2013 PLP 1911 (YLR)

ABDUL RASOOL MEMON, J.

Appellant Syed Akbar Ali Shah being aggrieved and dissatisfied with the order dated 25-3-2010 whereby an application under section 12(2), C.P.C. filed by the appellant in (Rent Application No.102 of 1999) was dismissed by the Additional Controller of Rents, Clifton Cantonment, Karachi, with the following observations:-- "I have perused the application under section 12(2), C.P.C, and counter-reply of the parties. I have also perused the case file of Rent Case No.102 of 1999 heard the arguments of the parties and also perused the Case Laws relied on by the counsel of the parties in support of their contentions. The record showing that the main case was decided on merits of the case after thoroughly adjudication and. on the basis of evidence of the parties and also reveals from record that the respondent filed appeal before the higher formus and the same were dismissed. The application under section 12(2), C.P.C. is time-barred and furthermore the respondent has already availed the right of appeal therefore, the application under section 12(2), C.P.C. is not maintainable at this stage. The provisions of C.P.C. in the rent matters under the provisions of Cantonments Rent Restriction Act, 1963 are only applicable to the extent as given in section 27 of Cantonments Rent Restriction Act, 1963. Foregoing in view I dismiss the application under section 12(2), C.P.C. on account of being time-barred and not maintainable under the provisions of Cantonments Rent Restriction Act, 1963. The appli-cation is disposed off. Parties are left to bear their own cost. File be consigned to record".

2. Learned counsel for the appellant contends that appellant after passing of the order by Hon'ble Supreme Court in C.P.L.A. No.861-K of 2005 on 4-1-2006, preferred this application before the Rent Controller wherein it was specifically pleaded that photocopies of Annexures filed with the application as Annexure-A, B, C and D were not in his possession, therefore, he could not move the application within time. He further contends Rent Controller to have framed the issue but without framing the issue on factual controversy has summarily dismissed the application. He prays for setting aside the order of Rent Controller and remanding the case for framing of the issues and allowing the parties to adduce evidence.

3. Conversely, learned counsel for the respondent argues that the appellant in para-14 of his application has challenged the order dated 6-6-2005 passed by the Rent Controller while the application under section 12(2), C.P.C. was filed before the Rent Controller on 11th June, 2009 after delay of more than 3 years; that the appellant by filing of this application intends to re-open the Rent Case and re-agitate the points which had already been adjudicated by the Rent Controller and upheld by the High Court so also Hon'ble Supreme Court; that after the judgment of Rent Controller, there were two remedies available to the appellant either to challenge the order by appeal as provided under the law or to move application under section 12(2) C.P.C. As the appellant has already availed the remedy of appeal, therefore, the very application under section 12(2) C.P.C. is not maintainable and hit by Article 181 of the Limitation Act, being filed beyond the period of three years. No plausible explanation has been given for delay in filing this application; that it is not obligatory upon the court to frame issues in the case, if application appears to be without substance. In support of his contention he has placed reliance on case of Sheikh MUHAMMAD SADIQ v. ELAHI BAKHSH and 2 others (2006 SCMR 12), LAHORE DEVELOPMENT AUTHORITY through Director-General, LDA, LAHORE v. Mst. SHAMIM AKHTAR and another (2003 MLD 1543 (Lahore) and ARDESHIR COWASJEE and others v. K.B.C.A. and others (PLD 2003 Karachi 314).

4. I have given careful consideration to the arguments of learned counsel for the parties and have gone through the documents available on record. I have also considered citations relied upon by the parties counsel. It is admitted fact on record that in this matter an ejectment application was filed on 2-11-1999 and written statement was filed by the present appellant on 11-12-1999. It is also not disputed that the tentative rent order was passed on 4-4-2000, which was challenged by the present appellant in C.P. No.S-180 of 2000 and it was decided on 26-9-2000. It is also the matter of fact that ejectment order was passed on 6-6-2005 which was assailed in F.R.A. No.120 of 2005 before this court and the appeal was dismissed on 3-11-2005. The order in F.R.A. No.120 of 2005 was challenged before the Hon'ble Supreme Court in C.P.L.A. No.867-K of 2005 which too was dismissed on 4-1-2006. This application under section 12(2), C.P.C. is mainly filed on the grounds that the additional Rent Controller failed to appreciate that ejectment order was passed without jurisdiction; besides that the respondent also failed to prove the payment of rent through any mode, even not produced the financial statement; that the undertaking of the appellant is claimed to be forged and fabricated; its stamp papers dated 10-5-1997 said to be not purchased by the appellant from the Stamp Vendor Akeel A. Shaikh, in addition to that no notice of default or non-payment of rent was issued to the appellant of filing of the ejectment application.

5. I have consulted with the record, the aforesaid plea of fake agreement had already been agitated in the written statement filed by the applicant in Rent Application No.102 of 1999. The contention of learned counsel for the appellant regarding framing of issue is devoid of force in view of the case of Warraich Darri Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCMR 531) wherein it is held that it is not obligatory for the court to frame the issue and record evidence in each and every case, as such application could be decided on the basis of available evidence and relevant record if considered sufficient by the court and framing of issues would depend on circumstances of each case. Considering the facts of this case on the basis of dictum laid down in the aforesaid case-law I am of the opinion that on the basis of material available with the Rent Controller there was no need to frame issues for the reasons that pleas taken up by the appellant in respect of relationship of landlord and tenant had already been decided after giving an opportunity to lead evidence and hearing parties by the Rent Controller and the said order has attained finality before the Hon'ble Supreme Court.

6. It is also not disputed that possession of the demised premises was handed over to the respondents 4 years prior to filing of this application. The limitation for filing of the application under section 12(2), as provided under Article 181 of the Limitation Act, is three years, in this respect I am fortified by a case of Lahore Development Authority through Director General L.D.A. Lahore v. Mst. Shamim Akhtar (2003 MLD 1543). The application filed on 11-6-2009 for setting aside the order dated 6-6-2005 after about 4 years and 3 months. The plea of learned counsel for the applicant that the limitation in this case would run from the date of order of Hon'ble Supreme Court, which was passed on 4-1-2006. If period of limitation is counted from the date of order of Hon'ble Supreme Court, even then this application is filed after delay of more than three years.

7. So far as the knowledge of appellant is concerned, the order dated 6-6-2005 passed by the Rent Controller on 4-1-2006 and Hon'ble Supreme Court in C.P.L.A. No.867-K of 2005 on 4-1-2006 was well in knowledge of the appellant because he was contesting the matters before both the forums. It is settled law that delay of each day is to be explained for bringing the case within the limitation. Moreover, the law always favours the vigilant and not to the indolent, sleeping over their rights. Considering the above factual and legal position, I am of the opinion that order of the learned Rent Controller rejecting the application of the applicant under section 12(2), C.P.C. is justified and does not require any interference. Accordingly the appeal stands dismissed. SAK/A-26/K Appeal dismissed.