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Civil Petition for Special Leave to Appeal No. K‑267 of 1980, decided on 11th May, 1981.
(On appeal from the order of Sind High Court dated 13th October, 1980 in First Appeal No. 332 of 1980).
---Ss. 15 & 21‑Limitation Act (IX of 1908), S. 5 and Constitution of Pakistan (1973), Art. 185 (3)‑Ejectment‑Petitioner ejected ex parte and his time‑barred appeal dismissed by High Court on ground that provisions of S. 5 of Limitation Act were not applicable to appeal under S. 21 of Ordinance‑Sufficient cause for setting aside ex parte order not made out by petitioner‑Supreme Court dismissing petition for leave to appeal while leaving legal question of application of provision of S. 5 of Limitation Act to rent appeals to be decided in another appropriate case.
Sadiq Ali Khoja and Faizanul Haq, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing : 11th May, 1981.
This is a petition for special leave to appeal from the 1judgment of a learned Single Judge of Sind High Court dated 13‑10‑1980 dismissing petitioner's appeal as barred by time.
The facts briefly stated are that the respondent filed ejectment application against the petitioner on the ground of default in payment of rent from April 1970 onwards. The Rent Controller by an ex parte order dated 7‑11‑1979, directed petitioner' ejectment from the premises and subsequently dismissed an application filed by him for setting aside the ex parte order. Petitioner filed time‑barred appeal in the Sind High Court against both these orders on 21‑4‑1980, and prayed for the condonation of delay under the provisions of section 5 of the Limitation Act on the ground that he had left for India on 7‑9‑1979 and remained in jail custody at Delhi, and after his release, he "Reach ed Pakistan via Lahore on or about 15‑3‑1980 and came to Karachi in miserable condition." His articles were seized at the border and he, therefore, went to Lahore again and he came to know only "a few days ago that; the ex parte order had been passed in his absence".
Learned Single Judge in the High Court did not consider the application for condonation of delay on merits for the reason that, in his view, the provisions of section 5 the Limitation Act are not applicable to an appeal under section 21 of the Sind Rented Premises Ordinance, 1979. Even if the plea raised by the learned counsel for the petitioner is accepted that the view of the learned Single Judge in the High Court on the question of law is erroneous, the case has to be remanded to the High Court for decision on merits of the application whether sufficient cause under the provisions of section 5 of the Limitation Act was made out by the petitioner. Since we are clearly of the view that on merits of the case, sufficient cause within the meaning of section) 5 of the Limitation Act for setting aside of the ex parte order dated, 7‑9‑1979 has not been made out by the petitioner, we would rather 8 leave the legal question to be decided in another appropriate case, and dismiss this petition in limine.
Leave petition refused.
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