1980 PLP 425 (CLC)

Javed 1qbal Chaudhry for Respondent, Date of hearing : 30th .tune, 1979. This second appeal is directed against the order dated 22nd March, 1977, whereby the learned Additional District Judge, Rawalpindi set aside in appeal the order of the Rent Controller dated 10th June, 1976 and passed an order directing the tenant to vacate the premises.

2. It was inter alia on the ground of default that the respondent landlord filed an application for ejectment of the appellant. The appellant denied that he was a tenant under the respondent and that any notice under section 30 of the Displaced Persons (Compensation and Rehabili tation) Act,.1958 was served on him.

3. The Rent Controller found that -relationship of landlord and tenant did not exist between the parties and that in the circumstances of the case no notice was necessary. The respondent filed an appeal and the learned Additional District Judge, having appraised the evidence of the parties, formed the view that the appellant 'teas a tenant under the respondent and that he had taken a portion of the house in dispute on monthly rent of Rs. 25 from the landlord. He, therefore accepted the appeal, set aside the order of the Controller and directed the appellant to vacate the premises within one month. Hence this appeal. 4. ft needs be mentioned here that the appeal was filed on 28th June,- 1977 without filing the certified copy of the order of the Rent Controller. By a separate application (C. M. No. 2659-C/1977) it was prayed that certified copy be dispensed with, for, the same was not available then. It was, however. assured by the petitioner that he would file the certified copy as and when it was secured from the Copying Agency. This Court pointed out on 23rd January, 1978 that the requisite copy was not submitted, and on 5th February, 1978 he was given 20 days to procure the certified copy, but it; is most disappointing that he has uptil now failed to get the copy and place it on record. Instead of that he has on 30th June, 1979 Med his affidavit deposing that he bad applied for the copy but the same was not supplied to him. The affidavit is highly vague and cannot be given any weight, but some clue is however available from the attached photo copy of the application which the appellant is said to have filed for purposes of getting a certified copy. It is contended on behalf of the appellant that, for obtaining the certified copy he had made the application on 31st January, 1978, but that does not appear to be true. The noting made at the back of the application shows that the application was made on 9th February, 1978 but one of the stamps affixed on the application appears to have been purchased on 15th February, 1978 which indicates that the application, although filed on 9th February, 1978, remained at the disposal of the appellant till 15th February, 1978. However, it has not been made out that the application was still pending with the Agency.

5. It is an admitted position that the certified copy of the order of the Rent Controller has not been placed on record and no explanation is given why it has not been obtained so far. In spite of the fact that limitation for filing the appeal expired on 3rd July, 1977, even then there is no application on the file asking for extension of time for filing the copy late. The provisions of Order XL11, rule 2, C. P. C. are undoubtedly applicable to a second appeal filed under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) with the necessary modification that the words "shall be accompanied by a copy of the judgment of the Court of first instance" will be read as referring to the copy of the judgment of the Rent Controller. It is laid down in Muhammad Hanif v. Faqir Muhammad (P L D 1977,Lah, 1214) that that copy must be filed unless it is dispensed with by the High Court. It is held that if the filing of such a copy is not dispensed with by the High Court, it is mandatory for the appellant to place such copy on record within the period of limitation. If the provisions of rule 2 of Order XLII, C. P. C. are not complied with the appeal cannot be treated to be properly constituted. In any case after tote expiry of the period of limitation for an appeal, such an appeal would be liable to be dismissed 'as barred by time, The same rule is set down in Akbar Khan v. Muhammad Razzaq (P L D 1979 S C 830). It has already been stated above that this Court did not dispense with the copy. Rather it was insisted upon that the same may be produced within 20 days, but in spite of such a direction, the copy was not placed on record. Since the provisions of Order XLII, rule 2, C. P. C. have not been complied with, the appeal cannot be treated to be properly constituted and the same would, therefore, be deemed to be barred by time. The appellant has failed to satisfy this Court that he had applied for the copy well within the period of limitation, and therefore no indulgence can be shown to him,

6. For. the reasons aforementioned there is no properly constituted appeal before this Court. It is therefore dismissed as time-barred. The parties are, however, left to bear their own costs. K. M. A. Appeal dismissed.