ANEES IQBAL --- Appellant (PLP)

This appeal has been filed challenging the order passed by the 1st Senior Civil Judge/Rent Controller, Karachi (East) in Rent Case No.432 of 1989 whereby the present appellant was directed to be ejected. Briefly the facts as disclosed in the judgment are that the present respondent had filed the ejectment application through her husband and Attorney Ahmed Yousuf Ali Rizvi, Advocate against the present appellant on the ground of default in payment of rent and requirement for personal bona ride use. The case of the respondent is that she is landlady of Bungalow No.125 Banglorc Town, Karachi, while the Opponent/Appellant is her tenant in respect of ground floor of the said Bungalow at a monthly rent of Rs.3,

000. An amount of Rs.16,500 was paid by way of security deposit by the appellant. The appellant is said to have defaulted in payment of rent since 16-2-1989. The respondcnt/landiady also contended that she is in occupation of only two bed rooms for married couples of his two sorts; and that such accommodation being insufficient, she requires the ground floor also for her personal use. The appellant contested the ejectment application and denied that he had committed any default in payment of rent. The tenant/appellant also contended that the landlady did not require the said premises for her personal use. On these pleadings of the parties following points for determination were settled:

(i) Whether the Opponent has committed default in payment of rent w.e.f. February 1989 till 23-9-1989? (ii) Whether the applicant requires the premises in question for her personal bona ride use in good faith? (iii) What should the order be? The applicant's attorney filed his affidavit-in-evidence, who was duly cross -examined by the appellant's counsel and then he closed his side. He has filed three tenancy agreements, rent receipts, power of attorney and doctor's prescriptions. On the other hand, the appellant also riled his affidavit-in-evidence but he failed to submit himself for cross-examination and, therefore, his side was closed on 1-9-1990 rendering his affidavit-in-evidence ineffective. The matter was ultimately adjourned to 12-9-1990 for announcement of judgment on which date the impugned order was passed. Being aggrieved, the appellant has riled this appeal. At the very outset learned counsel for the respondent has raised the plea that the appeal is time-barred and is liable to be dismissed on this ground alone, apart from merits. I have heard the learned counsel for the parties on the preliminary point of limitation. The learned counsel for the appellant has submitted that the impugned order was passed on 12-9-1990 while the certified copy of the order attached to the present memo. of appeal shows that the same was applied for on 14-10-1990 and the copy thereof was supplied to the I appellant on 27-11-1990 while the present appeal was presented on 1-12-1990. He has contended that the very application for grant of certified copy was 1 8 made 32 days after the announcement of the order whereas the period of!' limitation as provided in section 21. of the Sindh Rented Premises Ordinance, 1979 for riling of the appeal is only 30 days. Ile has submitted that this delay has gone unexplained. From. this the learned counsel submits that the appeal is liable to be dismissed on this scope. As against this the learned counsel for the appellant has submitted that the present case has a very chequered history. He has referred to the orders passed by the learned Judges of this Court (A.R. Agha, J. and S. Haider Ali Pirzada, J). on 11- 12-1990 and 23-12-1990. The - learned counsel for the appellant has urged that these two orders show that there was some discrepancy in case diaries of the rent case itself. He has pointed out that the original R&P was sent for and was received in this Court but subsequently during an enquiry with regard to discrepancies in the case diaries, the R&P was misplaced and was accordingly reconstituted under the orders of this Court. However, the photostat copies of the certified copies of the case diaries of the Lower Court arc on record. These photostat copies show that on 1-9-1990 the case was adjourned to 8-9-1.990 for same purpose while the case diary of 8-9-1990 shows that Advocate for the applicant was present while the opponent was absent and the matter was adjourned to 12-9-1990 for judgment. The learned counsel for the appellant has referred to his contentions in the memo. of appeal wherein he has contended as under:-- "That the opponent/appellant riled his affidavit-in-evidence but he could not be available for cross-examination on account of his secret official assignments and illness and his side was closed on 1-9-1990 by ordering the affidavit ineffective and the case was p~t off to 12-9-1990 for judgment. The opponent/appellant's counsel served him with a notice dated 10-9-1990 which was received by the opponent on 13-9-1990 during his illness on bed as he was lying ill since 28-8-1990 and remained sick till 15-9-1990 and on 24-9-1990 he moved an application for opening his side but no order on his application was passed and he was informed that the case is kept for judgment as no judgment was announced as yet on account of election work." A perusal of the above contentions of the appellant will show that apart from the case diary, very admission of the appellant shows that his side was closed on 1-9-1990 and the case was put off to 12-9-1990 for judgment. However, during the course of arguments he was called upon to show the copy of his application said to have been moved by him on 24-9-1990 but he could not produce the same from his rile. The reconstituted R & P does not contain this application. Accordingly, it can hardly be believed that such an application was moved merely on oral assertion of the appellant. As regards re constitution of the rile the record shows that two notices were issued to the appellant by the trial Court, on 22-10-1991 and 28-10-1991, which were received by his father and yet he did not participate in the re-constitution of the file. In these circumstances it can safely be assumed that the appellant had. The knowledge that the matter was adjourned to 12-9-1990 for pronouncement of judgment. The learned counsel for the appellant has submitted that the side of the appellant was closed behind his back and the matter was adjourned for pronouncement of judgment in his absence and, therefore, this judgment is without notice to the appellant and thus is not a vaild judgment and is liable to be struck off. He has placed reliance on the case of Abdul Sattar v. Ali Muhammad (1985 CLC 25). This case is of no help to the appellant as in this case the point involved was that bar of limitation for riling of an appeal would not be applicable where cx parte order was passed by the trial Court without notice. The second case relied upon by the learned counsel is that of Mst. Fatima Bibi v. Noor Muhammad Shah PLD 1951 Lah.

147. In this- case a Full Bench of the Lahore High Court had observed that in case when the judgment was reserved by the Court after hearing the arguments_ but the result was never communicated to both the parties or their counsel, there were sufficient grounds for condonation of delay. The third case cited by the learned counsel is that of Nisar Ahmed v. P.Q. Punjab Labour Court PLD 1976 Lah. 1162. In this case it was held that oral announcement of decision made by Labour Court or subsequent written order not publicly announced was not a valid and effective judgment in the eyes of law. Lastly the learned counsel has relied upon on the case of Abdul Mannan v. Lal Hussain PLD 1955 Dacca

9. In this case a Division Bench of the Dacca High Court has held that out of two contradictory judgments signed and dated, the one actually announced in Court is a valid and good judgment. After going through all the above case-law, I am of the view that none of these judgments apply to the present case as in 'the present case, the appellant was initially served with the notice of the rent case and he had been contesting the same but subsequently he chose to remain absent. It may be observed that there are certain duties and obligations cast upon the parties to the proceedings and the lawyers representing them. Once a party is intimated of a proceeding taken against him, then a duty is cast upon the party to keep himself abreast of various stages and proceedings taken in the Court. In the 'present case the appellant had been served with the notice who contested the matter and in these circumstances it was his duty to have kept himself informed of various stages, actions taken and orders passed in the case. It may further be observed that as cited above, the appellant has himself admitted in the memo. of appeal that his side was closed oil 1-9-1990; and that he was served with such notice dated 10-9-1990 sent to him by his counsel which he received on 13-9-1990 during his illness and yet he made an application for grant of copies on 14-10-1990. In the above view of the matter I am inclined to hold the present C appeal to be barred by limitation. Consequently the appeal is dismissed with no orders as to costs. H.B.T./A-1297/K Appeal dismissed.