1980 PLP 2015 (CLC)

11. The learned counsel further contended that even if it be taken that the appeal without a certified copy of the impugned order was not properly constituted, the lapse in filing the same merited 'to be condoned, the appellant being a lady and there being a bona fide misunderstanding about the filing of the copies. He elaborated his argument by submitting that the appellant applied for certified copy of the order of the Additional District Judge and of the grounds of Appeal before filing the present appeal and the same when provided to him being corroded by white ants the appellant did not file the same but applied a fresh for obtaining certified copies which were submitted in the office of the High Court about two months ago.

12. The learned counsel, today, produced the certified copies provid ed to the appellant on her first application and also the set of certified copies provided to her on the second application. The second set of certified copies were alleged to have been brought by the appellant's husband today from the office of the High Court where, he alleged, the same were filed some two months ago. As would be presently seen, the plea raised about the filing of certified copies in the office of the High Court about two months ago is not correct.

13. In reply, the learned counsel for the respondent contended that no latitude could be shown to the appellant for filing certified copies now as not only the appeal was not competent and thus not maintainable but the delay in filing the appeal otherwise also could not be condoned ; section 5 of the Limitation Act being not applicable to appeals arising out of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959).

14. Taking into consideration first, the contention raised by the appellant that no certified copy of the impugned orders was required to be filed along with the appeal as the appeal to the High Court in rent cases is not against a decree but against an order, to say least, is wholly miscon ceived. The Explanation to section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) reads as under :- An appeal under the subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908 if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the Appellate Authority and the Provisions of Part VII and of the First Schedule to the said Code relating to appeals shall with such modifications as the context may require apply to such proceedings." It is, thus, obvious that an appeal under subsection (4) of section 15 of Ordinance VI of 1959 has to be treated as. a second appeal from an order under section 100 of the Code and provisions of Part VII and of the First Schedule to the said Code relating to appeals are to be applied. This means that to appeals filed under this subsection section 108 of the Civil Procedure Code as also Order XLIII, rule 2 shall apply. Clause (h) of section 108, lays down that the provisions of this Part relating to appeals from original decrees shall so far as may be apply to appeals from orders made under this Code or under any special or local law in which a different procedure is not provided. Admittedly no different procedure is provided for appeals under section 15 (4) of Ordinance VI of 1959, and, on the contrary, it has been provided that Part VII as also First Schedule thereof shall apply. By virtue of Order XLIII, rule 2 of the Code of Civil Procedure, the rules of Order XLI shall also apply to appeals fled under section 15 (4) or Ordinance VI of 1959. Now, Order XLI, rule 1 clearly lays down that every appeal shall be preferred in the form of a memorandum and that the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. Rule 2 of Order XLII provided that in addition to the copies specified in Order XLI, rule 1 the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance unless the Appellate Court dispenses therewith. ,

15. A conjunctive reading of the provisions contained in section 108, Order XLIII, rule 2, Order XLII, rules 1 and 2 and Order XLI, rule 1 of Code of Civil Procedure with section 15 (4) of the West Pakistan Urban Rent .Restriction Ordinance (VI of 1.959) leads to the irresistible conclu sion the to the appeals to the High Court under the Ordinance the provision, the Code of Civil Procedure relating to appeals to the High Court under the Code shall apply. My above view that an appeal under subsection (4) of section 15 of Ordinance VI of 1959 is for all intents and purposes a second appeal under the Code of Civil Procedure finds support from the case titled Ghulam Hasan Khan v. Rashid Ahmad (P L D 1967 Kar. 38). In this case it was held that the orders appealed against provided for under section 15 of the Ordinance are decrees or in any case orders having the force of the decree.

16. From the above discussion it, follows that in appeals to the High Court from an order of the Appellate Authority passed under Ordinance VI of 1959 the requirement of law is that the memorandum of appeal should be accompanied by a copy of the order of the Appellate Authority as also of the order of the Rent Controller and that without these copies the appeal would not be properly constituted. Needless to mention here' that the copies to be filed with the appeal under section 15(4) ibid have of necessity to be certified copies.

17. Reliance placed by the learned counsel for the appellant on P L D 1975 Lah. 699 is obviously misconceived and based on an erroneous appreciation of the law laid down therein. On perusal of the cited judgment it will be found that in this case a distinction has been drawn in so far as the appeals to the Appellate Authority and the High Court are concerned. It has been held that in so far as appeals to the Appellate Authority are concerned the procedure for filing of appeal to the Appellate Authority having been prescribed the provisions of Order XLI, rule 1 of the Code of Civil Procedure requiring the filing of a certified copy of the impugned order shall not apply. In so far as appeals to the High Court are concerned, it has been held that Explanation to subsection (4) of section 15, applies the provisions of the Civil Procedure Code to appeals before the High Court under the Ordinance. In para. 18 at page 705 of the cited judgment, it has been observed as under :- "The intention of the Legislature to the effect that only those provi sions of the Civil Procedure Code will apply to cases covered by the Ordinance which have been specifically applied, is made clear by the explanation to subsection (4) of section 15 which provides that the provisions of the Civil Procedure Code relating to appeals will apply to the High Court. It may be noted that even if these pro visions had not been there in section 15 (4) there can be no doubt that by virtue of section 117 of the Code of Civil Procedure the provisions of the Code would be applicable to the High Court on appeal filed before it under the provisions of the West Pakistan Urban Rent Restriction Ordinance."

18. The above observations in the cited judgment obviously lend support to the view taken by me that on a true construction of the provisions of section 15 (4) of Ordinance VI of 1959 it emerges that the appeals to the High Court under the Ordinance are to be governed by the provisions of the Code of Civil Procedure relating to appeals to the High Court under the Code. That being so, the present appeal having been filed without accompaniment of certified copies of the orders of the Appellate Authority and the Rent Controller is not properly constituted and is thus not maintainable especially when the certified copies have not been filed despite opportunity for filing the same having been afforded twice over and no plausible explanation forthcoming for not having complied with the order$ of the Court in this regard.

19. Adverting now to the contention raised on behalf of the appellant for condoning the lapse in not filing the certified copies, suffice it to say that it amounts to asking for a premium on the contumacious neglect of the, appellant. To appreciate the true import of the neglect we will have to revert to the facts of the case. As already pointed out above, this appeal was first taken up on Ist August, 1978 when on C. M. No. 4514/C 78 praying for dispensing with the filing of certified copies an order was passed allowing one week's time to file certified copies. Again, when the matter was taken up on 30th September, 1978 after the long vacations of that year, further time of 15 days was allowed to file certified copies as it was submitted then that the copies had not by that time even been pro vided. The appellant did not file the certified copies even after the lapse of 15 days from 30th September, 1978. The certified copies filed today in the Court show that the appellant for the first time applied for copy of the impugned order of the Additional District Judge dated 2nd July, 1978 on 29th July, 1978. This copy was ready on 12th October, 1978 but its delivery was taken on 5th December, 1978. This copy was therefore ready within the period allowed by the Court which expired on 15th October, 1978.

20. Be that as it may, it has been alleged that this copy was corroded by white-ants and was therefore not filed. But then it was the duty of the appellant to have immediately applied again for obtaining copy after filing the corroded copy itself in the Court. Even if it be assumed that the non-filing of the corroded copy was to save the record of the Court from being damaged at least application for obtaining second copy should have been made immediately after having taken delivery of the corroded copy and intimation of this fact also given to the Court. Not only no application was filed seeking further extension of time, no intimation in this regard was even given to the Court and yet another important aspect of the matter is that application for obtaining fresh copy was made on 8th December 1979, i.e. after full one year of having obtained the first copy. This second copy was again made ready on 9th December 1979, and taken delivery on 15th December, 1979 yet the same was not filed in the Court till date.

21. It was alleged by the learned counsel for the appellant that the certified copies were filed in the Registry about two months ago.

22. I sent for the official concerned who reported that no certified copy was presented in the office by the appellant or his counsel till date. The husband of the appellant had through the counsel for the appellant produced the second set of copies alleging that be had delivered it to a person in the office whom he could identify. He was asked to bring that person from the office along with him. Mubarak Shah Assistant working in the Civil Branch of the office appeared and informed this Court that these certified copies had been taken out by him today from the drawer of his table when the husband of the appellant came to him and told him that these copies were lying in his drawer but neither he had received them officially from any person as he was not the dealing hand nor had he the knowledge of these lying in his drawer. The above position clearly shows that the certified copies today produced in the Court having been obtained on the second application of the appellant were not filed in the Registry and in order to just make out a ground a crude attempt was spade to show that these had been so filed in the office. That these certified copies had not been duly filed in the office also finds support from the fact that no stamps had been affixed thereon as is required under the law.

23. The above narration of facts clearly tends to show that the appellant contumaciously neglected to file the certified copies of the impugned orders with the memorandum of appeal despite having been afforded opportunity twice over. The irresistible conclusion would be that the lapse of the appellant being intentional and contumacious can in no circumstance be condoned. The second contention raised on behalf of the appellant also therefore fails.

24. In view of the foregoing discussion, this appeal fails being not properly constituted and it is accordingly dismissed with costs.

25. The learned counsel for the appellant after pronouncement of the order submitted that the appellant has to make alternative arrangement and therefore one month's time may be allowed to her to deliver pos session.

26. The learned counsel for the respondent did not object to the allowing of the period of one month provided the appellant hands over vacant possession of the premises in dispute within the period of one month.

27. In view of this position one month's time is allowed to the appellant to hand over vacant possession of the premises in dispute to the respondent provided she deposits the rent for the month in advance in the Court or pays the same under a receipt to the respondent. In case of her failure to pay the rent or not delivering the possession after expiry of one month's period from today, the respondent would be entitled to obtain possession of the premises in dispute through the process of the Court. K. M. A. Petition dismissed.