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Civil Appeal No. K‑119 of 1981, decided on 8th March, 1984.
(On appeal from the Judgment and order of the High Court of Sind at Karachi dated 30‑3‑1981 passed in Second Appeal No. 232 of 1977).
‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.15(4)‑‑Ejectment‑‑Ex parte order passed in Second Appeal‑ Concurrent order of ejectment set aside‑‑Case having been transferred from one Judge to another without knowledge of appellants or their counsel, appellants unable to represent their view point for no fault of theirs‑‑Opportunity, held,. To be given to appellant to represent case before High Court in second appeal‑‑Case remanded for restoration of second appeal and early decision afresh, after notice to parties.
A. F. M. Muokarim, Advocate Supreme Court instructed by Faizanul Haq,
Advocate‑on‑Record for Appellants.
Mrs. Salima Nasiruddin, Advocate Supreme Court instructed by M. Shabbir Ghaury,
Advocate‑on‑Record for Respondents.
Date of hearing: 8th March, 1984.
.‑‑Appellants Mst. Rukiya Bai and others are owners and landlords of shop premises in dispute in this case and were granted an ejectment order by the Rent Controller on the ground that respondents Mst. Aqila Begum and others had sub‑let the premises without the written consent of the landlords. The First Appeal of the tenant having been dismissed by a learned Additional District Judge, Karachi, they filed a Second Appeal before the Sind High Court being Second Appeal No. 232 of 1977. In the events that happened on 30‑3‑1981 this appeal was fixed according to the cause list issued and published by the High Court before Mr. Justice G.M. Kourejo but before it was called up for hearing, it seems to have been transferred to the file of another learned Single Judge, namely, Mr. Justice Saleem Akhter for disposal. When the latter learned Judge took up the case for hearing neither the respondents before him (the appellants in the present appeal) nor their counsel was present. He, therefore, heard and disposed of the appeal ex parte as per his judgment dated 30‑3‑1981 whereby he allowed the appeal of the tenants and set aside the orders of their eviction passed by the Rent Controller.
2. The appellants on approaching this Court were granted leave to appeal to consider whether in the circumstances mentioned above, the disposal of the Second Appeal by the High Court by the impugned judgment, was in accordance with law.
3. In support of this appeal Mr. A.F.M. Muokarim, learned Advocate for the appellants had submitted that the abrupt transfer of the Second Appeal of his clients from the file of one learned Judge to the other on account of administrative reasons was wholly without their knowledge or of their counsel and, therefore, they are entitled to be re‑heard in opposition to the Second Appeal filed by the tenants. Mrs. Salima Nasiruddin appearing for the respondents very candidly conceded that the appellants were caught unawares and were indeed unable to represent their point of view before the learned Judge of the High Court for no fault of theirs. She, therefore, raises no objection to the acceptance of this appeal.
4. In view of above we agree with the submissions of the learned counsel that it will be in the interest of justice that the appellants be given an opportunity to represent their case before the High Court in the Second Appeal arising out of the order concurrently passed in their favour. We, therefore, allow this appeal and set aside the judgment passed by the learned Single Judge dated 30‑3‑1981. The result is that the case shall be remanded to the High Court and will be readmitted under the same number and disposed of in accordance with law after notice to the parties. As considerable time has been taken since the passing of the impugned judgment in the proceedings of this appeal, we would request the High Court to dispose of the Second Appeal on a priority basis as soon as possible. In the circumstances of the case there will be no order as to costs.
M . I . Appeal allowed.
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