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Civil Miscellaneous Appeal in First Rent Appeal No. 981 of 1980, decided on 11th January, 1981.

---Ss. 19 & 21-Civil Procedure Code (V of 1908), O. IX, rule 13 and Limitation Act (IX of 1908), S. 5-Appeal time-barred-Application for setting aside ex parte eviction order pending before Rent Con troller-Question of admission of appeal deferred till decision of application.

llyas Ahmad for Appellant.

This appeal has been filed against an order passed by the Rent Con troller dated 19th September, 1978 and seems to be beyond the period of limitation computed from the date of the order. The Office has, therefore, raised an objection on the ground of limitation making a reference to the judgment of a learned Single Judge of this Court in F.R.A. No. 168 of 1980 to the effect that section 5 of the Limitation Act is not applicable to appeals under the Sind Rented Premises Ordinance.

The contention of the appellant in this appeal, however, is that the learned Controller passed the impugned order without jurisdiction, inas much as, no service was effected on appellant No. 1 and service -against appellant No. 2 was good in violation of the mandatory provisions of law. It ha been- pointed out to me that in view of these circumstances an application under Order IX, rule 13, C. P. C. has been submitted by the two appellants on 3rd December, 1980 before the Rent Controller which is pending for decision, In similar circumstances in F:R.A. No. 3 of 1981 have taken the view that in such a situation it will be more appropriate to await the final decision of an application for setting aside the ex part order by the Controller on the ground of want of proper service. Accord ingly in this case also it - will be proper to take up the question of ad mission of this appeal after the application for setting aside is disposed of by the Rent Controller. The records have been summoned by this Court from the Rent Controller which will be sent back immediately. The Rent Controller shall dispose of the application as soon as possible.

However, learned counsel for appellants states that in the meantime stay orders be issued in the execution proceedings which are already pending before the Controller. I would accordingly order notice of C.M.A. 3533/80 for an early date and in the meantime order stay of execution.

The appeal will be set down for Katcha Peshi after the disposal of the application by the Rent Controller.

M. Y. H. Order accordingly,

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