' This second rent appeal is directed against the order of 2nd Additional District Judge, Hyderabad, dated 29-9-1980 whereby the order of Rent Controller, granting ejectment of the respondent on grounds of default and personal requirement has been reversed. This appeal was originally heard and accepted by me on 5-4-1982 ex parte as the respondent and his counsel were absent.
Thereafter, C. M. A. No, 919 of 1982 was filed by the respondent praying for re-hearing of the appeal which was granted by consent on 25-4-1982 on terms stated in that order. I have heard Mr. Mahmudul Hasan and Mr. Amanullah, the learned counsel for appellant and respondent No,
1. The learned counsel for respondent No, 1 has taken a preliminary objection as to the maintainability of this appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is contended by the learned counsel that the Ordinance No, VI of 1959 was repealed by the Sind Rented Premises Ordinance, 1979, and on repeal thereof only appeals and those cases which were fixed before the Rent Controller for arguments and judgments were saved which implies that only pending appeals may be decided under the repealed Ordinance and no further right of second appeal is available to a litigant whose pending first appeal is decided after the enforcement of Sind Rented Premises Ordinance, 1979. It is also contended by the learned counsel for the respondent that in view of subsection (4) of section 27 which has been added subsequently to section 27 of the Ordinance the right of second appeal if any stands destroyed. The contention raised by the learned counsel for the respondent has no merit. The right of appeal is a substantive right which can be taken away only by express words or necessary intendment. There is nothing in the language of section 27 of the Ordinance XVII of 1979 which could support the contention of the learned counsel. On the contrary subsection (2) of section 27 of the Ordinance completely saved the pending appeals from the effect of appeal of Ordinance VI of 1959 which shows that the legislation did not intend to interfere with the right of appeal available to a litigant under the repealed Ordinance. The learned counsel for respondent No, 1 next contended that with regard to finding on the issue of subletting this question could not be agitated by the appellant in second appeal as he had failed to file an appeal against the order of Rent Controller who decided the issue of subletting against the appellant.' In the case Muhammad Tufail v. Barkat Ali, a similar contention was considered by a learned Single Judge of the erstwhile High Court of West Pakistan and it was held that respondent can support the order of Rent Controller in an appeal on a ground different from one which was taken before the Rent Controller without filing appeal against the order .Of Rent Controller. I am in respectful agreement with the view expressed in the above case. The contention of the learned counsel for respondent No, 1 is accordingly overruled.
The learned counsel for respondent supported the order of first appellate authority on the grounds of subletting, default in payment of rent and bona fide requirement on the reasoning given in the order of 1st Appellate Authority. Each one of the grounds urged by the learned counsel for respondent No, 1 at the re-hearing were considered by me in my order dated 5-4-1982 and I do not find any reason to differ from my earlier conclusion. I, therefore, for the reasons stated above and those stated in my order dated 5-4-1982, accept this appeal and grant ejectment of respondent as prayed in the ejectment application. The respondent is however granted four months' time to vacate the premises subject to the condition that he shall continue to deposit monthly rent in Court in accordance with the direction of the Rent Controller. There will be no order as to costs in the circumstances of the case. PLD 067 Kar. 151