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First Rent Appeal No. 284 of 1985 decided on 28th May, 1985.

Sind Rented Premises Ordinance (XVII

of 1979)--

---S 21--Limitation Act (IX of 1908), Ss.5 & 29(2)--Ejectment--Appeal- Limitation--Condonation of delay--Time allowed for filing appeal in Ordinance different from that given in Limitation Act, 1908--Provisions of S. 5, Limitation Act, 1908, held, would not be applicable to appeals under S. 21, Rent Ordinance, M and application for condonation of delay filed by tenant was not maintainable--Appeal of tenant against order of ejectment filed beyond period of limitation dismissed.

Faizanul Haque for Appellant.

S.Irtaza Hussain Zaidi for Respondent.

Date of hearing: 26th May, 1985.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is directed against the order dated 21-2-1985 passed by VIth Senior Civil Judge and Rent Controller, Karachi whereby the ejectment application of the respondent was allowed and the appellant was directed to hand over the vacant possession of the premises within two months from the date of the order.

The facts which give rise to this appeal are that the respondent is owner of shop on Plot No. 807, Block 1, West Corner, Drigh Colony, Karachi-25 and the appellant is tenant in respect thereof at the monthly rent of Rs.100. The respondent filed an application for ejectment bearing

Rent Case No. 5510 of 1983 against the appellant on the ground of bona fide personal use for running business of cutting and stitching cloths. The appellant resisted the application. The respondent examined herself as Exh. 4. She was cross-examined by the appellant. The appellant filed his affidavit-in-evidence but did not submit himself for cross-examination before the learned trial Court.

The learned Rent Controller, after recording the evidence and taking into consideration the arguments of the learned counsel for the respondent, held issue No.l in the affirmative and consequently the rent application stood allowed by his order, dated 1-2-1985.

The appellant being aggrieved against the afore-said order has preferred this appeal on the grounds mentioned in the memo. of appeal.

Mr.Faizanul Haque, learned counsel for the appellant, has contended that the appellant could not attend the Court on 27-1-1985 for cross-examination due to his illness. On the other hand Mr. S.Irtaza Hussain Zaidi has urged that the appeal is time-barred. He has submitted that the order of ejectment was passed on 21-2-1985 and the present appeal was instituted on 16-4-1985. I have perused the order of the learned Rent Controller as well as the memo. of appeal. I have also perused the certificate issued by Dr. Ghulam Sarwar on 14-4-1985 stating therein that the appellant was under his treatment for lambago sciatica since 15-2-1985. The case was fixed for the purpose of cross-examination of the appellant on 27-1-1985 and no sufficient cause has been shown that the appellant was sick on 27-1-1985. The certificate Annexure 'E' to the appeal is for a different period and shows that the appellant was under treatment from 15-2-1985 to 14-4-1985. Learned counsel for the appellant filed an application under section 29 of the Limitation Act for condonation of fifteen days delay. He has also submitted that the appellant is patient of lambago sciatica and he was confined to bed from 15-2-1985 to 14-4-1985.

This first rent appeal has been filed on 16-4-1985 and is admittedly time barred for the same has been filed beyond the period of thirty days of the passing of the order, that is, 21-2-1985, provided in section 21 of the said Ordinance. However, in this appeal, application for condonation of delay has been made.

The question that arises for consideration is whether section 5 read with section 29 of the Limitation Act applies to appeal under section 21 of the said Ordinance It is admitted by the learned counsel for the appellant that section 5 of the Limitation Act has not specifically been made applicable to such appeal, therefore, the further question that falls for consideration is that by virtue of provisions of section 29, subsection (2) of the Limitation Act, 1908, section 5 of the Limitation Act is applicable to first rent appeal or not

It is to be noted that the period of limitation for filing first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is thirty days whereas under Article 156 of the Limitation Act, it is ninety days. The time allowed for filing the first appeal by the A special Law, that is, the Sind Rented Premises Ordinance, 1979 is, therefore, different from that given in the Limitation Act. in such situation, section 5 stands excluded by virtue of section 29 (2) of the Limitation Act, which permits the application of only sections 4, 9 to 18 and 22.

On plain reading of section 29(2) of the Limitation Act, it would appear that it only lays down that where special or local law provides for a period different from the period prescribed by the First Schedule, Provisions of the Limitation Act will only apply to the extent expressly specified in the section.

I, therefore, hold that the provisions of section 5 of the Limitation Act are not applicable to appeals under section 21 of the Sind Rented Premises Ordinance and consequently Miscellaneous Application No. 742 of 1985 is not maintainable. Accordingly the application is dismissed.

Since First Rent Appeal No. 284 of 1985 has been filed beyond the period of limitation, the same is dismissed. However, two months time is allowed to the appellant from 26-5-1985 to vacate the premises.

M . Y . H .

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