' RANA BHAGWANDAS, J.--- Leave to appeal in this case was granted to consider and examine the question whether the learned Judge in Chambers could not decide the appeal on merits in the absence of the appellant and his counsel. It was contended before the leave granting Bench that if on the date of hearing the appellant and his counsel were absent, only course open to the learned Judge was either to dismiss the appeal for non-prosecution or adjourn the hearing to some other day.
2. Facts giving rise to this appeal appear to be that eviction of the appellant was sought on the ground of default in payment of rent and on the ground of personal requirement of son of the landlord. Plea for eviction of the appellant was resisted before the Controller, who, on ultimate analysis, found the appellant liable to eviction on the ground of bona fide requirement of the premises by the landlord for the occupation of his son. Appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance 1979) against, the eviction order was fixed for hearing before the High Court on 8-12-1994 when none entered appearance on behalf of the appellant. Learned Judge in Chambers of the High Court, however, decided the appeal on merits with the assistance of the learned counsel for the respondent and dismissed the same, leading to the instant appeal with the leave of this Court.
3. At the hearing, Mr. A. Aziz Khan, learned Advocate Supreme Court assisted by Mr. Abdul Qadir Khan, learned Advocate Supreme Court reiterated that in terms of Order XLI rule 17, C.P.C., in the event of absence of the appellant, only option open to the Court was either to dismiss the appeal for non-prosecution or to adjourn the hearing to some other date. Learned counsel vehemently urged that the impugned judgment is vitiated which offends against the mandatory provision of Order XLI, rule 17, C.P.C. As well as section 21(3) of the Ordinance, 1979 and, thus, it is illegal, without jurisdiction and contrary to law. He relied upon Yusuf v. Rabia 1985 SCM R 1066, Muhammad Sadiq v.
Punjab Road Transport Board 1991 SCM R 2321 and Khudai Nazar v. Abdul Bari 1997 SCM R 1986 in order to reinforce his submission.
4. Conversely, Hafiz Abdul Baqi, learned Advocate Supreme Court for the respondent, dilating upon merits of the appeal contended that the respondent had been litigating for the enforcement of his right for the last thirteen years and, though succeeded in both the Courts, has been deprived of the fruits of the judgments on account of pendency of this appeal. On the question of law, raised by the learned counsel for the appellant, without specifically controverting the same, learned counsel agitated that the rule of law would be attracted in the event of hearing of civil appeals but could not necessarily be invoked in the case of First Rent Appeal, arising out of the provisions contained in the Ordinance, 1979.
5. Upon hearing learned counsel for both the parties, going through the impugned judgment and the leave grant order, we are afraid we cannot enter into the question of merits of the appeal, as the scope of the leave grant order is confined to the question of law raised before this Court. Since the leave to appeal was not granted for reappraisal of the evidence, it is difficult to subscribe to the submission of the learned counsel for the respondent. We have all the sympathies for a landlord, who, though successful in the original forum of law, has not been able to reap the fruits of his litigation for the last over one decade, the fact remains that this Court and for that matter every Court is bound by the mandate of Article 175 of the Constitution, which, inter alia, ordains that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". Provision of appeal against an order passed by the Controller is incorporated in section 21 of the Ordinance, 1979. Subsection (3) of this provision unequivocally stipulates that the Appellate Authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by Controller, make an appropriate order, which shall be final. No doubt, by virtue of section 20 of the Ordinance, 1979, the Controller and the Appellate Authority have been invested with the powers of summoning and enforcing the attendance of any person and examine him on oath; compelling production or discovery of documents; inspecting the site and issuing commission for examination of witnesses or documents, there appears to be no bar in law for invoking other equitable principles. It is true that the Rent Controller and the Appellate Authority under the Ordinance, 1979 are not civil Courts in the strict sense and may not be bound by the procedure prescribed under the C.P.C., in order to regulate their procedure, they can always invoke the broader equitable principles of the C.P.C. For dispensation of justice. In any event, Ordinance 1979 does not lay down any embargo on the power of the Appellate Authority, which before the recent amendment, happened to be the High Court of Sindh, to invoke and apply beneficial provisions of the C.P.C. For fostering the ends of justice and defeating the mischief.
6. Adverting to the case-law, in Yusuf's case (supra), while interpreting the provisions of Order XLI, rules 17 and 30, C.P.C. In the prospective of section 21(3) of the Ordinance 1979, it was observed that the Appellate Authority is not required to consider the merits of an appeal when the appellant himself does not prosecute the appeal. From the language of subsection (3), it appears clear that the Appellate Authority is required to go into the merits of the case when at the final hearing the parties appear before it and are given an opportunity of being heard. This Court observed that the Code of Civil Procedure authorizes the Court under Order XLI, rule 17, C.P.C. To dismiss the appeal forthwith in case the appellant does not appear when the appeal is called on for hearing. The rationale behind this observation is explained in terms that this salutary provision would obviate unnecessary wastage of valuable time at the disposal of the Court to be utilized on matters, in which parties are genuinely interested in prosecuting their cases. In order to attract the procedure contained in C.P.C., governing the hearing of an appeal under the Ordinance, 1979 strength was sought from the dictum of law reported as Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1, in which it was laid down that by virtue of section 117, C.P.C. a civil proceeding in the High Court is also governed by the provisions of the Code other than the provisions which are specially excepted. In Muhammad Sadiq's case (supra), a Full Bench of this Court laid down the dictum that if, after admission of the appeal for regular hearing, on the adjourned date of hearing the appellant is absent, under Order XLI, rule 17, C.P.C., a discretion is conferred on the Court to dismiss the appeal.
The exercise of such power under Order XLI, rule 17, C.P.C. Is not intended to be imperative but is discretionary. The dismissal for want of prosecution under this rule is not a decision on merits and under Order XLI, rule 19 C.P.C., on application of the appellant, the Court can readmit the appeal on such terms as to costs or otherwise as the Court thinks fit, provided the appellant shows sufficient cause for his non-appearance. On the other hand, if the appellant appears and respondent does not appear, the appeal may be heard ex parte. If the Court does not choose to dismiss the appeal, it has to be adjourned but this rule nowhere empowers the Court to render a decision on merits in the absence of the appellant. This rule of law was reiterated in Khudai Nazar's case (supra). This case arose out of proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959 which was repealed by Ordinance, 1979. Saleem Akhtar, J. (as his Lordship then was), speaking for the Full Bench laid down the dictum of law as under:--- "If a party is served with a notice of hearing and does not appear on the date of hearing, the Appellate Court can proceed with the case. In cases where the defaulting party is an appellant, the best course is to dismiss the appeal for non-prosecution and refrain from proceeding on merits.
These principles are enshrined in C.P.C. And have not been incorporated in section 15 of the Ordinance, but there is no prohibition to apply them as well."
' Reiterating the position of law, as reflected hereinabove, it was held that the principles of C.P.C. To the extent they have not been specifically excluded and tend to advance the cause of justice would be applicable to ejectment applications/proceedings.
7. In the light of peculiar facts and circumstances of this appeal and the law declared by this Court from time to time, there can be no cavil with the proposition that best option available to the High Court was to dismiss the appeal for non-prosecution or to adjourn the hearing to some other date.
It would be illegal and contrary to mandate of law to decide the appeal on merits without taking into consideration the view point of the appellant. To accept the contrary position would certainly unsettle the decided position of law, which is neither advisable nor permissible under the law. Even if we were to take .a different view on the question of law, only course open to us would, be to ask for constitution of a larger Bench as in the present state of law, we feel persuaded to be bound by the dictum laid down by two Full Benches of this Court.
8. Resultantly, this appeal succeeds with the consequence that the impugned judgment of the High Court is set aside and the appeal remitted to the file of the concerned District Judge for decision on merits expeditiously in view of the Sindh Amendment Ordinance No,XIV of 2001. No order as to costs.