P L D 1977 Karachi 749 (PLP)

S. Hamid Hussain for Appellant. Iqbal Ahmed for Respondent. Date of hearing : 11th April 1977. This is a second rent appeal from the judgment of the IV Additional District Judge, Karachi, dated 8‑9‑1976 dismissing the first appeal of the appellant as being barred by time. 2. Briefly stated, the facts are that the respondent, filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordi nance, 1959, against the appellant for her eviction on the ground of default in payment of rent. The application was resisted by the appellant, who dented the allegation of default. After framing relevant issues and recording evidence, the learned Rent Controller found that the appellant had committed default in payment of rent and accordingly by his order dated 30‑8‑1975 he granted the ejectment application and directed the appellant to hand over vacant possession of the premises to the respondent within one month of the date of the order. The appellant then filed first rent appeal on 15‑10‑75 and along with it she filed an application under section 5 of the Limitation Act, 1908, prying for condonation of the delay on the grounds and circumstances mentioned in the supporting affidavits dated 15‑10‑75 of the appellant, her son Mahmud Subhan Fateh and Mr. Raja Qureshi. Advocate. The three deponents consistently stated that the appellant's son and his Advocate were misled by the Peshkar of the Rent Controller. They stated that on 5‑8‑75 the Rent Controller heard arguments of the Advocates, reserved judgment and adjourned the case for orders on 16-8‑75. On that date Mr. Qureshi and the appellant's son attended the Court to receive judgment but the Peshkar informed them that the Presiding Officer was on leave and the case was put off for orders on 28‑8‑75. That on that day also both of them appeared but the Peshkar again in formed them that the orders were not ready and would be announced in 2 or 3 days' time. Thereafter both the Advocate and the appellant's son made repeated weekly enquiries from the Peshkar and every time they were informed that the judgment was not ready. Further that the appellant came to know of the judgment which was delivered on 30‑8.75 when she received notice of execution. Immediately she applied for copy of the judgment on 13‑10‑75 and filed the appeal on ‑15‑10‑75. The learned Judge held that the appeal eras time‑barred and that no sufficient cause had been made out for not preferring the appeal in time. Accordingly he dismissed the appeal as time‑barred. 3., It is not disputed that section 5, Limitation Act, applies to appeals preferred under section 15 of the Rent Ordinance. Indeed, the point has been concluded by a judgment of Waheeduddin Ahmed, J., as he then was, in Hatim Ali v. Mst. Zulekha Bibi (P L D 1974 Kar. 399) which was approved in Mansoor Husain v. Mureed (P L J 1974 Lah. 300). Tree only question, therefore, is whether the first appellate Court erred in law in holding that the appellant had not made out sufficient cause for condoning the delay in filing the appeal. Mr. Mamid Husain, the learned counsel for the appellant, has not satisfied me of any such error of law. The appellate Court had examined the circumstances urged on behalf of the appel lant for condoning the delay and rightly, in my opinion, rejected the same. Admittedly, the appellant's Advocate and her son attended the Court on 28‑8‑1975 to enquire about the order, The diary of the Rent Case No. 2170/71 confirms that the case was "put off to 30‑8‑75 for orders". Had the appellant's sin or her Advocate taken the trouble to see the Court diary of that date, they would have come to know that the case was adjourned for orders to 30‑8‑75. The statement to the contrary in the supporting affidavits that they were informed by the Peshkar that judgment was not ready every time they enquired from him, cannot, therefore, be accepted at its face value. As observed by the Supreme Court in Muhammad Nawaz and others v. Mst. Sakina Bibi (1974 S C M R 223), the initial obligation was on the appellant to enquire about the decision in the rent case and the circumstances show that she was not vigilant. In the circumstances, no exception can be taken to the impugned judgment. Accordingly, the appeal is dismissed with no order as to costs. 4. However, I would allow the appellant four months' time to vacate the premises. S. Q. Appeal dismissed.