1986 PLP 1437 (MLD)

A.K.M. Idris and Haji Allauddin Ansari for Appellants. Abid Hussain for Respondent. Date of hearing: 18th February 1986. This is a second appeal filed by the landlord under section 15(4) of the 1959 Rent Ordinance read with section 27 of the Sind Rented Premises Ordinance, '1979. During the pendency of the present second appeal, the landlord died and his legal heirs had been brought on record. For three out of the four legal heirs Messrs A.K.M. Idris and Haji Allauddin Ansari, Advocates, appeared. For the fourth legal heir Maimoona Begum no one appears, and she has been called absent. I have heard the learned counsel for the parties, who are represented namely Messrs A.K.M.Idris and Haji Allauddin Ansari, learned counsel for the appellants 1‑A, 1‑B and 1‑C and Mr. Abid Hussain learned counsel for the respondent.

2. In this case the ejectment application had been filed on the ground of personal requirement and 'default. A tentative rent order, dated 19‑10‑1977 was passed. An application for striking off the defence of the tenant was moved by the landlord and by order, dated 20‑8‑1978 the defence of the respondent /tenant was struck off by the Rent Controller on the ground that there was a default in the deposit of rent by the respondent. An appeal was filed by the tenant and by the impugned order, dated 20‑5‑1980, the learned Second Additional District Judge, Karachi, allowing the appeal set aside the order, dated 20‑8‑1978 striking off the defence of the tenant. Being aggrieved, the landlord came to this Court in second appeal.

3. Learned counsel for the appellants /landlords has argued that the tentative rent order had been passed in very clear terms and there cannot possibly be any ambiguity about the same. According to the learned counsel, no case is made out at all by the tenant for setting aside the order, dated 20‑8‑1978 striking off the defence of the tenant and the First Appellate Authority erred in allowing the appeal of the tenant. The argument on merits addressed by the learned counsel for the appellants appear to have substance but then it was pointed out by Mr. Abia Hussain, learned counsel for respondent /tenant that this second appeal is barred by time. The date of the order of the First Appellate Authority is 20‑8‑1980. A certified copy of the order of the First Appellate Authority filed in the present second appeal shows that an application for certified copy was made by the landlord on 21‑5‑1980 and the costs were deposited on 22‑5‑1980 and the certifies copy of the impugned order of the First Appellate Authority was deliverer to the landlord on ‑24‑5‑1980. It is an admitted position that during th~ last week of May, 1980, the High Court was open and was not ii vacation and the vacations started in June, 1980. It is also an admittet position that after the summer vacation of 1980, the High Court re‑opened on 9‑8‑1980. The present appeal was filed in this Court on 11‑8‑1980 In this case the period of .limitation prescribed by section 15 of the 1959 Rent Ordinance was expiring during the summer vacations of 1981 of the High Court and under section 4 of the Limitation Act, 1908 the second appeal should have been filed on the day, on which the High Court re‑opened after the summer vacations of 1980 i.e. on 9‑8‑1980 Section 4 read as follows:.‑ "Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed the suit, appeal or application may be instituted preferred or made on the day when the Court re‑opens." The second appeal was, therefore, barred by limitation. It was, however, contended by Mr. A.K.M. ldris, learned counsel for the appellant 1(a) that there is only two days' delay in the filing of the appeal inasmuch as instead of the appeal having been filed or 9‑8‑1980, the day When the High Court re‑opened, it was filed or 11‑8‑1980 and there is an application under section 5 of the Limitation Act also filed in this case, which is supported by the affidavit of the deceased landlord that he had fallen ill and he was an old man of 8 years of age. I find no ground for condoning the delay. It has beer pointed out by the learned counsel for the respondent that after the order, dated 20‑5‑1980 of the First Appellate Authority, the case was remanded to the Rent Controller for further proceedings on merits and in fact during July, 1980, some proceedings took place before the Rent Controller, which were attended on behalf of the deceased appellant. It was additionally argued by Mr. A . K . M . Idris; learned counsel for the appellant that the order of the First Appellate Authority is e void order inasmuch as the First Appellate Authority has gone against the clear provisions of section 13(6) of the 1959 Rent Ordinance and the impugned order, dated 20‑5‑1980 of the learned Second Additional District Judge being a void order there is no limitation for challenging the said order. In the facts and circumstances of this case, I do not agree with the proposition advanced by the learned counsel for the appellant. The order of the learned First Appellate Authority is not a void order. It may be an order, which is liable to be set aside inasmuch as it has‑ not been passed in accordance with provisions of section 13(6) of the 1959 Rent Ordinance but it cannot be termed as an void order.

4. As the appeal is patently barred by time, Second Appeal No.306 of 1980 is dismissed with no order as to costs. This is an old matter. The R and P will be sent back to the Rent Controller forthwith and it is directed that he should finalize the case before the coming summer vacations. H.B .T Appeal dismissed.