1988 PLP 606 (MLD)

Dates of hearing: 13th and 17th January, 1988. This first rent appeal is directed against the order dated 10th day of May, 1984, passed by Xth Senior Civil Judge and Rent Controller, Karachi, whereby he allowed the eviction application filed by the respondent No. 1 and directed the respondent No. 2 to hand over the vacant and peaceful possession of the premises in dispute to the respondent No. 1 within two months from the date of the Order. The facts leading to the filing of the above appeal are that the respondent No. 1 is owner and landlord of the immovable property being plot of land bearing No. 629 with building thereon situated in P.I.B. Colony, Karachi. Predecessor‑in‑interest of respondent No. 2 was his tenant in respect of godown or store therein at the rate of Rs. 60 per month. The predecessor‑in‑interest of respondent No. 2 filed written‑statement. The respondent No. 1 filed his own affidavit‑in‑evidence in support of the eviction application besides affidavit‑in -evidence of his duly constituted attorney Ejaz Mubashir. The respondent No.2 did not file any affidavit‑m‑evidence. The learned counsel for the respondent No. 2 did not cross‑examine respondent No. 1 and his attorney. The learned Controller on the basis of evidence adduced by the respondent No. 1, and taking into consideration the arguments advanced by the learned counsel for the respondent No. 1, allowed the eviction application on all the three counts by order dated 10‑5‑1984. The respondent No. 2 did not file any appeal against impugned order. However, the appellant has preferred this First Rent Appeal on the grounds mentioned in the Memo of Appeal. I have heard the learned counsel for the parties and perused the impugned order and gone through the R & P of the case Mr. Syed Inayat Ali, the learned counsel for the respondent No. 1 pointed out that the appeal is barred by limitation whereupon the learned counsel for the appellant prayed for time and I adjourned it for arguments on the question of limitation to 17‑1‑1988. Under the scheme of the, Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), proceedings in the first instance are heard and determined by the Rent Controller. Against an order passed by the Rent Controller Section 21 of the ordinance provides for an appeal to the High Court within thirty days. The period of limitation for filing the appeal under this Ordinance is different from the period prescribed by Article 152 of the Limitation Act. Section 5 of the Limitation Act empowers the Court to admit an appeal or application other than applications under Order XXI, C.P.C. after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Section 29(2) provides that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law is undoubted, so the fact that section 21(1) of the Ordinance prescribes a period of limitation. In Syed Muhammad v. Mazhar Ali P L D 1981 Karachi 76, my learned brother Naeemuddin, J. (now Chief Justice) held that Section 5 of the Limitation Act was not applicable and the Court had no power to condone delay. In Abdul Ghaffar and others v. Mst. Mumtaz P L D 1982 SC 88, the Honourable Supreme Court held that section 5 of the Limitation Act did not govern appeals .before the High Court under section 21 of the Ordinance. High The question before the Honourable Supreme Court was whether the Court under the Sind Rented Premises Ordinance had power under section 5 read with section 29(2), Limitation Act to condone delay m respect of an appeal preferred after the prescribed time. The Honourable Supreme Court answered it in the negative after a detailed discussion of the authorities. The impugned order was passed on 10‑5‑1984. The application for certified copy was filed on 3‑7‑1984. The appeal was presented on 10‑7‑1984. The application for certified copy was filed on 3‑7‑1984 after expiry of 53 days from the passing of the impugned order. The appeal could be filed within thirty days from the date of order. Section 3 of the Limitation Act is mandatory and requires dismissal of the suit or appeal if it is filed beyond the period of limitation. The result is that the Court hearing the appeal from the eviction order if made after the period of limitation of thirty days prescribed therefor by the Ordinance is p liable to dismiss the same. Thus, in my opinion, the test that has been laid down by the Supreme Court in P L D 1982 SC 88 is directly applicable to the present case and the provisions of section 5 of limitation are not attracted in the present case as such the question of condonation of delay does not arise. The learned counsel for the appellant has submitted that the respondent No. 1, practised fraud upon him as he was not made a party in the eviction application. This submission is devoid of force. Firstly the appellant had not taken this plea in the memo of appeal. Secondly in para 8 of the memo of appeal he stated that the respondent No. 1 used to issue rent receipts in the name of the predecessor‑in‑interest of the respondent No. 2. 1 hold that section 5 of the Limitation Act does not apply to an appeal under section 21 of the Ordinance and that the learned counsel for the respondent is right in his submission. The appeal is dismissed but in the circumstances of the case without any order as to costs. However, the appellant is allowed to vacate the premises in dispute within six months from today. In case of default writ of possession will be issued without any notice to the appellant. The above are the reasons of my short order dated 17‑1‑1988 after conclusion of the arguments of the learned counsel for the parties. H.B.T./A‑362/K Appeal dismissed.