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Second Appeals Nos. 415 and 416 of 1971, decided on 29th August 1975.

S. 5-Limitation-Delay, condonation of-Delay in filing applica tion for grant of copy due to mistaken advice of counsel-Counsel admitting fact-Delay condoned-Cases remanded.

S. M. Sadiq v. Settlement Commissioner and others 1974 S C M R 149, ref.

Nazar Muhammad and others v. Mst. Shahzada Begun and others P L D 1974 S C 24 ref.

Abdul Majid Khan for Naimuddin for Appellants.

M. M. Mahmoodi for Respondent No. 1.

Date of hearing : 29th August 1975.

There are two appeals filed against one order passed by the learned, District Judge, Hyderabad. One of the appeals is against the order refusing to condone the delay under section 5 of the Limitation Act and the other is against the order of dismissal of the appeal. In fact, one appeal would have been sufficient. These have arisen in the following circumstances and will be disposed of by a common judgment.

2. House No. F. 67/1283 situated at Giddu Road, Hyderabad, was transferred to the appellant under the Settlement Scheme, and the P. T. D. was issued on 1-6-1962.

3. The appellant filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance against the present respondents on the ground of default, personal requirement and subletting. The applica tion ultimately came to be dismissed by the Rent Controller. The appellant then filed an appeal in the Court of the District Judge, Hyderabad.

4. The application had been dismissed by the learned Rent Controller, Hyderabad on 28-11-1970, and the appellant made the application for the grant of copy of the order on 2-1-1971. It is an admitted position that the winter vacations had commenced in the District Court of Hyderabad from 24th December 1970 ending on 1-1-1971. The copy of the order was supplied to the appellant on 8-1-1971 and the appeal was preferred the same day.

5. The learned District Judge dismissed the appeal only on the ground of limitation. He was of the opinion that once the time had started running, it would not stop on the 23rd of December 1970 only because the winter vacations had started. Thirty days prescribed for the appeal came to an end on 27-12-1970. This view taken by the learned District Judge is not disputed by Mr. Abdul Majid Khan, learned counsel for the appellant. The only contention advanced by him is that the application under section 5 of the Limitation Act should have been considered by the learned District Judge as it was clearly mentioned therein that the delay in the filing of the application for grant of copy took place simply because of the mistaken advice of the counsel appearing for the appellant. It was Mr. Aqil, who was appearing for the appellant in the District Court, and he had candidly admitted that the delay in the filing of the application for the grant of copy had taken place on his mistaken advice.

6. Mr. Abdul Majid Khan, learned counsel for the appellant, sought support for the proposition from two cases of the Supreme Court, namely, Nazar Muhammad and others v. Mst. Shahzada Begum and others (P L D 1974 S C 24) and S. M. Sadiq v. Settlement Commissioner and others (1974 S C M R 149).

7. The facts of the latter case are almost identical to the one in question. Mr. M. M. Mahmoodi, who appeared on behalf of the respondent No. 1 did not make any efforts to distinguish the principle laid down there, so far as the facts of this particular case are concerned, and very rightly.

8. Mr. Imam Ali G. Kazi, who is also appearing on behalf of the respondent No. 1 had appeared in the morning during the argument and took time for his address later on. However, as Mr. Mahmoodi has turned up and has argued on behalf of the respondent No. 1, it is not necessary to wait for him any more. The respondent No. 2 has not chosen to turn up, though the notice had been despatched to him.

9. In the result, the impugned orders are set aside the appeals are allowed and the cases are remanded to the District Judge, Hyderabad for g disposal on merit. There will be no orders as to costs.

S. A. H. Appeals allowed.

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