1999 PLP 1287 (YLR)

A short question as to whether Article 181 of the Limitation Act, 1908 (hereinafter referred to as the Act, 1908) is attracted in filing of an execution application on the basis of an order passed by the Rent Controller evicting the tenant/opponent is involved in this appeal.

2. Admittedly, the respondent who is landlord of the tenement in question filed an eviction application under section 15 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) against the appellant/tenant on the ground of personal requirement and default. This proceedings were contested by the appellant/tenant and on 30‑4‑1990, learned IIIrd Rent Controller, Karachi Central directed eviction of the appellant/tenant. No appeal was filed and, therefore, the order of Rent Controller attained finality. Subsequently, on 19‑2‑1998 an execution application under section 22 of the Ordinance, 1979 was filed before the IIIrd Rent Controller, Karachi Central, which was numbered as Execution Application No.10 of 1998. Notice was issued to the appellant/ tenant who appeared and raised the plea of limitation that since the execution application has been filed after a delay of seven years, nine months and 19 days, it was barred in view of Article 181 of the Act, 1908. This plea was dismissed by the learned Rent Controller vide impugned order who also directed issuance of writ of possession. Against this order, the instant appeal has been directed. Pre‑admission notice was issued to the respondent/landlord and in pursuance of the same, Mr. Zubair Qureshi, Advocate has appeared.

3. I have heard Mirza Waqar Hussain, Advocate for the appellant and Mr. M. Zubair. Qureshi, Advocate for the respondent. It was contended by Mirza Waqar Hussain that provision of Article 181 of the Act, 1908 is not ousted by any provision of the Ordinance, 1979 and since there is an undisputed and inconsistent delay of seven years, nine months and 19 days, the execution application is hit by the limitation as provided in Article

181. He has placed reliance on the following cases: (i) Gulzar Ali and another v. Abid Essa Bhai and 2 others (1992 ALD 171); (ii) Abdul Jabbar v'. Shamim Akhtar and another (1995 MLD 1104); and (iii) Mehmood Elahi Farooqui v. Messrs United Bank Limited (PLD 1998 Karachi 133).

4. It was argued by Mr. Zubair Qureshi that the provisions of the Act, 1908 are not available in the rent proceedings by virtue of section 29 thereof. He has placed reliance on Muhammad Ibrahim v. Abdul Haseeb Khan (1982 CLC 2025) and Syed Muhammad v. Mazhar Ali Khan (PLD 1981 Karachi 76). The learned counsel has also referred to the case of Abdul Karim v. Haji Ahmed and 6 others (PLD 1986 Karachi 206). On merits, it was argued by Mr. Zubair Qureshi that the reasons for not filing the execution application within time was considered by the Rent Controller and such acts of the appel lant/tenant amount to an acknowledgement as provided under section 19 of the Act, 1908.

5. In the case of Gulzar Ali (supra), it was held by a teamed Single Judge of this Court, Salahuddin Mirza, J. (as he then was) that an application seeking permission to cross‑examine witnesses is to be filed within 30 days as provided under Article 164 of the Act, 1908 and that Article 181 thereof was not applicable in the circumstances of the case. Since only head‑notes have been printed in the said case, the case file of First Regular Appeal No. 130 of 1998 was summoned and perused by me.

6. In the case of Abdul Jabbar (supra), it was held by the then Chief Justice of Balochistan High Court, Munawwar Ahmed Mirza, J. (as his Lordship then was) that an application from an ousted tenant seeking restoration of possession as provided under section 13(5) of West Pakistan Urban Rent Restriction Ordinance, 1959 is to be filed within three years from the day he had delivered possession to the landlord for raising construction. In that case, possession was obtained by the landlord for the purpose of reconstruction which was not constructed within time and the tenant filed an application seeking restoration of possession of the tenement in question. It is relevant to quote observation of Justice Munawwar Ahmed Mirza in that case (at page 1107) where it was observed. "Besides the proceedings initiated by appellant even if do not contravene specific provision of limitation nevertheless same suffer from laches. " Recently, in the case of Mehmood Elahi Farooqui (supra), this Court has held that to file an execution application, the period required is three years as provided under Article 181 of the Act, 1908. In that case tenant was granted six months time to vacate the premises which period expired on 30th May, 1992 and the Execution Application was filed on 16‑1‑1995. It was observed that the landlord could have filed such Execution Application by 30th May, 1995.

7. The case of Abdul Karim (supra) is of no help to the respondent as in that case, it was held by this Court that the provisions of Order XXI, C.P.C. are not available during execution proceedings before the Rent Controller in view of section 22 of the Ordinance, 1979. In the case of Syed Muhammad and Muhammad Ibrahim (supra), 'Muhammad was held by this Court that provision of section 5 of the Act, 1908 is not attracted in an appeal filed under section 21 of the Ordinance, 1979. This view was upheld by the Hon'ble Supreme Court in the case of Abdul Ghaffar and others v. Mst. Mumtaz (PLD 1982 SC 88). In that case reference was also made to sections 3 and 29 of the Act, 1908 and its cumulative effect was held to be as follows:‑‑ "The second contention is also without any force. Subsection (2) of section 29 of the Limitation Act relates to special and local laws. The Sindl9 Ordinance, it has been admitted, is such a law. We have already held that the period of limitation for filing the appeal under this law (thirty days) is different from the period prescribed by Article 156 of the Limitation Act; therefore, as provided in section 29(2), the provisions of section 3 thereof would apply to such a situation, but subject to the exclusions contained in section 29 itself. When section 3 of the Limitation Act is applied, the provisions of sections 4 to 25 of that Act would get (normally) attracted by virtue of section

3. But if it is a case covered by section 29, the provisions of sections 4 to 25 would apply only to the extent that any of them have not been excluded by the combined reading of clauses (a) and (b) of section 29(2). And, it is not denied that the said two clauses when read together in the context of Sindh Rented Premises Ordinance, 1979 do not exclude section 5 of the Limitation Act. Therefore, the learned Single Judge of the High Court has rightly refused to apply the same in this case."

8. There is no time period prescribed in the Ordinance, 1979, for filing an execution application. This brings us to the question as to when and up to what period a successful applicant is entitled in Law to file such application. It will be seen that prior to introduction of Second Proviso to sec tion 115, C.P.C. vide Act VI of 1992 (PLD 1992 Central Statutes 226), there was no period fixed for filing civil revision under section 115, C.P.C. It was through the said amendment that a period of 90 days was provided for filing a civil revision. In absence of any period prescribing limitation, the superior Courts in Pakistan had adopted some times a period of 3 years as provided in Article 181 of the Act, 1908 and some times, a period of 90 days. There is a long course of judgments on this point. In Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (PLD 1964 SC 97), it was held by the Hon'ble Supreme Court (at page 102) that the only Article which could be made applicable for filing civil revision application was the residuary Article 181 of the Act, 1908. This view was followed by a learned Single Judge of this Court, Nasir Aslam Zahid, J. (as his Lordship then was) in the case of Muhammad Fakhar v. The Telephone Employees Cooperative House Building Society Ltd. (1988 CLC 1353) where a revision application filed after more than four years was dismissed on the ground of laches. In that case reference was also made to the case of Mst. Majidan Khanam v. District Judge, Vehari (1984 CLC 3270). (See also Ghulam Akhtar v. Sardar and 5 others (PLD 1987 Lahore 615). However, in the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678 at 698), it was held, inter alia, that the revision petition filed beyond the unprescribed limitation of 90 days could also be entertained if the Court was satisfied by the reasons for the delay. The objection on the point of limitation was overruled by the Hon'ble Supreme Court on the ground that High Court, under its rule making powers, has not prescribed limitation for revision and that the explanation offered was sufficient. The Lahore High Court in the case of Lahore Municipal Corporation v. Syed Nazir Hussain Shah and others (PLD 1982 Lahore 461 at 464) dismissed the civil revision application as the same was not filed within reasonable period and no explanation was forwarded for such delay. A learned Single Judge of Peshawar High Court in Muhammad Ayub and 9 others v. Zarif Khan and 2 others (1988 CLC 33) dismissed the revision petition which was filed after more than 10 months against the finding of the appellate Court. All this shows that despite no period being prescribed for filing civil revision prior to 1992, such revision was not entertained if filed after unreasonable and unexplained delay.

9. Recently, in the case of Khadim Hussain and others v. Fazilan Bibi and others (1997 MLD 411), it was held by Lahore High Court that the period of 90 days was attracted for filing an application for revision and Article 181 of the Act, 1908 was clearly inapplicable. Several case‑law including Muhammad Swaleh (supra) considered where after the learned Single Judge came to the following conclusion:‑‑ ...As against this view, there is a large number of cases holding that Limitation Act made no provision for an application for revision but it was the usual practice of the Courts not to entertain petitions for revision filed beyond 90 days prescribed for filing an appeal to the High Court. In this behalf, cases in Mahant Goswami Krishnadevacand Ramji v. Mahant Kapildeo Ramji AIR 1942 Patna 251, Sampatlal Keshan and others v. Baliprasad and others AIR 1950 Assam 6, Nani Lal De and others v. Tirthalal De and others AIR 1953 Calcutta 513, Sant Ram v. Mt. Amrawati and others AIR 1954 Rajasthan 191, Nannulal v. Radha Kishan AIR 1956 Bhopal 16, Rohtas Industries Ltd. and another v. P.N. Gour, Receiver of Murli Hills and others AIR 1957 Patna 16, Sher Ali alias Sk. Sher Ali v. Sk. Masud and others AIR 1959 Calcutta 457, Gordhansing and others v. Suwalal and Kalyanbux and others AIR 1959 Rajasthan

156. The practice of almost all the High Courts was to entertain applications in revision only if they are filed within three months of the date of the order sought to be revised. In the case of Manager, Jammu and Kashmir State Property in Pakistan v. Khudayar PLD 1975 SC 687 (at page 698), it was held that no limitation was prescribed by Limitation Act, 1908 or by any rule in the High Court Rules and orders (Lahore) for filing revision petition under section 115, Civil Procedure Code. Therefore, the High Court could entertain petitions even beyond the formal unprescribed period of ninety days, if satisfied as regards delay in filing the petition. It was expressly ruled that Limitation Act provided no rule of limitation for filing of revision petition in the High Court. In Rehmat Ali v. Allah Ditta and others (PLD 1989 Lahore 64), Muhammad Qayyum, J. also took the same view. In Musharaf Sultana v. Fazal Hussain (1992 CLC 1394) (Lahore), I also subscribed to the same view. Rule deducible from the above case -law clearly favoured the proposition that no period of limitation was prescribed in the Limitation Act for exercise 'of its power of revision by the High Court. Nonetheless, ninety days period as a rule of practice was insisted upon for observance by the High Court. Any delay beyond this period was required to be explained by the party invoking the revisional jurisdiction of the Court .... "

10. In the case of M/s Progressive Engineering Associates v. Pakistan Steel Mills Corporation Ltd. (1997 CLC 236), I have taken the view that in absence of any time prescribed for filing an application under section 20 of the Arbitration Act, 1940 it would be Article 181 of the Act, 1908 which is applicable. Reference was made to a decision of a Division Bench of this Court in M/s Islamic Estates and Builders Ltd. v. Mirza Saeeduddin and another (1986 CLC 369). All this discussion indicates that the Courts have applied period of limitation as provided in the Limitation Act for regulating its proceedings even where the legislators have not prescribed any period. It is being done in order to discipline the litigants and to disentitle a petitioner who remains inactive for a longer period and who is found guilty of laches. In such circumstances, it cannot be said that a successful landlord after obtaining an order of eviction against his tenant can file execution application under section 22 of the Ordinance, 1979 at any time according to his sweet‑will.

11. As a result of the above discussion, I do not see any reason to take a different view as taken by this Court in the case of Mehmood Elahi Faruqui (PLD 1998 Karachi 133). The learned IIIrd Rent Controller, Karachi Central had failed to consider the aforesaid law and has wrongly dismissed the objections of the appellant/tenant. In these circumstances, the impugned order is liable to be set aside. Ordered accordingly. However, the matter does not end here as the respondent has raised the plea of acknowledgement as provided under section 19 of the Act, 1908 which is a mixed question of law and fact. Therefore, while accepting this appeal and setting aside the impugned order, I remand the case to the IIIrd Rent Controller, Karachi Central to determine the question of acknowledgement as well as objections of the appellant and to expeditiously dispose of the execution application preferably within three months after giving the parties opportunity to lead evidence if they so choose. Consequently, C.M.A. No.1265 of 1998 has become infructuous and stands disposed of accordingly. Case remanded. Q.M.H./M.A.K./M‑449/K