' This appeal under section 15 (4) of the Sind Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) arises out of the order dated 13-2-75 passed by the 1st Additional District Judge, Karachi dismissing the appeal of the appellant in limine.
2. The respondent filed eviction application against the appellant on the sole ground of non- payment of rent.
3. The appellant among other grounds challenged the relationship of landlord and tenant between the parties on the plea that the respondent bad by an oral sale agreed to transfer the premises in dispute to him for consideration which was partly paid and was partly payable in instalments. The Rent Controller first took up the determination of the preliminary issue as to existence of relationship of landlord and tenant between the parties and by his order dated 18-7-74 gave a finding against the appellant holding that he continues to be the tenant of the respondent.
Thereafter by order dated 15-8-74 under section 13 (6) of the Ordinance, the Controller directed the appellant to deposit the arrears of rent amounting to Rs, 4,160 before 31-10-74 and further to pay the current rent before the 15th of each calendar month. In the events that happened, however, the appellant was unable to deposit the arrears of rent within the prescribed period. Consequently, on 4-11-74 the respondent applied to the Controller for striking off the defence of the appellant. Before this application was decided, however, the appellant submitted an application on 11-11-74 requesting that in view of his acute financial difficulties he may be permitted to deposit the amount of arrears by instalments. The Controller dismissed this application on 15-11-74 on the ground that already sufficient time had been granted to the appellant to deposit the arrears and, therefore, there was no reason to grant the application. Simultaneously, on, the same day the Controller also allowed the application of the respondent and in consequence struck off the defence of the appellant ordering his eviction. The appellant appealed against the said order and by the impugned order the learned 4 1st Additional District Judge, Karachi acting as the Appellate Authority dismissed his appeal in limine.
4. The only point urged before me is that the order of the 1st Additional District Judge dismissing the appeal in limine without summoning the record of the case from the Controller, was ex facie illegal and in violation of the mandatory provisions of subsection (3) of section 15 of the Ordinance.
Reliance in this behalf was placed on Humayoon Zulfiqar Ismail v. Hamida Saadat Ali (1). Learned counsel invoked the dictum laid down by their Lordships to the effect that subsection (3) of section 15 of the Ordinance is a complete Code of Procedure in itself for the purposes of an appeal under that subsection and that an appeal cannot be dismissed under that subsection without first calling for the record of the case from the Controller.
5. Learned counsel for the respondent, on the other hand, argued that the facts of the cited case are distinguishable inasmuch as, in that that case some questions of fact and law required decision which were ignored by the Appellate Authority in disposing of the appeal in limine. In other words, the submission was that the ratio of the decision is not that in all cases an order of summary dismissal of an appeal by the Appellate Authority without calling the record of the case from the Controller will necessarily be an illegal order in violation of subsection (3) of section 15.
Learned counsel pointed out that the appeal before the Appellate Authority below was being pressed only on the point that the appellant being in straitened financial circumstances was entitled to the facility of deposit of the amount of arrears by instalments. This question, according to the learned counsel, could be decided on interpretation of the relevant provisions of the law as was indeed done by the(1) 1968 C R 828 Appellate Authority and no reference to the record of the case was required. The submission of the learned counsel is very luring. However, after, going through the cited judgment I feel bound by the decision of this question of law by their Lordships.
The rule was laid down in the aforesaid judgment in the following words : "Dismissal under Order XLI, rule 11 of the Code of Civil Procedure of a first appeal is, therefore, not the general rule. If the facts are not simple or undisputed a first appeal is not generally dismissed in limine. But in the present case it appears to us that subsection (3) of the Rent Restriction Ordinance clearly incorporates within it the rule that the Appellate Authority will not dispose of the appeal without first sending for the record of the case from the Controller and hearing the parties and further if necessary, making such further enquiry as it deems fit. The duty to call for the record in the first instance is imperative. It is difficult, therefore, to agree that under this section the Appellate Authority could dismiss an appeal in limine. Since the provisions of the Code of Civil Procedure have not been made applicable to an appeal under subsection (3) as has been done in case of an appeal to the High Court under subsection (4), there appears to be substance in the contention advanced on behalf of the appellants that subsection (3) of section 15 is a complete Code of Procedure in itself for the purposes of an appeal under that subsection. We cannot, therefore, approve of what the learned District Judge has done in the present case."
' The cited passage unfortunately leaves no room for holding that in cases where the Appellate Authority considers, in view of the points urged before it, that calling for the record of the case from the Controller can be dispensed with, it may dispose of the appeal without doing so. Learned counsel for the respondent has referred to the concluding portion of the cited judgment where their Lordships had referred to certain questions of law and fact which had remained undecided by the Appellate Authority. However, the mere mention of this aspect of the case in no way, whittles down the absolute rule laid down by their Lordships as to the mandatory nature of the provisions relating to calling for the record of the case by the use of the word "imperative". I may here refer to Allandiya Saleem v. Abdul Qadeer (1) where the aforesaid judgment of the Supreme Court came in for interpretation. Even in this case Mushtaque Hussain, J. (as he then was) after referring to the passage reproduced above was of the opinion that the ratio of the rule laid down by their Lordships was that an appeal cannot be dismissed without first calling for the record.
6. For the foregoing reasons, it is clear to me that the order of the learned District Judge was obviously in violation of the mandatory provisions of section 15 (3) and, therefore, cannot be sustained. In consequence, this appeal is allowed and the case is remanded to the learned Additional District Judge to be disposed of according to law. It has been pointed out to me that this case has been pending adjudication on this short point for a great length of time. Therefore, it has become necessary to make a direction for early disposal of the case. The learned (1) PLD 1971 Lab.
31 Additional District Judge shall, therefore, dispose of the appeal within a period of three months from the date of receipt of the record and proceedings by him. There will, however, be no order as to costs.