ZAFFAR HUSSAIN MIRZA, J.--The petitioner who is an occupant of residential premises at Karachi, as a tenant was ordered to be evicted from the premises on 13-4-1981, by the Rent Controller. Being aggrieved by the aforesaid order of eviction, he filed an appeal in the High Court of Sind, Karachi, which was admitted to regular hearing. However, on 22-5-1984, when the appeal was called on for hearing, the petitioner and his counsel were absent, as a result of which, the appeal was dismissed for non-prosecution by the learned Single Judge of that Court. On 13-9-1984, the petitioner moved the High Court for re-admission of the appeal on a plea that his and his counsel's absence on the date of hearing was not intentional. However, by order, dated 18-11-1984, the learned Single Judge of the High Court, having found the explanation furnished by the petitioner unsatisfactory dismissed the application for re-admission of the appeal. The petitioner has brought this petition for leave to appeal from the said order of the High Court, dated 18-11-1984.
2. The first contention advanced in support of the petition is that the learned Judge in the (sigh Court was dismiss the appeal for non-prosecution of the case, in view of the clear provisions of 21 of the Sind Rented Premises Ordinance, 1970, which "The appellate authority shall, case and giving the parties an if necessary, after making such or by the Controller, make an I be final."
Argument of the learned counsel is that section 21 is a complete in itself regulating the procedure for the hearing and disposal of appeal under the said Ordinance and, therefore, the appellate authority was under an obligation of law to peruse the record of the case and go into the merits of the same before disposing of the appeal, even though the appellant and his counsel were not present to prosecute the same, We find no substance in the argument of the learned counsel. In the first place the argument cuts at the root of the petitioner's case before us in so far as the present petition is directed against the order, dated 28-11-1984, passed by the High Court on the application of the petitioner for re-admission of the appeal and not against the originals order dated 22-5-1984 by which the appeal was dismissed --- for non-prosecution. If the petitioner felt aggrieved by that order as are illegal order passed contrary to the mandatory requirements of section21(3) of the Ordinance, the petitioner, ought to have come up before this Court within the period of limitation. He cannot be allowed to urge this point specially when he did not do so in his application for re-admission of appeal before the High Court, for the first the in this petition which is clearly beyond the qua the original order, dated 22-5-1984.
3. Additionally to our mind 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 the subsection 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 the opportunity of being heard.
The Code of Civil Procedure authorise the Court under Order XLI, rule 17, to dismiss the appeal forthwith in case the appellant does not appear when the appeal is called, on for hearing. This is a salutary provision of law and obviates, unnecessary wastage of valuable the at the disposal of the Court to be expended on matters in which parties are genuinely interested it prosecuting their cases. Also this tends to avoid duplication of work, in that if a party who is prevented for a sufficient cause from appearing in the Court and his appeal is disposed of in his absence, he may subsequently appear and show sufficient case in order to get a proper hearing in support of his case If the Court is required, notwithstanding the absence of the parties, to dispose of the case on merits and subsequently re-admit the appeal apparently the Courts the would be unnecessarily wasted. That the procedure contained in the C.P.C. Governs the hearing of the appeal under the Sind Rented Premises Ordinance, 1979, is clear from the dictum laid down by this Court in Hussain Bakhsh v Settlement Commissioner PLD 1970 SC 1. In this case it was held that by virtue of section 117 of the 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. The other principle on which the ordinary procedure governing the hearing of the appeals in the High Court would be attracted in the case of statutory appeals under section 21 of the Sind Rented Premises Ordinance, is the principle postulated by the House of Lords in the case of National Telephone Company Limited v.
Postmaster-General, 1913 A C 546, in which the following dictum was laid down.
"When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right to appeal from its decisions likewise attaches."
There is nothing, in our opinion, in the language of section 21 to exclude the application of the ordinary procedure attaching to the High Court in hearing and disposal of civil appeals.
4. It may by mentioned here that subsection (3) of section 21 is in substance on par with rule 30 of Order XLI, C.P.C., and as already mentioned, if the argument of the learned counsel is taken to its logical conclusion, it would cut at the very root of his case. His submission comes to this, that the language of section 21(3) does not in terms authorise the Court to dismiss the appeal in default of appearance of the appellant, so as to be readmitted for- hearing but makes it obligatory upon it to dispose of the appeal on the merits. It can be said on go authority and on reasonable construction of the language of the provisions in a case where the appellant or his counsel refuses to advance any argument in support of the appeal, the Court can dismiss the appeal for non-prosecution. In such ,a case the decision is or merits under Order XLI, rule 30, C.P.C. 'ind not under Order XLI, rule 17, C.P.C. In which case the Court can dismiss the appeal fog non-appearance. Therefore, if the Court had no power to dismiss the appeal for non-appearance and due to the absence of the appellant, no argument was advanced in support of the appeal, the Court would have no option but to dismiss the appeal on the ground that no point was raised for consideration of the Court and consequently no reference to the proceedings of the Courts below would be required. See Thakur Sukpal Singh v. Thakur Kalyan Singh AIR 1963 SC 146. There is thus no substance in the first contention raised by the learned counsel.
5. It was next submitted by the learned counsel that the learned Judge in the High Court failed to appreciate that the appellant and his counsel were prevented from appearing on the date of hearing for sufficient cause. The application for re-admission of the appeal was supported in the High Court by an affidavit filed by Haji Abdul Sattar son of the petitioner. Two reasons were disclosed in the affidavit for non-appearance of the petitioner and his counsel. The first was that the petitioner was busy with the completion of the formalities of his journey to perform Haj and secondly that Mr. Aftab Ahmad Alvi, the Advocate for the petitioner "had virtually given up the legal practice". These to reasons were repelled by the High Court on cogent grounds and we are satisfied that no sufficient cause was shown for the absence of the petitioner and his counsel.
6. In the result this petition fails and is accordingly dismissed.