' The facts giving rise to this second appeal are that the respondents, Mst. Musarrat Begum and another, filed an application for ejectment of the appellant, Sh. Abdul Rehman, from a house. The only ground pressed by the respondents for the eviction of the appellant was that he had committed default in the payment of rent. The appellant resisted the application inter alia on the ground that the relationship of landladies and tenant did not exist between the parties. This plea, however, did not find favour with the learned Rent Controller and since the appellant had not alleged the payment of any rent he ordered the appellant to vacate the house in dispute. On this, the appellant filed an appeal before the District Judge. On 4th June, 1978, the learned District Judge directed him to deposit Rs, 4,300, as arrears of rent for the period from 1st December, 1974 to 30th June, 1978, on or before the 15th of June, 1978. The appellant, however, did not comply with the order of the learned appellate authority relating to the deposit of rent. The appeal came up before the learned District Judge on 16th July, 1978, when nobody was present to prosecute it. The learned District Judge, therefore, dismissed the appeal in default and for non-deposit of rent in pursuance of his direction. Feeling aggrieved by the order of the learned District Judge the appellant has come up in second appeal to this Court.
2. The order of the learned District Judge is in Urdu and reads thus: {{URDU TEXT}}
3. Learned counsel for the appellant contended that as the appellant or his counsel was not present on 16th July, 1978, before the learned District Judge when the impugned order was passed he should have simply dismissed the appeal for non-prosecution without reference to the merits of the case but since he had dismissed the appeal on the ground of non-deposit of rent also he had decided the appeal on merits for which there was no warrant in law. He cited Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd., Karachi and another (1), to support his contention.
4. It was also urged by the learned counsel for the appellant that since there was dispute regarding the existence of relationship of landladies and tenant between the parties the learned District Judge could not make an order regarding the deposit of rent under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, especially when the Rent Controller had not made such an order.
5. In reply, learned counsel for the respondents submitted that the learned District Judge had, in fact, dismissed the appeal in default and had made reference to the non-deposit of rent by the appellant with a view to high-lighting his indifference towards the appeal filed by him and, therefore, no valid exception could be taken to his order on the ground that he had touched upon the merits of the case as well. He cited Kawleshwar Singh and another v. Raghubir Singh and others (2), to submit that notwithstanding the aforesaid reference to the non-deposit of rent the order of the learned District Judge would be deemed to be an order dismissing the appeal for want of prosecution.
' In the case of Messrs S. M. Abdullah & Sons cited by the learned counsel for the appellant, an Additional District Judge had dismissed an appeal on merits in the absence of the appellant.
Thereafter the appellant made an application for re-admission of the appeal but the application was dismissed by the learned Additional District Judge on the ground that the same was not competent, as the appeal had been dismissed on merits and not in default. This order of the learned Additional District Judge was challenged by the appellant before the High Court of Sind, by means of an appeal, and it was ruled by that High Court that the absence of the appellant at the time of hearing of the appeal did not empower the Appellate Court to dismiss 'the appeal on merits. In the case of Kawleshwar Singh and another, relied upon by the learned counsel for the respondents, also it was held that where an appeal is disposed of on merits in the absence of the appellant, the order of the Appellate Court would be deemed to be an order of dismissal of appeal in default. Thus, the authorities cited on both sides support the proposition that the order passed by the learned District Judge, was, in fact, an order dismissing the appeal in default. In this view of the matter, his reference to the non-deposit of rent by the appellant would be deemed to be redundant. I, therefore, need not examine the contention of the learned counsel for the appellant relating to the illegality of the order for the deposit of rent.
7. In result, I modify the impugned order of the learned District Judge by omitting the following words there from: "4-6-78 ' The appeal is disposed of accordingly, with no order as to costs.