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Second Appeal No. 146 of 1981, decided on 29th October, 1984.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

---S. 15(4)--Ejectment--Appellate Court, jurisdiction of--Ejectment on ground of default--Appellate Court holding that sufficient cause was made out for exercise of discretion in favour of respondent, set aside order of ejectment--Order impugned--Plea that lower Appellate Court did not have jurisdiction to exercise discretion vested in Rent Controller, repelled--Lower Appellate Court, while deciding appeal, can exercise all powers conferred on Controller under S. 13 of Ordinance (VI of 1959)--On basis of evidence on record, first appellate Court having taken a view in favour of respondent and unless it was perverse or arbitrary, second appellate Court should not take a different view even if such a view was possible on assessment of evidence--No ground for interference--Second Appeal dismissed.

P L D 1982 Kar. 180 ref.

1980 C L C 443 rel.

P.A. Gazdar for Appellant.

Abdul Majeed Khan for Respondent.

Date of hearing: 29th October; 1984.

The appellant purchased the disputed property in May, 1974. At that time the respondent was the tenant of the disputed shop and after the transfer he paid rent to the appellant upto October, 1975. Thereafter as no rent was paid the appellant filed ejectment application on 7-5-1976 on the ground of default in payment of rent. The respondent pleaded that the appellant had not served any notice under section 13-A and further that the address of the appellant was not available with him and he being an old man of 70 years remained sick and could not remit the rent and as the appellant used to come and collect the rent and did not turn up during this period the rent could not be paid. The learned Controller held that as rent had been paid after purchase of the property the plea of want of notice under section 13-A was not sustainable and on ground of default the application was granted. The respondent filed first appeal and the learned lower Appellate Court by the impugned judgment held that as the respondent was sick and did not have the address of the appellant sufficient cause has been mode out for exercise of discretion in favour of the respondent and the appeal was allowed.

Mr. P.A. Gazdar, the learned Advocate for the appellant has challenged the impugned judgment only on one ground namely, that the first lower Appellate Court did not have the jurisdiction to exercise the discretion vested in the Controller. The first lower Appellate Court while deciding the appeal can exercise all powers conferred on the Controller under section 13 of Urban , Rent Restriction Ordinance. There can be 'no dispute with this proposition. Mr. Abdul Majid the learned counsel for the respondent has cited P L D 1982 Kar. 180 where the appellate Court in a second appeal has exercised its discretion in favour of the tenant. Although Mr. Gazdar has not challenged the finding of the First Appellate Court Mr. Majid the learned counsel has contended that on the basis of the evidence on record the First Appellate Court has taken a view in favour of the respondent and unless it is perverse or arbitrary the second Appellate Court should not take a different view even if such a view is possible on assessment of evidence, The learned counsel has referred to 1980 C L C 443. The statement of law propounded by the learned counsel is correct. In the circumstances do not find any ground to interfere with the discretion exercised by the learned First Appellate Court. The appeal is, therefore, dismissed.

M.1.

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