2009 PLP 177 (CLC)

GHULAM DASTAGIR A. SHAHANI, J.

Constitution Petition is submitted on behalf of the petitioner namely Muhammad Yaqoob son of Abdul Shakoor, whereby the petitioner called in question the order passed by learned IX-Senior Civil Judge/Rent Controller Karachi East on 23-7-2007 and 16-11-2007 in a Rent Case No.438 of 2004, whereby the petitioner was directed to vacate and hand over the vacant and peaceful possession of the property in question to the respondent within a period of 60 days from the date of the order. However, petitioner preferred Rent Appeal No.86 of 2008 before learned II-Additional District Judge, Karachi East, after delay of nine months together with an application under section 5 of the Limitation Act, but the said application under section 5 of the Limitation Act was dismissed. Consequently, the appeal was also dismissed as not maintainable. Hence present Constitutional petition. Heard learned counsel for the petitioner and perused the material available on record. Learned counsel for the petitioner states that property in question was purchased by the petitioner by virtue of an agreement of sale dated 8-9-1983 and property is in his possession in a part performance of the contract. He further states that order dated 23rd July, 2007 and 16-11-2007 passed by the learned Rent Controller in a Rent Application No.438 of 2004 Mst. Zaibunissa v. Muhammad Yaqoob are one sided and ex parte orders without providing an opportunity of hearing to his client who is unaware in respect of aforesaid orders, by which application moved under sections 16(1) and 16(2) of the Sindh Rented Premises Ordinance, 1979 were disposed of. He further states that Rent Appeal No.86 of 2008 was filed by Muhammad Yakoob (petitioner), but same was also dismissed being time barred. Learned counsel relied upon Muhammad Raz Khan v. Government of N.-W.F.P and another PLD 1997 SC 397 and Muhammad Raz Khan v. Government of N.-W.F.P and another PLD 1997 SC 397 respectively. I have gone through the material placed before me. So far as the first contention of the learned counsel is concerned, no civil litigation is pending between the parties nor suit has been filed by the petitioner, though he is well aware and status of the property is in dispute. However, as regards to second contention of the learned counsel is concerned, he has failed to satisfy the Court that orders were passed without providing opportunity to the petitioner. It is pertinent to mention here that the learned Rent Controller in his order dated 23-7-2007 clearly mentioned that the opponent/petitioner filed objection to such application under section 16(1) of Sindh Rented Premises Ordinance, 1979. However, the learned Trial Court after going through the material directed the petitioner to deposit the arrears of rent at the rate of Rs.2,000 per month with effect from November 2002 to October, 2005 i.e. (36) months amounting to Rs.72,000 and Rs.2,200 with effect from November, 2005 to August, 2007 i.e. (21) months amounting to Rs.46,200 total amounting to Rs.1,18,200 within a period of 30 days from the date of the order. Petitioner was further directed to deposit the future monthly rent on or before the 10th of each calendar subsequent month, but petitioner failed to deposit the arrears of rent and future rent, therefore, the respondent/Landlady filed application under section 16(2) of Sindh Rented Premises Ordinance 1979, which was allowed by order dated 16-11-2007, hence, plea raised by the learned counsel for the petitioner that petitioner was not provided any opportunity of hearing is not tenable. Nevertheless, it is evident from the record that Rent appeal preferred by the petitioner was also time barred, which shows the conduct of the petitioner that how he is vigilant in proceeding his case. The case law cited by the learned counsel is not relevant to the case in hand, as in that cases, the Honourable Supreme Court of Pakistan extended against void orders and observed that void order could at best be assailed by computing period of limitation when affected party came to know about infirmity or defect in a impugned judgment. However, it is settled law that principle of justice and fair play does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber, as each and every day is to be explained. Not only this, but he has to establish that it was not possible for him to appear and was beyond his control to appear within a due course of time for a particular purpose and to show that what was the sufficient cause or reason due to which a party failed to appear and not approached to the competent Court of law within a particular time, as in case of non-compliance, negligence on the part of party cannot be shifted to the other side, and party be so vigilant in respect of his claim and interest and party has to suffer, and nobody else be blamed in this respect, though it is a settled law that each and every case is to be decided on its own merits, even one day's delay has not been condoned, as held in a Criminal Acquittal Appeal Noor Hussain v. Muhammad Salim 1985 SCMR

893. In the light of aforesaid circumstances, petitioner cannot invoke jurisdiction of this Court. Even otherwise no illegality or violation of law is pointed out by the learned counsel. Therefore, orders passed by the Courts below being proper and legal do not require any interference and are therefore, maintained and C. P. No. S-404 of 2008 is dismissed in limine. For these reasons petition was dismissed in limine by a short order dated 22-9-2008. These are the reasons for the same. M.H./M-161/K Petition dismissed.