to the order of the Rent Controller, whereby ejectment was ordered. This is not a case in which discretion to eject should be exercised in favour of the appellant. He had been persistent defaulter for almost five years. It could, therefore, be said that he was a wilful defaulter and was not entitled to any indulgence by the Court.

Consequently the appeal is dismissed with costs.

M . A . K . Appeal dismissed.

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