1. NASIM HASAN SHAH,. J: --The relevant facts are that respondent No.l filed an ejectment petition against respondent No.2 seeking his ejectment from Shop No.28, Sheikh Cloth Market, Rail Bazar, Faisalabad. The ejectment of the petitioner was sought on the ground that respondent No.2 had failed to pay rent from April, 1988 and that he had sublet the disputed shop to the petitioner. On the pleadings of the parties, the following issues were framed :- (1)Whether the respondents have become defaulters from April 1988? OPP (2)Whether the respondent No.l has sublet the property to respondent No.2? OPP (3)Whether the petitioner required the shop in question for personal use in good faith? OPP'
2. (4)What is the exact rate per month? OPP After parties had led evidence in support of their respective stands and the matter argued before him, the Rent Controller decided Issues Nos.l to 3 against the landlord; but as regards Issue No:4 the rent was fixed at Rs:100 per month. In view pf the findings on Issues Nos.l to 3 the petition was dismissed by the Rent Controller vide order dated 27- 2-1990. However, on the landlord's appeal, the learned appellate Court (Additional District Judge) reversed the finding on Issue No.l (default) and on Issue No.3 (personal need) though the finding with regard to Issue No.2 (re-subletting) was maintained. It was found that that Muhammad Rafiq (petitioner herein) was in occupation of the shop at the time of the ejectment petition and Muhammad Nawaz (Respondent No.2) in whose favour the premises were supposed to have been sublet) was out of possession and his application under section 9 of the Specific Relief Act for obtaining possession was dismissed by the learned Courts. Therefore, the learned Additional District Judge while allowing the appeal did not consider it necessary to pass any order of ejectment against Muhammad Nawaz (Respondent No.Z) as he was already out of possession.
3. In the result, Muhammad Rafiq (petitioner herein) was ordered to be ejected vide the appellate order passed on 31-7-1991.
4. Feeling aggrieved, Muhammad Rafiq filed a second appeal before the High Court. This, however, was dismissed by a learned Single Judge of the High Court on the ground that the right of second appeal was not available to him, on the view that the right of second appeal was not available in cases where the ejectment petition was instituted prior to the coming into force of the amending Ordinance XIII of 1990 (viz. 6-6-1990), by which the right of second appeal was conferred on tenants of non-residential buildings.
5. The present petition for leave to appeal has been heard by us along with Civil Petition No.1021-L of 1991 (Haji Muhammad Ibrahim etc. v. Mst.Surrayia-un-Nisa etc. PLD 1992 SC 637) wherein the same question was involved. By our order of even date we have held in the aforesaid case that the right of second appeal is available in cases pending before the promulgation of Ordinance XIII of 1990 i.e. Before 6-6-1990 and where the first appellate Court had not passed a final order (before the said date) and, if any sach order had, been passed 30 days had not elapsed since the passing of the said order and the coming into force of Ordinance XIII of 1990.
6. Accordingly, the view taken by the High Court that the second appeal was not maintainable in this case is not sustainable.
7. This petition is, accordingly, converted into an appeal and allowed. The order passed by the High Court dated 15-9-1991 is set aside and the case remanded to the High Court for disposal of the second appeal, on merits. No costs.