P L D 1967 Lahore 653 (PLP)

Having found both the issues in favour of the landlord he dismissed the application for setting aside the ex parte order.

4. Dissatisfied with this order the respondent Abdul Aziz went in appeal which was accepted by the learned Appellate Authority by its order dated the 23rd of January 1964.

5. The landlord has, therefore, filed this second appeal.

6. The first question that arises for determination in this appeal is whether the application for setting aside the ex parte order was made within time. The respondent was ejected in pursuance of the impugned order from the premises on the 29th of July 1961. He applied for a copy of the ex parte order on the 7th of August 1961. The copy was ready on the 19th of August 1961. It was delivered to the respondent on the 6th of September 1961. The application for setting aside the ex parte order was filed on the 19th of September 1961. It was urged in the application that the tenant had come to know of the passing of the order for the first time on the 29th of July 1961 and that he was not aware even of the filing of the application for ejectment before that date. He alleged that the reports made by the process, issued to him by process‑server on the process, issued to him by the court, did not give the correct facts. It was urged on behalf of the appellant that Article 164 of the Limitation Act was applicable to the case. This Article applies to applications made by a defendant for an order to set aside a decree passed ex parse. The period of limitation is prescribed as thirty days and the time begins to run from‑ "the date of decree or, where the summons was not duly served, when the applicant has knowledge of the decree." Since in the present case it was claimed that the summons has not been duly served the time would begin to run from the date when the applicant had knowledge of the passing of the ex parte order. As has been stated above, this date, according to the applicant, is 29th July 1961. Thirty days from this date would expire on the 28th of August 1961. Since the Civil Courts were closed for summer vacation during the month of August, the appellant urges that the application for setting aside the ex parte order could, at the latest, be presented on the 1st of September 1961, when the Courts reassembled after the vacation. It was, however, presented on the 19th of September 1961.

7. The respondent had claimed that he was entitled to deduct the time taken by him in obtaining copies of the ex parse order. Reliance was placed on section 12(3) of the Limitation Act which runs as follows:‑ "Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded." Learned counsel argued that this subsection was applicable only to cases where a copy of the decree or order is required to be filed along with the memorandum of appeal and since there is no provision in the West Pakistan Urban Rent Restriction Ordinance VI of 1959 for doing so, advantage of section 12 of the Limitation Act could not be taken by the respondent. A similar question arose in the case Punjab Co‑operative Bank Ltd., Ltd. Lahore v. official Liquidators, Punjab Cotton Press Co. Ltd. (in Liquidation) and others (A I R 1941 Lab. 157), decided by a Full Bench consisting of five Judges and reported. It was observed‑ "It must therefore be held that the decision in 16 Lah. 448 is not correct in so far as it purported to lay down, in broad terms, that the `time requisite' for obtaining a copy of the judgment appealed from, which under the rules of the High Court need not be filed with the memorandum of appeal, cannot be excluded for the purposes of limitation in the case of appeals under the Letters Patent. As has been stated above, appeals from orders passed by the High Court in the exercise of its original jurisdiction are governed by Article 151, which is subject to section 12, and therefore the appellant is entitled, as of right, to deduct the time requisite for obtaining copies. I would accordingly answer the first question in the affirmative." In view of this authoritative decision of this Court this objection raised by learned counsel for the appellant is of no avail to him.

8. It was then contended that the time requisite for obtaining a copy stopped running on the 19th of August 1961 when the copy was ready for delivery and. the mere fact that the tenant did not care to make enquiries about the copy from the Copying Agency and took delivery of it on the 6th of September 1961 would not entitle him to compute "time requisite" up to the date of delivery and that being so, the application was time- barred because it was presented on the 19th of September while the last date for filing the application would be the 10th of September 1961. The learned Rent Controller has observed that the applicant had shown no reason for not obtaining the copy from the Copying Agency from the 19th of August 1961 to the 6th of September 1961. This is a finding of fact and I have to accept it as it is. He could have been entitled to the benefit of the ruling in Gul Muhammad v. Allah Ditta (P L D 1960 Lah. 443), only if the delay had taken place‑ "by reason of the carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be ready, or in giving no information at all." Since he has not adduced any sufficient reasons, as held by the learned Rent Controller, he cannot be entitled to take into account the period from the 19th of August 1961 when the copy was ready in the Copying Agency up to the 6th of September 1961 when it was delivered to him. His application for setting aside the order would, therefore, be barred by limitation.

9. Learned counsel for the respondent submitted before me that since the Rent Controller was, strictly speaking, not a civil Court, only so much of the Civil Procedure Code would be applicable to his case as enabled him to file the application for setting aside the ex parte order under Order IX, rule 13 of that Code and that the mere fact that he did not file it within the time prescribed by Article 164 of the Limitation Act would not result in its becoming liable to dismissal under section 4 of the said Act. For this argument he placed reliance on the decision in Chand and others v. Abdul Ghaffar and others (P L D 1965 Lah. 596), where in the context of a writ petition, it was held‑ (Page 601) "The provision3 of Order XXII, rule 4, Civil Procedure Code, thus, do not apply to writ petitions and omission on the part of the appellants to implead the legal representatives of Abdul Aziz within the time specified in Article 177 of the Limitation Act did not result in the abatement of the appeal." (Page 599). "The scope of `procedure' in section 141, C. P. C. may not, therefore, be enlarged so as to include the technical provisions of the Code. Our approach to the construction of section 141, C. P. C., is that all the enabling provisions of the Code are applicable to the trial of writ petitions but not those which lay down certain penalties for failure to comply with those provisions. It may be said how are Courts to enforce those provisions if they are bereft of the power to impose penalties for non‑compliance. Such a power, however, becomes available under section 151 of the Code which provides . . . . . In that case their Lordships had come to the conclusion that proceedings under Article 98 were not in pari materia with suits and that, therefore, the provisions of Order XXII, rule 4 of the Code of Civil Procedure did not apply to writ petitions. There is no doubt about the fact that an application for ejectment of a tenant under section 13 of Ordinance Vi of 1959 is not a suit but there is equally, no doubt, that these proceedings are in pari materia with suits. Order IX, rule 13, C. P. C., is, therefore, applicable to these proceedings as being an enabling provision and the time prescribed by Article 164 of the Limitation Act would be similarly attracted.

10. I am, therefore, of the view that the order of the learned Appellate Authority cannot be maintained. I accept the appeal with costs, set aside the order of the learned Appellate Authority and dismiss the application for setting aside of the ex parte order passed by the learned Rent Controller on the 21st of July 1964. A. H. Appeal accepted.