Find a Lawyer

--- S. 15 (1) and Limitation Act (IX of 1908), S. 5-Delay in filing appeal- Condonation of-Copy of order appealed against ready on 30th August-Appellant supplying stamps on 2nd October, and filing appeal on 13th October without any application under S. 5, Limitation Act-Held, Court cannot suo motu condone delay.

-- S. 15 (1) read with Limitation Act (IX of 1908), S. 5 and Civil Procedure Code (V of 1.908), O. XL1, r. 19-Extension of limitation for or re-admission of appeal - Sufficient cause for appellant's counsel contending default in appearance due to bona fide mistake on part of appellant's counsel in noting wrong date of hearing in diary-Held, negligence of counsel not sufficient cause to extend period of limitation or for re-admission of appeal.

Sawab Khan v. Dr. Hamid Khan P L D 1968 Lah. 1228 ref.

-- O. XLI, r. 19 read with Limitation Act (IX of 1908), Arts. 168 & 181-Application for restoration of appeal-Terminus a quo of period of limitation for - Application for restoration of appeal filed after lapse of thirty days from date of dismissal - Held, time runs from date of dismissal and application time-barred-Held further, Art. 168 applicable to such application and not residuary Art. 181.

S. Zahir Hussain Chishti for Appellant.

Syed Hamid Ali for Respondent.

Date of hearing : 25th August, 1982.

This second appeal under section 15 (4) of the Sind Urban Rent Restriction Ordinance, 1959 challenges order of the VIIth Additional District Judge, Karachi dated 9th December, 1980 dismissing the first appeal for default and non-prosecution and also his order dated 11th May, 1981 whereunder he dismissed application of the appellant for restoration of 1st appeal. The 1st appeal was filed by the appellant against the order dated 5th August, 1975 passed by the IVth Rent Controller, Karachi in Rent Case No. 733/76, ordering the ejectment of the appellant within two months of issuance of the order.

The facts of the case are that the respondent landlord leased out premises consisting of eastern portion of house on Plot No. 1/66-A (Commercial Area) Drigh Colony, Karachi to the appellant on monthly rent of Rs. 355 for a period of 11 months by. agreement of lease dated 2nd January, 1975. On expiry of the period of lease the appellant did not vacate the premises and continued to occupy the premises against the wishes of the landlord. It was the case of the respondent that the appel lant committed default in payment of rent which was payable in advance on 5th of each calendar month. It was also his case that the appellant had carried out unauthorised additions and alterations to the demised premises without his permission. The respondent therefore, filed applica tion for ejectment of the appellant under section 13 (2) of the West Pakistan Rent Restriction Ordinance, 1959. Besides the above-mentioned grounds he had also taken the ground that he required the premises for his bona fide personal use. He presented the application before the Rent Controller on 23rd November. 1976 and the appellant in his written state ment denied all the allegations and the grounds given by the respondent for his ejectment. He raised the plea that the respondent bad been insisting on enhancement of rent which he had refused and; therefore the respondent had filed application for his ejectment.

The Rent Controller on the pleadings of the parties framed the follow ing issues :-

(1) Whether the opponent is wilful defaulter, if so since when

(2) Whether the applicant requires the disputed premises for his personal bona fide use

(3) Whether the opponent has made additions and. Alterations and has. materially impaired the value and utility of the disputed premises

(4) What should the decree be

He gave the finding in affirmative with regard to Issue No. 1 but decided Issues Nos. 2 and 3 against the respondent and directed that the appellant to hand over the possession of the premises to the respondent within 2 months. Against this order of the learned Rent Controller dated 5th August, 1979 the appellant filed his first appeal before the District Court acid the respondent against whom the Controller had given findings on issues Nos. 2 and 3 filed cross-objections.

The appeal and the cross-objections came up for hearing before the V1Ith Additional District Judge, Karachi since 13th October, 1979 but could not be disposed of, due to frequent adjournments. Eventually on 9^th December, 1982 when the appeal was called for bearing, neither the appellant nor his Advocate were present although the counsel for the respondent was present in the Court since 8-30 a. m. At about 12-30 p. m. the appeal was called for hearing and since there was no intimation or prayer for adjournment by the appellant or his counsel, the appeal was dismissed for default. Thereafter, an application under Order XLI, rule 19, C. P. C. read with section 151, C. P. C. was filed by the appellant for setting aside the order of dismissal on 21st February, 1981. The application for restoration too, however, was dismissed by the learned VIIth Additional Distrct Judge, Karachi on 11th May, 1981 and hence ,.he instant 2nd appeal.

Mr.. S. Zabir Husain Cbishti, the learned counsel for the appellant has raised the following contentions:-

(1) That the appellant was not given proper opportunity for adducing evidence by the Controller as his application for adjournment was disallowed and right to adduce evidence closed. His further application for allowing him to adduce evidence was dismissed.

(2) That the appeal is not time-barred since the time is to be calculated from the date of knowledge of the dismissal.

(3) That the application made on behalf of the respondent about appeal being time-barred was based on incorrect factual position as notice had not been given by the copying agency.

(4) That the appeal could not have been dismissed since two mis cellaneous applications were pending disposal on the day that the main appeal was dismissed.

(5) That since the default in appearance was due to bona fide mistake on the part of the counsel of the appellant in noting in his diary the wrong date of bearing, the appeal should not have been dismissed.

With regard to contention No. 1, it is apparent from a perusal of the record of the proceedings before the Controller that the appellant was given enough opportunity for producing his evidence. The applicant respondent closed his side on 2nd December, 1978 and the proceedings were adjourned to 7th January, 1979 for the evidence of the opponent appellant. On that date, however, the proceedings, were adjourned at his request to 28th January, 1979 when again he failed to give evidence and to attend the Court and the proceedings were adjourned at request on his behalf to 13th February, 1979, when, again he faded to give evi dence and requested for, adjournment and a last chance was given and the proceedings adjourned to 7th March, 1979. That being the last chance on his failure to adduce evidence, his side was closed and the case adjourn ed for arguments to 26th March, 1979. On that date, application for re-opening of evidence was made on the ground that the appellant was sick. The case was adjourned to 15th April, and then to 12th May, 1979 and. again an application was made for adjournment on the ground of illness of the counsel as well, as the appellant. It is apparent from perusal of the diary of the proceedings that due to adjournments on one ground or the other, at the instance of the appellant, although a medical certificate was produced alongwith application for adjournment on 12th May, 1978, the matter was adjourned, but the learned Controller directed for produc tion of the medical practitioner who had issued the certificate. On 15th May, 1979 medical practitioner was not produced as witness but it is apparent that the learned Controller considered it to be in the interest of justice to provide one more chance to lead evidence and his side was opened on 15th May, 1979 and the case fixed for his side on 20th May, 1979. Ultimately the matter was adjourned to 24th May, 1979, for arguments and on that date again the counsel for the applicant moved one more application for re-opening the opponent's side, which was fixed for hearing on 25th July, 1979. The application was rejected on the. ground that the opponent-appellant was adopting delaying tactics and finally the arguments were heard on 1st August, 1979. The diary of the proceedings before the Controller has been examined at length and it is apparent that no weight can be given to the contention that he appellant was not given a fair chance of being heard.

Contentions Nos. 2, 3 and 4 are being considered together in so far as the same were raised against the dismissal of the first appeal on the ground of non-appearance and non-prosecution. With regard to the contention that there were two miscellaneous applications also pending and, therefore, the main appeal should not have been dismissed, it is apparent from a perusal of the diary of the Additional District Judge that the matter had been adjourned to 14th October, 1980 when the appellant and his counsel were absent and the impugned order dismissing the appeal expressly mentioned that the appellant and his Advocate were absent on the date. There is nothing in the case diary to show that the matter had been adjourned only for hearing applications and not the main appeal.

With regard to the contention taken about application under section 51 of the Limitation Act, 1908, a perusal of the record shows that the copy of the order was ready on 30tb August, 1979 and stamps were supplied on 2nd October, 1979 but the appeal was filed on 13th October, 1979 without any application under section 5 of the Limitation Act. It is rightly contended by Mr. Syed Hamid Ali, the learned counsel for the respondent, that the Court could not have condoned the delay suo motu.

With regard to the contention that the appeal. should not have been dismissed for default due to mistake on the part of the counsel, in nothing down the date of bearing; the counsel for the respondent has relied on the Lahore High Court decision on Sawab Khan, v. Dr. Hamid Khan (P L D 1968 Lab. 1228) in that decision it was observed as under :-

"The negligence of the appellant's counsel to notice the case in the list will not be sufficient to extend the period of. limitation or be treated sufficient cause for re-admission of the appeal."

With regard to the contention that time runs, from the date of know ledge of dismissal of ;he appeal, the learned counsel has relied on the supreme Court decision in Haji Giltutam Sarwar v. Daya Ram (1975 S C MI R 199), in which it was held that time runs not from date of knowledge of dismissal of appeal but from date of dismissal, and therefore, it was further held that the application for restoration of the appeal itself was barred by limitation as it had been filed after the lapse of 30 days period provided by the Article 16& of the Limitation Act, 1908.

It has been argued on behalf of the appellant that Article 168 of Limitation Act, 1908 was not applicable and the residuary Article 181 is applicable. -On this point there is however the decision of the Supreme Court in Lal Dino and others v. The Deputy Commissioner and others (1972 S C M R 201), wherein, it was held that in case of restoration of appeal dismissed for default and non-prosecution Article 168 Limitation Act, 1908, is applicable and not residuary Article 181.

Reverting to the merits of the case the learned Controller, as is obvious from perusal of the record of proceedings before him decided the issue in regard to default in payment of rent after considering the evidence on record. It is also clear from perusal of the agreement of tenancy that rent had to be paid before the 5th of each month in advance and in view of the aforesaid agreement in writing proviso of section 5 (2) of the Sind Rented Premises Ordinance, 1979, makes it clear that nothing in that section shall affect any agreement between landlord and tenant immediately before coming into force of the Ordinance. Section 10 of the Ordinance provides that rent shall, in the absence of any date fixed in mutual agreement between landlord and tenant not be paid later than 10th of each month it is due. However ' in the instant case, since, there is a mutual agreement between landlord and tenant for payment of rent in advance before 5th of every calendar month, the same be effective as provided by the section.

The learned Controller has discussed in detail from the evidence on record which includes the letters and cheques issued by the appellant that he never paid or tendered rent on or before the 5th of the month as stipulated in the rent agreement. The finding of the learned Controller therefore, was based on the evidence on record and no exception could be taken to it.

In the circumstances stated I find no weight in this appeal which is dismissed. There shall be. no order as to cost. The appellant is hereby directed to hand over vacant possession of the premises to the respondent landlord within 2 months of the date'of this judgment.

K. M. A. Appeal dismissed:

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.