' AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 6-5-1993 passed by a learned Single Judge of the High Court of Sindh in F.R.A. No,1012 of 1987, filed by the respondents against the order of the learned IIIrd Senior Civil Judge/Rent Controller, Karachi (South), in Rent Case No,220 of 1986, for ejectment on the ground of default, allowing the same by setting aside the above ejectment order and remanding the case to the learned Rent Controller for the following reasons:-- "That the opponents are tenants in respect of premises G-17 (Peshawari Hotel) at a monthly rent of Rs,436". Although no specific plea with regard to the rented premises was taken by the respondents but through their evidence particularly affidavit of Muhammad Anwar, whose father happened to be one of the partners of Peshawari Hotel, had stated that the rented premises was a hotel even before ever since Hindus were its owners. He had produced an old advertisement which clearly shows that the premises was being used as a hotel and restaurant. His evidence has gone unchallenged by the respondents. ,Under these circumstances it was necessary for the Rent Controller to have first decided if the premises was a hotel and if it was so, the application ought to have been rejected as being beyond his jurisdiction. Since he has not adverted to such important aspect of the case I set aside the judgment passed in this case and remit it to the Rent Controller to first decide if the premises is a hotel. If it is so the application for ejectment can only be rejected.
The Rent Controller shall decide this case within three months of the receipt of the file."
2. The brief facts are that the petitioners filed the above rent case on the ground of default for the period from August, 1984 to 31-1-1986 at the rate of Rs,436 per month. Para. 1 of the rent case described the premises as under:-- "(1) That the applicants are owners/landlords of premises No,G-17, situated in Zamir Estates on Plot No, MR/2/31-31A, MA. Jinnah Road, Karachi, and the Opponents are tenants in respect of premises No,G-17 (Peshawari Hotel) at a monthly rent of Rs,436."
' The above rent case was resisted inasmuch as a written statement was filed. In para. 1 of the written statement, the following reply was given to above para. 1 of the rent case:-- "(1) That, the contents of application para. No,1 are admitted to some extent the opponents are not statutory tenants of applicants because the applicants had not served legal mandatory notice of transfer upon the opponents."
3. The learned Rent Controller, after framing issues, recording evidence and hearing the parties, by the above order granted ejectment on the ground of default. Against the above order, the respondents filed above F.R.A. In the memo. Of appeal, first time it was contended that the Rent Controller should have decided the question of jurisdiction, as the premises was a hotel and, therefore, was not covered by the provision of Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance. It appears that when the case came up for hearing before the learned Judge in Chambers, by an order dated 25-11-1991, he allowed Civil Miscellaneous Application No,364 of 1991 and directed the learned Rent Controller to record evidence on the point, whether the rented premises was a hotel within the definition of section 2(h) of the Ordinance. It was further ordered that the Rent Controller shall also allow the parties to lead additional evidence if otherwise permitted by law and to make such report to the High Court within a period of three months from the date of order. It was also ordered that the appeal would be fixed upon the receipt of the report from the learned Rent Controller for the compliance of the above order.
4. It seems that pursuant to the above order of the learned Judge in Chambers, the parties appeared before the learned Rent Controller on 7-12-1991, being the date specified by the High Court in the above order, and filed affidavit-in-evidence. The learned counsel for the parties cross- examined the deponents of the other party. It further seems that upon the receipt of the above report, the case was again heard on 17-12-1992 but the judgment was announced on 6-5-1993. The above additional evidence received by the High Court which comprised about five witnesses was not referred to by the learned Judge in Chambers while disposing of the above appeal. Apparently the same escaped from his notice and the case was remanded to the learned Rent Controller for the purpose of recording evidence on the above question.
5. In our view, this could not have been done as under subsection (3) of section 21 of the Ordinance, the learned Judge in Chambers had the option either to hold further enquiry himself in the appeal or to remit the case to the learned Rent Controller for making further enquiry. He opted for the latter course by his above order dated 25-11-1991. After having done so, he could not have remanded the case to the learned Rent Controller for the same purpose though the evidence on the point in issue was already remitted by the Rent Controller to the High Court.
6. We would, therefore, convert the above petition into an appeal and would allow the same with no order as to costs. The case is remanded to the High Court for disposal of the appeal afresh after taking into consideration the above additional evidence forwarded by the Rent Controller in compliance of the High Court's order dated 25-11-1991.
7. We may observe that Mr. Zafar Hadi Shah, learned ASC appearing for the respondents/caveators, wanted to urge as to the effect of partition suit and non-joinder of some of the landlords. Since we are remanding the case to the High Court, we have not touched upon the same. It will be open to him and to the opposite-party to raise whatever legal pleas are legally admissible to them.