P L D 1983 Karachi 417 (PLP)

?JUDGMENT This appeal has been filed against the order dated 24-10-1977 passed by President Summary Military Court `C', Karachi. Appeal has been filed under section 21 of Sind Rented Premises Ordinance, 1979 read with section 2, subsection (2) of Military Courts Validation of Orders Ordinance, 1980.

1. The brief facts of the case are that the appellant is the tenant of the respondent in respect of Flat No. 28 of Jehangir? House, Hussain D'Silva Gardens, Nishtar Road, Karachi. On an application filed by the respondent under M. L. O. 20 the President of the Summary Military Court by decision dated 24-10-1917 directed the appellant to hand over vacant possession of the aforementioned flat to the respondent. The said decision was challenged by the appellant by filing C. P. No. D-39 of 1978 on 9-1-1978 in this Court. The said petition though admitted for regular hearing was dismissed for non-prosecution on 12-10-1980. Subsequently an application was filed for its restoration but the same was rejected by Order passed on 16-12-1980 with the observations that orders of eviction passed by the Military Courts under M. L. O. 20 have become appealable to the High Court (under Sind Ordinance No. I of 1980). For the reason of such remedy being available it was observed that the petition itself was not maintainable.

2. The petitioner thereafter on 6-1-198! filed this appeal in this Court under section 21 of the Sind Rented Premises Ordinance, 1979 read with section 2 subsection (2) of the Military Courts Validation of Orders Ordinance No. 1 of 1980 which came into force on 19-1-1980. It was accompanied by an application under section 14 of the Limitation Act to exclude the period during which the appellant was prosecuting C. P. No. D-39 of 1978 till it, was finally disposed of.

3. Preliminary _ objection however was raised on behalf of the respondent at the hearing that the appeal is barred by time and - thus liable to be dismissed: At the outset it may be mentioned that it is settled law that provisions of section 5 of the Limitation Act are not applicable to 'appeals filed under/ section .21 of the Sind, Rented Premises Ordinance, 1979. The learned counsel for the appellant however placed reliance on section -14 of the Limitation Act for excluding the period during which the appellant was prosecuting Constitution Petition No. 39-D of 1978 filed by him earlier but which was dismissed for default on 12-10-1980 and the application for its restoration was rejected on 16-12-1980 by a learned Division Bench of this , Court. According to the learned counsel time spent till the last mentioned date is liable to be excluded in computing the period of limitation under section 14 of the Limitation Act.

4. Perusal oft he provisions of section 14 of the Limitation Act shows that the time during which another civil proceeding was being prosecuted with due diligence against the same party for the same relief in good faith, in a Court which from defect of jurisdiction or other cruse of a tike nature is unable to entertain it, could be excluded. I however find that the Constitution Petition referred to above, was dismissed for non-prosecution on 12-10-1980.. Much before this date Sind Ordinance No. I of 1980 (Military Courts Validation of Orders Ordinance came into force with effect from 19-1-1980, which while validating order passed by Military- Courts under M. L. O. 20 provided that any person aggrieved by any such order may within 30 days of the commencement of the said Ordinance prefer an appeal to the High Court. The appellant thus on termination of the proceedings in the Constitution Petition by its dismissal for non-prosecution had two remedies open to him. He could file an application to set aside the said order of dismissal of his petition and at the same time could also file appeal under abovementioned Ordinance of 1980. He however chose to move application for restoration of the Constitution .Petition and remained contended with the same. The present appeal was filed by him only after his aforementioned application had been rejected on 10-12-1980. The time which thus elapsed between the filing of the application and its dismissal was actually pending, cannot be excluded under section 141 of the Limitation Act in computing period of limitation prescribe) by the law, for filing the appeal. If any authority is needed reference be made to the case of Shah Muhammad v. Ghulam and another (P L D 1970 S C 196). Moreover the failure of the appellant to file the appeal promptly clearly shows that he had not acted with due diligence. 5: For the reasons discussed above, I find that the present appeal is barred by time and the same is accordingly dismissed. The appellant is granted four months time to vacate. the premises subject to the condition that during this period he shall deposit rent in the Court of the Rent Controller every month. M. Y .M.??????????????????????????????????????????????????????????????????????????????? Appeal dismissed. ?