1982 PLP 1558 (CLC)
KHALID AMIR‑Petitioner. Versus HAVEEZULLAH KHAN‑Respondent
| Citation | 1982 PLP 1558 (CLC) |
| Forum / Court | Lahore |
| Bench Members | Khurshid Ahmad, J |
| Parties | KHALID AMIR‑Petitioner. Versus HAVEEZULLAH KHAN‑Respondent |
Q1: What are the key laws and sections cited in 1982 PLP 1558 (CLC)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1982 PLP 1558 (CLC)?
The case was heard and decided by the Lahore bench comprising: Khurshid Ahmad, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1982 PLP 1558 (CLC) (KHALID AMIR‑Petitioner. Versus HAVEEZULLAH KHAN‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Khurshid Ali for Appellant,
- A. S. Chughtai for Respondent.
- Date of hearing : 29th October, 1981.
Headnotes / Summary
filed an application under section 151, C. P. C. praying that in view of the findings of the Controller that the relationship of landlord and tenant exists between the parties, an order of ejectment be passed against the appellant without taking further proceeding in the case. This application was heard by the Controller on 25th November, 1975 and on the same day without holding any further enquiry in the case and without even holding that default in payment of rent is proved he passed the order of ejectment against the appellant relying on the case of Nisar Ahmed v. Nazar Mohammad (P L D 1974 Lah. 481). The appellant then filed appeal against the above order of Rent Controller which was dismissed and the decision of Rent Control ler was confirmed by the Appellate Authority. Both the Courts below in ordering ejectment of appellant referred to Nisar Ahmad's case. In Nisar Ahmad's case relied upon by the Courts below it was found by the learned Single Judge that the appellant had admitted that he never paid a single peny towards rent to the landlord as he did not accept him as his landlord and therefore it was held that in such circum stances the sending back of the case to the Rent Controller for passing a tentative rent order and determination of plea of default was an exercise in futility and therefore order of ejectment passed by the lower Court against the tenant was maintained. Mr. S. H. Rizvi, the learned counsel for the respondent contended before me that in view of the averment contained in paragraph 3 of the written statement filed on behalf of the appellant it was quite unnecessary in this case also to hold any further enquiry with regard to the plea of default as the appellant himself admitted that after May, 1973 no rent was paid or tendered by him to the respon dent in view of the alleged agreement of sale which he failed to prove. The learned counsel accordingly contended that the rule in Nisar Ahmad's case was fully attracted in this case also. To re‑enforce his contention Mr. Rizvi also referred to the cases of Malik Chiragh Din v. Shaikh Rafiuddin (1980 Law Notes S.C 385), Manzoor Ahmed v. Fatima Bibi (1980 S C M R 756), Amanullah Khan v. Chottey Khan (1978 S C M .R 14) and Abdul Rashid v. Mohammad Akhtar (1980 C L C 1141), 1 will here first of all refer to Amanullah Khan's case where the Supreme Court noticed the divergence of between the learned Judges of the High Court on the point that in cases where the tenant denies existence of relationship of landlord and tenant between the parties which is found to exist by the Rent Controller, should straight away pass order of eviction in such cases against the tenant or hold further enquiry into the allegation of default against him. In this connection cases of Mohammad Hussain v. Mohammad Bashir (P L D 1974 Lah. 44), Nisar Ahmed v. Nazar Mohammad (P L D 1974 Lah. 489), and Noorud din v. Muhammad Qasim (P L D 1976 Kar. 921), were referred by the Supreme Court in the judgment but that case was decided on its own fact without resolving the above conflicts' of opinion. In Manzoor Ahmad's case the tenant was found to be an admitted defaulter in payment of rent and therefore, it was not considered a fit case by the Court for grant of leave to appeal against the order of eviction passed straight away after finding the relationship of landlord and tenant between the parties existing. Similarly in. the case of Mohammad Yousuf it was found that the petitioner tenant had not made any specific and pointed denial of the default alleged against him and made basis of eviction, and Limitation Act (IX of 1908)‑ ‑‑SS. 5 & 14‑Limitation‑Time spent in prosecuting a review application, held, can be reckoned for condonation of delay in filing an appeal‑Such fact not considered by appellate Court while deciding appeal‑Case remanded to appellate Court for fresh deci sion after taking into consideration such fact.‑[Review]. Raza Ansari v. Maula Bakhsh P L D 1979 Kar. 568 ; Ghulam Hussain v. Kanwar, Ashiq Ali Khan P L D 1980 S C 198 and Shah Muhammad v. Ghulam etc. P L.D 1970 S C 196, ref.
Judgment & Decree
Raza Ansari v. Maula Bakhsh P L D 1979 Kar. 568 ; Ghulam Hussain v. Kanwar, Ashiq Ali Khan P L D 1980 S C 198 and Shah Muhammad v. Ghulam etc. P L.D 1970 S C 196, ref. Khurshid Ali for Appellant, A. S. Chughtai for Respondent. Date of hearing : 29th October, 1981. The facts may be briefly stated The respondents had filed a suit against the petitioner for the recovery of Rs. 36,000 for the use and occupation of the house in dispute. The respondents obtained an ex parte decree on 22nd December, 1976 but the execution application was filed on 13th February, 1978. According to the petitioner he acquired the knowledge of the exparte decree on 18th March, 1978 when the process in the execution application had been issued. The petitioner made an application under Order IX, rule 13 read with section 151, C. P. C. on 12th April, 1978 for setting aside the exparte decree. In this application without inquiring about the sufficient cause for the petitioner's non‑appearance in the proceedings, the petitioner was called upon to furnish bank guarantee upto 13th May, 1978 for the decretal amount. The trial Court on the request of the petitioner, in the first instance, extended time upto 29th Ma, 1978 but the petitioner did not comply with the directions with the‑ result that the application for setting aside the ex parte decree was dismissed on 29th May, 1978. The petitioner applied for review of the order which was also dismissed on 19th January, 1979. The petitioner filed an appeal in which he challenged the order of furnishing the bank‑guarantee before inquiring about the sufficiency of the cause and also the order passed on review. The learned Additional District Judge, Lahore dismissed the appeal on 3rd July, 1979 which order has been challenged in the present revision. The learned Additional District Judge observed that the order passed in review was not appealable and the appeal filed against the order of dismissal of the application under Order IX, rule 13, C.P.C. had become barred by time.
2. The learned counsel for the petitioner has submitted that the original order of directing the petitioner to furnish the bank‑guarantee without inquiring into the sufficiency of the cause was illegal and reliance has been placed on Raza Ansari v. Maula Bakhsh (P L D 1979 Kar. 568) It was also argued that even if the appeal against the order passed on review was not competent the time spent in prosecuting the review application could be condoned under sections 5 and 14 of the Limitation Act and even the time spent in the disposal of the application under Order IX, rule 13, C.P.C. In support of this proposition reliance has been placed on Ghulam Hussain v. Kanwar Ashiq Ali Khan (P L D 1990 S C 198) and Shah Muhammad v. Ghulam etc. (3).
3. It appears that the case shall have to be remanded back to the Additional District Judge, Lahore for fresh decision as the question of limitation has not been considered keeping in view the fact that the time spent in prosecuting a review application could be reckoned for condonation of delay in filing the appeal in view of the judgments referred to above. The counsel for the petitioner has made C M No. 6518/C of 1980 under section 14 of the condonation of delay in filing the appeal before the lower appellate Court but the application cannot be entertained in this Court as the matter relates to the delay in the filing of the appeal. In case the petitioner had bona fidely prosecuted the remedy in filing the review application the period can be condoned for which the petitioner shall make an application before the lower appellate Court and the same shall be decided in accordance with law. After deciding the question of limitation the lower appellate Court shall decide the question involved on merits. C. M. 6518/C/80 is hereby dismissed with this observation. The learned counsel for the respondent has argued the. merits of the case which could not be decided in this revision as the lower appellate Court has not adverted to the main questions involved in the case. This revision is accepted with no order as to costs. M.Y.M. Petition accepted.