' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment, dated 1-7- 1992 passed by a learned Single Judge of the High Court of Sindh in F.RA. No,43 of 1990 filed by the respondent against the ejectment order, dated 18-12-1989 of the learned IVth Senior Civil Judge and Rent Controller, Karachi (East), in Rent Case No,822 of 1988 on the ground of personal requirement, allowing the same and remanding the case to the learned Rent Controller with a direction to decide, whether after the receipt of the possession of shop No,5 by the appellants, they still needed the disputed shop for appellant No,1. Leave to appeal was granted to consider, whether the requirement of appellant No,1 for shop No,4 was distinct and independent of the bona fide requirement of appellants Nos. 4 and 5.
2. The brief facts are that the predecessor-in-interest of the appellants, namely, Syed Haji Din Muhammad, purchased building bearing No, 929-930-G situated at Tariq Road, Block II, P.E.C.H.S. Karachi, inter alia having five shops on the ground floor. He died on 11-5-1988 leaving behind the appellants as his legal representatives. It appears that shop No,1 was in occupation of the deceased's brother Riaz Ahmad, as the tenant, whereas shops Nos. 2 and 3 were in possession of appellants Nos. 1, 4 and 5. The appellants filed Rent Case No, 822 of 1988 against the respondent seeking ejectment on the grounds of personal requirement and default of appellant No,1, whereas Rent Case No,824 of 1988 was filed against one Mst. Amat-ul-Qayyum, widow of late Abdul Qadeer, in respect of shop No,5 on the ground of personal requirement of appellants Nos. 4 and 5. The above cases were contested by the tenants. They proceeded separately. It appears that after the arguments were concluded in Rent Case No, 822 of 1988, the appellants and Mst. Amat-ul-Qayyum, the tenant of shop No,5, entered into a compromise on 11-12-1989, whereby the possession of the shop was given by her to the appellants. Before the respondent could bring the above fact to the notice of the learned Rent Controller, order in the rent case was announced on 18-12-1989 granting ejectment on the ground of personal requirement alone and rejecting the other ground. After that, the respondent filed above F.RA., which was allowed by the learned Judge in chambers through the impugned judgment. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above question.
3. In support of the above appeal, Mr. Khalilur Rehman, learned A.O.R. Appearing for the appellants, has advanced two-fold arguments, namely:
(i) that as the personal requirement of appellant No,1 for shop No,4 was distinct from the personal requirement of appellants Nos. 4 and 5 in respect of shop No,5, the learned Judge in chambers was not justified in setting aside the order of the learned Rent Controller and remanding the case. ' that, in any case, under section 21 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, the High Court could not have remanded the case for decision on the above point to the learned Rent Controller, but either it should have recorded further evidence itself or it should have remitted the case to the learned Rent Controller for recording evidence and thereafter resubmitting the same to the High Court for decision.
' Mr. Khalid M. Ishaque, learned Senior Advocate Supreme Court appearing for the respondent, has urged that there was no reliable material on record on the basis of which it could be concluded that the requirement of appellant No,1 on the one hand and appellants Nos. 4 and 5 on the other hand in respect of shops Nos. 4 and 5, respectively, were distinct and that the learned Judge in chambers was competent in law to remand the case to the learned Rent Controller for decision on the point noticed hereinabove.
4. In support of his above first submission, Mr. Khalilur Rehman has invited our attention to the ejectment applications in respect of above two rent cases. There is no doubt that in Rent Case No,822 of 1988, personal requirement of appellant No,1 was pleaded; whereas in Rent Case No, 824 of 1988, personal requirement of appellants Nos. 4 and 5 was agitated.. However, appellant No,1, in his cross-examination, has admitted the following facts:--- "Shops Nos. 2 and 3 were in possession of our late father and now these are in our possession. It is incorrect to suggest that we are not making ice. It is a fact that we are selling the Ice retailer. We are running ice business in the name of Hollywood Ice Depot. We used to purchase ice from different Ice Factories. We are using shop No,2 as a godown, so also shop No,3. In shop No,1 our uncle is running general store and he is our tenant. His name is Haji Riaz Ahmad. We have no business in Quetta. We are using shop Nos.2 and 3 for selling the ice and storing the bottles."
5. According to the above statement, shops Nos. 2 and 3 were in joint possession of the appellants, which they were using as a godown and for selling the ice and storing the bottles. Besides the above admission, it may be pointed out that Rent Case No, 824 of 1988 was compromised between the appellants and Mst. Amat-ul-Qayyum the tenant of shop No,5, and because of the above compromise, the possession was handed over by the above tenant to the appellants jointly who were applicants in the above rent case. No finding was recorded by the Court to the effect that factually Shop No,5 was required by appellants Nos. 4 and 5. In the above factual background, it has become very pertinent to ascertain the effect of receiving the possession of Shop No,5 by the appellants on the question of personal requirement of the appellant No,1 in respect of Shop No,4.
6. Then it was urged by Mr. Khalilur Rehman that in fact the learned Judge in chambers has concurred with the learned Rent Controller on the question of personal requirement by holding that the respondent had proved his bona fide requirement in respect of the disputed shop and that in spite of recording above finding, it was not proper to have set aside the above Rent Controller's order and to have remanded the case. In our view, the above observations are to be read with the other observations preceding and subsequent to the same. If the appellants would not have acquired the possession of Shop No,5, the learned Judge in chambers might have concurred with the above finding of the learned Rent Controller. However, he was of the view that the effect of obtaining the possession of above Shop No,5 by the appellants was required to be examined with reference to the personal requirement of appellant No,1 in respect of Shop No,4.
7. This leads us to the above second submission of Mr. Khalilur Rehman. In order to appreciate the above contention, it may be pertinent to reproduce section 21 of the Ordinance, which reads as follows:--- "21.--(1) Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court.
(2) The appellate Authority may pending the final disposal of the appeal, grant injunction staying further proceedings or action on the order of the Controller: ' Provided that no injunction shall be granted if the appeal has been preferred from the order under section 14.
(3) The appellate Authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further inquiry either by himself or by the Controller, make an appropriate order, which shall be final."
8. A perusal of the above-quoted section indicates that subsection (1) thereof confers the right of an appeal to any party aggrieved by an order, to be filed within thirty days before the High Court.
Whereas, subsection (2) empowers the appellate. Authority to grant injunction for staying further proceedings or action on the order of the Controller except in respect of order passed under section 14 of the Ordinance. It may further be noticed that subsection (3) thereof deals with the disposal of an appeal by the appellate Authority. It empowers the appellate authority to make an appropriate order after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, as it may think proper.
9. According to Mr. Khalilur Rehman, the above subsection (3) of section 21 of the Ordinance can be equated with Order 41, Rules 25 and 26, C.P.C. It may be observed that rule 25 of Order 41 empowers an appellate Court to refer a case for trial to the Court from whose decree the appeal is preferred in case the latter had omitted to frame or to try any issue or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits and to direct the said Court to take additional evidence. It further provides that upon the receipt of the case, the Court shall proceed to try such issues and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor. Whereas Rule 26 provides that such evidence and findings shall form part of the record in the suit and that either party within a time to be fixed by the appellate Court may present the memorandum of objections to any findings.
10. We are inclined to hold that section 21 of the Ordinance cannot be equated with Rules 25 and 26 of Order 41, C.P.C. Inasmuch as under the former provision, if the appellate Authority remits the case to the Controller for further enquiry, the latter is not required to record any finding on the disputed question of fact but to remit the case to the appellate Authority with the proceeding of further enquiry held by him. Whereas under the above latter provision, the trial Court is required to record evidence and its finding on the issues referred to it, which evidence and findings become part of the original proceedings/judgment under appeal upon receipt of the same by the appellate Court.
The second distinction seems to be that under the above former provision, namely, under section 21 of the Ordinance as the learned Rent Controller is not required to record any finding, no right has been conferred on the parties to file any objection to the further inquiry held by the Controller, whereas under the latter provision, namely, Rule 26 of Order 41 of C.P.C. The appellate Court fixes time for filing of memorandum of objections to any of the findings recorded by the trial Court after the remand.
11. Mr. Khafilur Rehman, in support of his above submission, has referred to the case of Khawaja Gulzar Ahmad v. Mst. Latifan 1985 CLC 1044, in which a learned Single Judge of the Sindh High Court, while construing section 21 of the Ordinance, has held as follows:--- "Moreover, according to my reading of the section, the appellate Court cannot remand the case for fresh decision to the Rent Controller. Even if fresh evidence is desired, it should either be recorded by the appellate Court itself or by the Rent Controller on remand. But in the latter case the decision will have to be rendered by the appellate Court itself on the basis of the evidence recorded by the Rent Controller."
12. To reinforce the above arguments, he also referred to the case of Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCM R 216 and the case of Messrs Fahim & Company and another v.
National Bank of Pakistan and 5 others 1976 SCM R 100. In the first case, while allowing the appeal against the judgment of the High Court, it has been held by this Court that where the entire evidence on record was available which was sufficient for appellate Court to pronounce judgment and decide the issue, remand of the case for fresh decision to the lower Court was not necessary particularly when no evidence was to be recorded. Whereas, in the above second case, this Court, while declining a petition for leave to appeal against the judgment of the erstwhile High Court of Sindh and Balochistan, has observed that the appellate Court after framing additional issues was not bound to remand the case to the trial Court, but it was empowered to record evidence itself. It has been further observed that weighty reasons existed for recording evidence for the appellate Court itse1f and, therefore, failure to remit the case to the trial Court was not questionable.
13. On the other hand, Mr. Khalid M. Ishaque, learned Senior Advocate Surpreme Court for the respondent, has referred to the case of Mrs. Jana Bai v. Mst. Gulshan and another 1990 SCM R 1137, the case of Begum Murtaza Riaz v. Masood Siddiqui and another 1988 CLC 311, the case of Begum Mumtaz Riaz v. Pakistan through Secretary of Defence, Islamabad and 2 others 1989 CLC 291 and the case of Haji Fazal Karim v. Amanullah Khan and others 1991 M LD 1887, to point out that the appellate Courts have been remanding the cases to the Rent Controllers. He has also referred to para. 959 from 5 American Jurisprudence 2d dealing with the modern practice as to the power of the appellate Court, which reads as follows:--- "In most jurisdictions under the modern practice reviewing Courts by statute have power, on theok determination of an appeal, when there is no reason for remanding the case for new trial or for any further proceedings, to render or enter final judgment, or the judgment or decree that the trial Court should have entered, without remanding the case to that Court, or to reverse and remand with directions to the lower Court to enter a proper judgment."
14. No doubt the case of Khawajatzar Ahmad v. Mst. Latifan (supra) supports the contention of Mr. Khalilur Rehman which is evident from the above-quoted extract from the judgment of the learned Single Judge, whereas the other two judgments referred to by Mr. Khalilur Rehman have no direct bearing on the controversy in issue, so also the judgments relied upon by Mr. Khalid M. Ishaq.
However, the above para. 959 from 5 American Jurisprudence 2d has some relevance to the controvesry in issue, as it indicates that an appellate Court possesses inter alia the power to remand the case.
15. It was also urged by Mr. Khalid M. Ishaq that the expression "make an appropriate order" employed in subsection (3) of section 21 of the Ordinance is wide enough to empower the appellate Authority to remand the case. The word "appropriate" has been defined in the following Dictionaries as follows:--- ' Concise Oxford Dictionary, Seventh Edition, page 42: "belonging or peculiar; suitable or proper"
' Chamber's Twentieth Century Dictionary, page 61: "to make to be the private property of any one: to take to oneself as one's own: to filch: to set apart for a purpose, assign: to suit (with to ),---adj.
Set apart for a purpose."
' Black's Law Dictionary, page 93: "to make a thing one's own; to make a thing the subject of property; to exercise domination over an object to the extent, and for the purpose, of making it subserve one's own proper use or pleasure. To prescribe a particular use for particular moneys, to designate or destine a fund or property for distinct use, or for the payment of a particular demand.
Also used in the sense of distribute. In this sense it may denote the act of an executor or administrator who distributes the estate of his decent among the legatees, heirs, or others entitled, in pursuance of his duties and according to their respective rights."
16. From the above-quoted definitions of the word "appropriate" it is evident that the above word is susceptible to a wide connotation and includes suitable or proper. We are inclined to agree with Mr. Khalid M. Ishauqe that the above words, namely, "make an appropriate order" employed in subsection (3) of section 21 of the Ordinance are of significane, they empower the appellate Court to pass a remand order. However, we may also observe that the appellate Authority under section 21 of the Ordinance should not remand the case as a matter of course but should address itself to the question, whether the remand of the case in a particular case is warranted by the facts thereof.
17. We may also point out that since under section 21 of the Ordinance the High Court has been named as the appellate Authority which is an established Court, the well-established principle that when an established Court without more is provided as a forum for a particular redress, it will be implied that the ordinary incidences of the procedure of that Court are to attach is attracted to which in the present case includes the power of the High Court to remand. If any authority is needed, reference may be made to the following cases:-
(i) National Telephone Company Limited (In Liquidation) and another v. His Majesty's Postmaster General 1913 AC 546;
(ii) Secretary of State for India v. Chellikania Rama Rao and others AIR 1916 PC 21;
(iii) Maung Ba Thaw v. Ma Pin 1961 IA 158;
(iv) Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1;
(v) In re: Suo Motu Shariat Review Petition No,1-R of 1989 PLD 1990 SC 865.
18. The upshot of the above discussion is that the judgment under appeal is unexceptionable and, therefore, the above appeal is dismissed, but there will be no order as to costs.