1989 PLP 1033 (CLC)

By this order/judgment I propose to decide the above three First Rent Appeals, as identical legal point is involved in all the three Appeals. The present appeals are directed against the order dated 15th May, 1988, passed by the Vth Senior Civil Judge and Rent Controller Karachi, East, by which ejectment applications, filed by the respondent were allowed. The defence of the appellants was struck off and they were directed to hand over vacant possession to the respondent within one month, on the ground that the appellants had failed to comply with the tentative order, dated 26‑10‑1986, passed by the learned Rent Controller under section 16(2) of Sind Rented Premises Ordinance. 1979, inasmuch as they had failed to deposit future rent for the month of December, 1987, January and February, 1988. The present appeals were filed against the said order on 3‑8‑1988. On 31‑8‑1988, the above appeals came up for admission and pre‑admission notice was issued against the respondent. At the outset, Mr. Mumtaz Ahmad, learned counsel appearing for the respondent, in all the three cases, raised preliminary objection that the appeals were time‑barred and, therefore, the same were liable to be dismissed on this point alone. According to him, the learned Rent Controller had passed the impugned order on 15th May, 1988, while the application for copies was made on 10‑7‑1988, the cost was deposited on 19‑7‑1988 and copy was supplied to the appellants on 20‑7‑1988 but the appeals were filed on 3rd August, 1988. In support of his contentions the learned counsel has relied upon:‑ (1) P L D 1982 S C 88; (2) P L D 1983 Kar. 416; (3) 1984 C L C 2632; (4) 1984 C L C 2898; and (5) P L D 1981 Kar.

76. On the other hand Mr. Mansoor-ul-Arfin, learned counsel appearing for the appellants has contended that since the time for filing appeals expired during the vacation, the appeals could be filed on the first opening clay of the Court as envisaged by section 4 of the Limitation Act and, therefore, the appeals were not time‑barred. In support of his contentions he has relied upon:‑ (1) A I R 1935 PC 85. (2) 49 Indian Cases 664 I have considered the contentions of the learned counsel. It is a matter of record that the impugned orders were passed by the learned Rent Controller on 15th May, 1988. the application for copies was made on 10‑7‑1988, cost estimated on 11‑7‑1988, while the cost was paid on 19‑7‑1988, copy was supplied to the appellants on 20‑7‑1988 and the appeals were filed on 3‑8‑1988. This position has not been controverted even by Mr. Mansoorul Arfin, learned counsel appearing for the appellants. In order to appreciate the respective contentions of the learned counsel, it will be appropriate to refer to section 29 and section 4 of the Limitation Act.29. (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed for any suit, appeal or application by any special or local law‑‑ (a) the provisions contained in section 4, section 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law, and (b) the remaining provisions of this Act shall not apply. (3) Nothing in this Act shall apply to suits under the Divorce Act (IV of 1869). (4) Sections 26 and 27 and the definition of easement in section 2 shall not apply to cases arising in territories to which the Easements Act (V of 1882) , may for the time being extend." Section‑4‑ "Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made‑on the day the Court re‑opens." Section 21 of Sind Rented Premises Ordinance provides direct appeal to the High Court from the order of the Controller and the same is to be filed within a period of thirty days, although under Article 156 of the Ist Schedule to the Limitation Act, period of limitation for filing of appeal in the High Court is ninety days. It appears that legislature under the Ordinance curtailed the right of appeals from two to one Court to provide expeditious remedy in relation to the rent case. The bare reading of section 4 of Limitation Act indicates that it has nothing to do with computing the prescribed period, what section provides is that where the period prescribed expired on a day when the Court is closed notwithstanding that fact, the application may be made on the day when the Court re‑opens, so that there is nothing in section, which alters the length of the prescribed period which becomes all the more clear when in sections 12, 14 and other sections of similar nature in the Act, the direction begins with the words:‑ . In computing the period of limitation prescribed for an application certain period shall be excluded." As far as section 29(2) of the Limitation Act was concerned, it lays down that where special or local law provides for a period different from the period prescribed by Ist Schedule provisions of Limitation Act will only apply to the extent expressly specified in this section. Undoubtedly in such cases section 5 of Limitation Act would not apply, and only sections 4,9 to 18 and section 22 will apply In the present case, the orders were passed by the learned Rent Controller on 15th May, 1988, and the time for filing appeal would expire on 14th of June, 1988. But the applications for copies were made on 10‑7‑1988. Civil Courts/Court of Rent Controller were closed from Ist June, to 30th June, while this Court was closed from Ist June to 2nd August. By virtue of section 4 of the Limitation Act the appellants were entitled to present their appeals on the day when this Court re‑opened i.e. on 3rd August, 1988. But the period of Limitation did not stand extended up to the 3rd August, 1988. The time spent in obtaining copies of orders. impugned before this Court could only be excluded under section 12 of the Limitation Act if the application for the copy had been made before the expiry of the period of limitation and not after such expiry as was done in the present case. In the case of Abdul Bari and another v. Muhammad Saeed 1982 C L C 2264, while considering the effect of section 4 of the Limitation Act it was observed by this Court that:‑ "Thus the learned counsel for the appellant is correct when he states that in case period of limitation prescribed expires on a day when the Court is closed the suit, appeal or application may be instituted on the day that the Court reopens, in view of the provision of section 4 of Limitation Act but it does not in any manner alter. the length of the prescribed time for preferring the appeal. In the present case, the impugned order was passed on 31st May, 1978 but the application for the copy of the said order was made on 3rd July 1978. The appellant thus allowed to expire the whole of the period , prescribed for preferring the appeal under section 15(4) of the Ordinance of 1953 before the application for copy was made. lie, therefore, cannot take advantage of the holidays which happen to occur towards the end of that period." It was further observed that:‑ "The application was filed for copy on 3rd July 1978 during the period High Court was closed on account of summer vacation, but after the expiry of the period of the limitation prescribed for filing an appeal under section 15(4) of the Ordinance 1959, would thus not operate so as to extend the period of limitation for preferring the appeal up to the date of re‑opening of the High Court. The appeal filed in this Court against the order dated 31st May, 1978, under the circumstances on 5th August, 1978 was, therefore, held to be barred by the time." In the case of Rauf Hussain Qureshi v. Muhammad Taqi Jumlana 1986 C L C 1367, the order of Rent Controller was passed on 30‑5‑1985, while the application for grant of certified copy of the order was filed on 15‑7‑1985 which was granted on the same date and the appeal was presented in the Court on 20‑7‑1986, a preliminary objection was raised before the Court which was accepted and it has held that:‑ "The appeal was time‑barred as application for certified copy of judgment was moved after the period of limitation. In the case of Mst. Rukhsana Ahmad v. Tariq Ataullah P L D 1977 Kar. 564 it was observed by this Court that:‑ "It is now well‑settled that the time 'requisite for obtaining copy which can be excluded under section 12 of the Limitation Act is the time which is taken between the date of application and the date when the copy is ready." In the above case the Rent Controller had passed the order on 31‑5‑1976, the appellant applied for certified copy on 30‑6‑1976 i.e. on the last date of period of Limitation provided under Urban Rent Restriction Ordinance. The copy was made ready on 2‑2‑1976 and was delivered on 7‑7‑1976. The appellant filed the first appeal on 9‑7‑1976 i.e. 39 days after the day of passing of the order. It was argued by the learned counsel appearing for the appellant that since the Court was closed from 1‑6‑1976 to 30‑6‑1976 for summer vacation and since the copy was applied on 30‑6‑1976 and was delivered on 7‑7‑1976, the entire period of vacation as well as the period from 30‑6‑1976 to the date of delivery of the copy has to be excluded under subsection (2) of section 12 of the Limitation Act, after the time requisite for obtaining copy of the order. It was observed by the Court that:‑ "In the present case 29 days out of 30 days which is the period of Limitation for filing had already expired when the appellant applied for certified copy of the order on 30‑6‑1976. Therefore, only one day was available for filing the appeal after obtaining the copy of order on 7‑7‑1976. But the appeal was filed on 9‑7‑1976, therefore, the same was clearly barred by time." The petition for leave to .Appeal against the judgment in the case of Rukhsana Ahmad was dismissed by the Supreme Court and the decision is reported ;n 1980 S C 11 R

36. In the case of Ziaul Haq v. Dr. A. Brabund P L D 1962 (W.P.) Pesh. 21, while considering the effect of section 4 of Limitation Act, it was observed by Mr. Anwarul Haque, J.‑ (as he then was) that:‑ "In the present case, the period of limitation expired on 19th .August, 1961, but as on that day and following days of the month of August Civil Courts were closed and by virtue of section 4 of Limitation Act. the respondents were entitled to present their appeal on the day the Courts reopened namely 1st of September, 1961 but the period of limitation did not stand extended up to the 1st of September, 1961. The time spent in obtaining the copy of the order appealed against could only be excluded under section 12 of the Limitation Act, if the application for copy had been made before the expiry of the period of limitation and not after such expiry as was done in the present case." As far as the decisions reported in:‑ (1) P L D 1983 Kar. 417; (2) P L D 1981 Kar. 76; (3) 1984 C L C 2632; (4) P L D 1982 SC 1288; (5) 1984 C L C 2898; and (6) 1985 C L C 2622; relied upon by the learned counsel for the respondent were concerned, the point involved in the above decisions was whether section 5 of the Limitation Act was applicable to the appeal filed under Rentare, Laws, and it was held that in view of the provisions of section 29 of the Limitation Act, section 5 of the Limitation Act was not applicable and, therefore, with utmost respect the above decisions are not applicable to the facts of the present case. As far as the decisions relied upon by Mr. llansoorul Arfin, learned counsel appearing for the appellants were concerned, in the case of Haji Imaman v . Shamsagar Rai 49 Indian cases 664 judgment was delivered on 21st September, but the decree was signed on 25th September, the Court was closed for long vacation on 26th September and re‑opened on 30th October, defendant applied for copies on 31st September which were made ready for delivery on 13th November and the appeal was filed on 22nd November. It was held that:‑ "The time which elapsed between delivery of judgment and signing of the decree should be excluded in computing the period of limitation for the appeal. That the period during which the Court was closed for the long vacation was time requisite for obtaining copies within the meaning of section 12 of the Limitation Act and the appeal was, therefore, within time. " The above decision is distinguishable and is not applicable to the facts of the present case, inasmuch as in the present case even the application for copies was made after the time for filing appeal had expired which was not the case in the case relied upon by the learned counsel. The second case, Maqbool Ahmad and others v.‑ Onkar Narain Singh and others Partab A I R 1935 Privy Council 85 relied upon by the learned counsel appearing for the appellant, it was observed by their Lordships while considering the effect of section 4 of Limitation Act that:‑ "What it provides is that, where the period of limitation prescribed expires on a day when the Court is closed, the application may be made on the day when the Court re‑opened." It was further observed:‑ "It is to be noted that there is a marked distinction in form between section 4 and section

14. The language implied in section 4 indicates that it has nothing to do with computing the prescribed period, what the section provides is that, where the period prescribed expires on a day when the Court is closed notwithstanding that fact, the application may be made on the day when the Court re‑opened, so that there is nothing in the section which alters the length of the prescribed period; whereas in section 14 and other sections of similar nature in the Act, the direction begins with the words; In computing the period of limitation prescribed for any application, certain period shall be excluded." There is no cavil with the proposition laid down by their Lordship of the Privy Council but the facts of the present case are distinguishable. The applications for copies were made by the appellants after the limitation period for filing appeals had expired and, therefore, the above decision is not applicable to the facts of the present case. In view of the above factual as well as legal position I am of the considered view that the appeals filed by the appellants were clearly time‑barred, and, therefore, the same are hereby dismissed. However, I allow four months time to the appellants to hand over vacant possession to the respondent subject to the condition that they shall continue to deposit future monthly rent regularly. A.A./Z‑75/K Appeals dismissed.