2005 SCMR 882 SUPREME-COURT

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Messrs SUHAIL PRINTING PRESS VS Syed ALEY EBA ZAIDI Civil Procedure Code --Order XLI of C.P.C. Appeals from Original Decrees--17 , Civil Procedure Code --Order XLI of C.P.C. Appeals from Original Decrees--19 , Sindh Rented Premises Ordinance 1979--21 , ----S. 21---Civil Procedure Code (V of 1908), O.XLI, Rr.17 & 19---Appeal---Absence of tenant---Dismissal on merits---Rent Controller passed eviction order and tenant preferred appeal before High Court against the order---On the day when the appeal was fixed for hearing, tenant was absent and High Court dismissed the appeal on merits---Plea raised by the tenant was that in terms of O.XLI, R.17 C.P.C., in the event of absence of appellant, only option open to High Court was either to dismiss the same for non-prosecution or to adjourn the hearing to some other date---Validity---There could be no cavil to the proposition that best option available to High Court was to dismiss the appeal for non-prosecution or to adjourn the hearing to some other date---It would be illegal and contrary to mandate of law to decide the appeal on merits without taking into consideration the view point of the tenant---Supreme Court refused to accept the contrary position as the same would unsettle the decided position of law which was not permissible---Judgment passed by High Court was set aside and appeal was remanded for decision afresh---Appeal allowed.