1996 PLP 1842 (MLD)

Respondent Anjuman claiming to be landlords of Shops Nos. 56, 13 and 61 attached to the respondent Mosque filed eviction application against each of the appellants on the ground of default since October, 1973, March, 1976 and October, 1983 respectively. In each of the cases rate of rent was Rs. 4 per month whereas in Case No. 799 of 1990 it was claimed at Rs.3 per month. Appellants resisted eviction proceedings and filed a separate written statement in each case claiming to be owner of the shop premises. It is the case of the appellant that he occupied a piece of land and constructed a shop over it some times in 1967; never paid any rent to the respondent and no receipt was issued for payment of rent. In support of respondent's case, President of the Anjuman Haji Hilal Ahmad appeared in the witness‑box whereas each of the appellants appeared as hie nwn witness in rebuttal. On assessment of evidence, learned Rent Controller by identical orders dated 3‑8‑1993 held that there existed relationship of landlords and tenant between the parties and that each of the appellants was in default in payment of rent. Consequently, they were ordered to be evicted which ‑order has been impugned in these appeals. During pendency of the appeals, respondent in each case filed an application under section 3 read with section 12 of the Limitation Act, 1908, praying for dismissal of the appeals as being barred by limitation. These applications have been numbered as C.M.As. 130, 131 and 132 of 1994. Learned counsel for the parties addressed this Court at quite some length and took me through the evidence on record but in view of the bar of limitation and the view to be taken in these appeals it may not be necessary to go into merits. In each of the cases, impugned order was passed of 3‑8‑1993; certified copy was applied on 15‑8‑1993; fees were estimated on 16‑8‑1993; the same were deposited on 17 ‑,,R‑1993; copy was made ready on 24‑8‑1993; stamp was supplied on 12‑10‑1993 and certified copy was delivered on the said day, i. e. 12‑10‑1993, whereas appeal in each case was presented on 27‑10‑1993. There is no doubt that by reason of section 12 of the Limitation Act appellant is entitled to the exclusion of period requisite in obtaining certified copy of the order. In this case, it is evident from the material record that copy was made ready on 24‑8‑1993 whereas it was delivered to the appellant on 24‑10‑1993 as he supplied stamp on the said day. In this connection reference may be made two judgment of the Supreme Court in the case of Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 SCMR 157 and Mst. Jamila Khatoon and another v. Mst. Tajunnisa and others PLD 1984 SC

208. In Fateh Muhammad's case it was laid down by the Supreme Court that time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between date of application for supply of copy and the date when it is ready for delivery. Even during this interval due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which he had no control and which could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy. Hon'ble Supreme Court finally held that the time between date on which the copy is ready for delivery and the date on which the applicant chooses to take delivery thereof is not a part of the time "requisite" for obtaining a copy. This view was followed in Jamila Khatoon' s case in which a reference was also made to rules 323, 324, 329 and 331 of the Sindh Civil Courts Rules. Referring to rule 331 of the aforesaid rules, it was observed that this rule only relates to copies ready for delivery to be included in the list on the notice board and since prior to relevant date the copy was not ready for want of stamp, it could not be included in the list under this rule. It was further observed that otherwise apparently appellant seems to have been aware on the aforesaid date when he supplied the stamps to the office that the copy will be ready for delivery as soon as certification was made thereon which is clear from the fact that he received the delivery of the copy within three days. In the present case, it would appear that appellant had deposited the fees on 17‑8‑1993 and copy was supposed to be ready within seven days, i. e. by 24‑8‑1993 but he did not show any diligence by approaching the office and supplying stamp to be affixed on the certified copy in order to obtain delivery. In the circumstances, it was not imperative on the part of the Copying Agency to issue a notice to the appellant to supply requisite stamp and to obtain delivery. Evidently copy could not be included in the list for affixation on the notice board as stamp was not supplied within seven days of the deposit of copying fees. Appellant was, therefore, very clearly negligent in persuing his remedy and filed the appeal long beyond the prescribed period of 30 days under the Sindh Rented Premises Ordinance. Needless to observe, period beyond 30 days for filing 'appeal cannot be condoned by the Appellate Authority in exercise of the power under section 5 of the Limitation Act as it has been held that the said A provision of law is not applicable to the proceedings under rent laws. This view was taken by. Hon'ble Supreme Court in the case of Abdul Ghaffar v. Mst. Mumtaz PLD 1982 SC

88. Learned counsel for appellants contended that the time limit of the 30 days for filing appeal would not be attracted as the impugned order is null and void in the eyes of law but it is difficult to subscribe to this view of the counsel as the impugned order on the face of it is neither void nor passed without jurisdiction. On close scrutiny of evidence, possibly there could be a difference of opinion, but this circumstance by itself would not justify to overlook the time limit for entertaining an appeal. In view of what has been stated above, these appeals having been filed beyond the period, prescribed by law are clearly barred by time and liable to be dismissed on this score alone. I order accordingly. Each of the appellants is, however, allowed 60 days' time to vacate the demised premises. H.B.T./F‑1/K Appeal dismissed.