1991 PLP 1386 (MLD)

(iii) That the appellant was lying ill and consequently he could not make the application under Order 9, rule 13, C.P.C., within time, and the delay, if any was liable to be condoned on this ground.

6. The perusal of the record shows that the appellant was served in person for his appearance before the Rent Controller on 23-11-1989. He, however, failed to appear before the Rent Controller, and consequently after recording the statement of process-server on oath, the Rent Controller held the service good, which ultimately resulted into an ex parte order of ejectment passed on 3-3-1990. The appellant has not seriously questioned the factum of service of summons upon him. The explanation furnished by him in this behalf rinds place in paragraph 8 of the memorandum of appeal in the following words:- "That the respondent's brother Syed Razi Ahmed served him some light refreshment with tea with his own hands and after taking tea the sense of the appellant became ineffective which he thought it may be due to high blood pressure and it need him to believe that the respondent with the collaboration of her brother obtained his signature for the purpose of proving service of the said ex parte Rent case on the appellant. The Bailiffs report dated 18-11-1989 regarding the service of summons of the said Rent case is the result of malpractice and mechanisation of the respondent and her brother Syed Razi Ahmed, consequent upon which the said rent case was proceeded ex parte and finally an ex parte judgment dated 3-3-1990 announced by the learned lower Court."

9. It may be added that the appellant has not disputed the genuineness of his signature on the copy of summons, which is duly proved by the process-server, who had no reason to depose falsely against him. In cases, where the defendant/opponent is served with summons personally, the starting point of limitation is the date on which the decree/order is passed. Article 164 of the Limitation Act, 1908, prescribes a period of thirty days for making an application under Order 9, rule 13, C.P.C., which will be counted from the date of decree or where the summons was not duly served, when the applicant has knowledge of the decree. On the face of the record the application under Order 9, rule 13, C.P.C. could have been filed upto 3-4-1990, but the same was delayed till 3-11-1990, and was barred by time by seven months.

10. Even if it is assumed for the sake of arguments that the appellant was not served properly and only his signatures were obtained, it is clear from the record that he had notice of execution application on 11-8-199)

0. The application under Order 9, rule 13, C.P.C. was, however, not riled within thirty days of the knowledge, but it was filed on 3-11-1990 long after the expiry of period of limitation. The photo-copy of medical certificate, which is placed on record simply suggests that the appellant was operated upon for hernia on 3-10-1990. There is nothing on record to even faintly suggest that the appellant was all along ill for a period of one year during which the above developments took place.

11. Mr. Latif-ur-Rehman, learned counsel for the appellant has placed reliance upon following authorities in support of his contention that the delay, if any, was condonable:- (i) Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21). (ii) Abdul Rashid v. Abdul Shamim and another 1981 CLC 550). (iii) Mashlakhuddin v. Syed Ali Haider (1982 SCMR 570). (iv) Mst. Rukiya Bai and others v. Mst. Aqila Begum and others (1985 SCMR 977). (v) Navaid Hussain v. Mrs. A. Mirza (1982 CLC 1518). ( vi)Muhammad Sadiq v. Zaheer Ahmad (1984 CLC 2236). (vii) Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat (1989 SCMR 883). (viii) Moulvi Abdul. Ghani v. Mir Muhammad Amin and others (1990 SCMR 671).

12. There can be no cavil with the proposition of law enunciated in these cases, but having regard to the circumstances indicated above, I abstain from encumbering this judgment by a detailed examination of these cases, which are distinguishable.

13. With regard to the objection about the note recorded by the Reader, reliance is placed upon the case of Abdul Shakoor v. Syed Shahid Hussain, reported in 1984 SCMR 174, which is only an order granting leave to appeal. The facts of the present case are, however, different. On 23-11-1989, which was the first date of hearing, the Rent Controller was on leave and in his absence the Reader had noted down the following:- "P.O. is on leave. Case called. Applicant Advocate present. Notice returned served with the endorsement of bailiff. None is present for the opponent side. Put off to 2-12-1989 for orders." The order in this case was passed by the Rent Controller himself on 3-1-1990 after he recorded the statement of process server on oath. No irregularity or illegality was committed by adopting this procedure.

14. Even otherwise the delay in filing an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, cannot be condoned as the provisions of section 5 of the Limitation Act, 1908, are not applicable to such appeals. If any authority is needed the case reported as Syed Muhammad v. Mazhar Ali Khan (PLD 1981 Kar. 76), may be cited with advantage.

15. For the foregoing reasons the appeal against the order dated 3-3-1990 being barred by time is dismissed in limine. Two months' time is, however, allowed to appellant to vacate the demised premises. Consequently C.M.A. No.33 of 1991 is also dismissed. H.B.T./M-1378/K Appeal dismissed.