P L D 1959 (W (PLP)

FARUQUI, J.‑The petitioners are the landlords of the building which is on plot No. 1/2 AI, Sheet No. R. B. 8, situated on Robson Road, Karachi and known as "Noor Chambers". The respondent No. 1, Athar Mirza, is the tenant in a portion of this building bearing tenement No.

80. On the 17th of May 1958, the said respondent made an application to the Rent Cont roller Karachi, under section 4 of the Karachi Rent Restriction Act, for fixation of fair rent of the said premises. He alleged in that application that he had occupied the premises on the first of February 1958. When a notice of this application was given to the landlords, they entered an opposition to the appli cation and submitted that the application was barred as having been filed very much after the lapse of a period of four months from the date on which the premises were first occupied by the applicant. It was asserted that the respondent No. 1 on his own admission as contained in his letter dated 28‑5‑57 had been in occupation of the premises for a period of more than two years and as such the application was barred under the proviso of section 4 of the Karachi Rent Restriction Act. It seems that there was some talk of compromise which evidently fell through and when the case came up for hearing before the Rent Controller on the 23rd of October 1958, he declined to decide the question of limitation as a separate issue in the first instance. The order of the Rent Controller reads as follows: "Parties could not compromise the matter. The enquiry has, therefore, to be proceeded on merits. The opponent has pleaded that the application is time‑barred, but it involves the recording of evidence on the point. I do not, therefore, wish to record part evidence and decide the enquiry on one issue only. The opponent has also not given any indication of the cost of construction of the building, which is said to be a post‑partition construction. I, therefore, direct the landlord to file the details of the cost of construction within one week from today. The disputed tenement is one small portion of the building, which consists of five floors. It would be impos sible to find out the costs of construction of the disputed premises only, in isolation from the rest of the building. It would be necessary to find out the cost of construction of the entire building and then apportion the fair rent in respect of the disputed premises, which would. involve automatic fixation of fair rent of the rest of the tenements. As there are other tenements in the building, let notice gq to them as well. The landlord to supply the names and addresses of the tenants within one week from today." The landlords felt aggrieved by this order of the Rent Controller and preferred a revision‑petition before the Chief Judge, Karachi Small Causes Court, who agreeing with the Rent Controller held that the Rent Controller need not first necessarily decide the question of limitation and that he was at full liberty to decide the whole case instead of hearing the plea of limitation as a preliminary issue. With this observation, he dismissed the revision application and remanded the case back to the Rent Controller for trial. The petitioners have therefore filed this writ petition praying for the issue of a writ of certiorari to quash the order of the Rent Controller and of the Chief Judge, Small Causes Court referred to above. Mr. Fazal Bhai, the learned advocate for the petitioners, has contended before us that having regard to the language of the first proviso to section 4 of the Karachi Rent Restriction Act, the learned Rent Controller was not entitled to enter upon an enquiry into the merits of the case when an objection had been taken before him that the application of the tenant could not be entertained on the ground that it was time‑barred. In order to understand this contention, it is necessary to quote the pro visions of section 4 of the Karachi Rent Restriction Act :‑ "

4. The Controller‑ (a) shall, in the case of premises in respect of which an application is made by the landlord or the tenant, on such appli cation, and (b) may in the case of any other premises, of his own motion, determine, after making such enquiry as he deems fit, the fair rent in accordance with the provisions of this Act . Provided that the Rent Controller shall not‑ (a) entertain any application, or "(b) take any action on his own motion, for determining the fair rent after the lapse of a period of four months next after the date on which the premises are first occupied: Provided further that the foregoing proviso shall not have effect until the expiry of a period of four months from the commencement of this Act." It may be noted that the above provision does not merely entitle the Rent Controller to dismiss the petition for fixation of fair rent if he finds that the same is barred by time. The first proviso to section 4 clearly lays down that the Rent Controller shall not entertain any application for determining the fair rent after the lapse of a period of four months next after the date on which the premises were first occupied nor could he take any action on his own motion in that regard. The question that arises is "when an objection is taken to the entertaining of an application for fixation of rent, is it open to the Rent Controller to say that he will proceed with the enquiry of the whole case on merits including the question of limitation without deciding it as the first thing ?" Mr. Khalid Ishaq, the learned A. A. G., who appeared for the Rent Controller and the Chief Judge Small Causes Court, strenuously contended that if the fact of the application being barred by time was not apparent from the application itself and was a matter of controversy between the contending parties which necessarily would involve the taking of evidence, the Controller was not bound to decide the issue of limitation in the first instance. He said that the position was no different from what frequently arises in civil suits where a plea of limitation is raised and which is decided along with the other pleas relating to the merits of the case. He, therefore, contended that if a Judge deciding a civil suit was not bound to try the issue of limitation as a preli minary issue if the determination thereof involved a question of both fact and law, then the Rent Controller was not bound to decide such an issue as the first thing. The answer to the contention of the learned A. A. G. is to' be found in the clear wording of the first proviso to section 4 of the Karachi Rent Restriction Act and the distinction between it and the provisions of section 3 of the Limitation Act. While the proviso to section 4 of the Karachi Rent Restriction Act prohibits the entertaining of any application which is barred by, time, section 3 of the Limitation Act merely enables the Court to dismiss the suit and appeal etc., which is instituted or preferred after the period of limitation although limitation may not have been set up as a defence. The entertainment of an application relates to the initial stage whereas the dismissal can be ordered at any time. The first proviso to section 4 of the Karachi Rent Restriction Act tells the Rent Controller that he shall not entertain an application which is made after the expiry of four months of the occupation of the premises and that, he shall not take any action on his own motion in such a, situation. If, therefore in an application, which has‑been instituted before the Rent Controller under section 4, the opposite party appears and tells him "you cannot entertain this applica tion because it is time‑barred," it seems to us to be clear that he will have to determine that question first because for the reason of the lapse of time, the Rent Controller is prohibited from interfering with the application or taking any action. It seems difficult to see how he can, before deciding the question whether he is going to entertain the application, enter upon an enquiry into the merits 9f the ease end examine witnesses about the valuation of property and with regard to all other relevant facts which may become necessary for the determination of the fair rent. Because, if it is found that the requisite time has elapsed, then apart from sheer waste of all such time as may be taken in the enquiry on merits it would appear that all such proceedings would be completely without jurisdiction. Having regard to the words used in the second proviso to section 4 a time‑barred application is a nullity, which could not just be entertained and in such a case the opposite party would be entitled to say to the Rent Controller "you cannot enter upon an enquiry into the merits of the case because before you there is no petition in the eyes of law." In this case, the learned Rent Controller not merely, declined to hear the evidence on the question of limitation separately and decide the question in the first instance, but also directed the landlords to file the details of construction within a week and embarked upon the task of fixing the fair rent of all the other tenements in this five storeyed building besides that of the applicant. He was thus clearly in error. In view of what has been said above, we hold that the order of the Rent Controller in so far as it seeks to enter upon an enquiry into the merits of the case without first deciding the question of limitation which alone would entitled him to properly entertain the application, is an error apparent on the face of the record. We would, therefore, quash the order of the Rent Controller and that of the Chief Judge, Small Causes Court, who has upheld the same. It would be open for the Rent Con troller to proceed to decide the question of limitation in this case, and if he finds it in favour of the applicant he will proceed to decide the case on merits. K. B. A./A. H. Petition accepted. Order quashed.