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First Rent Appeal No.67 of 1985, decided on 12th August, 1987.

---S. 21--Appeal--Limitation--Ejectment order passed on 29-5-1985 and application for certified copy moved on 27-7-1985 after about sixty days nearly thirty days after the period of thirty days of limitation provided by S. 21--Appeal filed on 1-8-1985, held, was barred by time--Appeal dismissed as time-barred--Appellant wanting to approach Supreme Court granted time till 31-10-1987 to vacate the premises.

Rauf Hussain Qureshi v. Muhammad Naqi 1986 C L IC 1367 and Civil Petition for Leave to Appeal No.163-K /86 rel.

Muhammad Ismail v. Kali Charan Singh A I R 1931 Cal. 131 and B.K. Rai v. Thunmansingh A I R 1936 Nag. 289 cited.

Muhammad Hanif Mangi for Appellant.

Wahid Bux Baloch for Respondent No.l.

Nemo for Respondent No.2.

Date of hearing: 12th August, 1987.

This appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979 challenging the order dated 29-5-1985 passed by learned Rent Controller, Jacobabad, allowing the rent application filed by the respondent No.l/landlord and ordering ejectment of the appellant /tenant from the house in question. A preliminary objection has been raised by Mr. Wahid Bux Baloch, learned counsel for the landlord /respondent No. l and that is that the present appeal is barred by time. It is pointed out by the learned counsel for the landlord that under section 21 of the Sind Rented Premises Ordinance, 1979, the period of limitation for filing an appeal to the High Court against the order of the Rent Controller is 30 days. It is further pointed out by learned counsel that the ejectment order in this case was passed by the learned Rent Controller on 29-5-1985, application for certified copy of the judgment was filed by the appellant /tenant on 27-7-1985 i.e. much after the expiry of the period of limitation of 30 days prescribed by section 21 of the 1979 Rent Ordinance, certified copy was supplied to the appellant on 28-7-1985 and the appeal was filed in this Court on 1-8-1985. According to learned counsel 1-8-1985 was the reopening day of this Court after the summer vacation of 1985. On this preliminary objection I have heard the two learned counsel.

Learned counsel for respondent No.l has relied on a judgment of learned Single Judge of this Court in the case of Rauf Hussain Qureshi v. Muhammad Naqi 1986 C L C 1367. In that case the ejectment order was passed by the Rent Controller on 30-5-1985 while application for grant of certified copy of the ejectment order was filed by the appellant /tenant on 15-7-1985 which was granted on the same day and the appeal was presented in the High Court on 20-7-1985. Learned Single Judge in his judgment came to the conclusion, after citing various reported judgments, that as the appellant in that case had filed the application for certified copy after the: period of limitation, i.e. after 30 days, the filing of the appeal on 15-7-1985 was barred by time. It is then pointed out by Mr. Wahid Bux Baloch, learned counsel for the respondent No.l/landlord, that against the aforesaid reported judgment, the appellant /tenant filed Civil Petition for Leave to Appeal No.163-K/86 before the Supreme Court but the same was dismissed. A copy of the order dated 19-5-1986 of the Supreme Court refusing to grant leave to appeal in that case been placed on record by Mr. Wahid Bux Baloch and the entire order of the Supreme Court passed on 19-5-1986 is reproduced here:

"This is a petition for leave to appeal from the judgment of a learned Judge of. Sind High Court dated 11-2-1986 .by which an appeal filed by the petitioner was dismissed on the ground that it was barred by time.

After having gone through the record of the case we are clearly of the view that no exception in law can be taken with the view that prevailed on the facts and circumstances of the case that petitioner's appeal was barred by time.

The petition is therefore dismissed."

From the order dated 19-5-1986 passed by the Supreme Court in Civil Petition for Leave to Appeal No.163-K/86 it follows that the view taken by the learned Single Judge of this Court in the case reported in 1986 C L C 1367 on the question of limitation has been approved by the Supreme Court.

Mr. Mohammad Hanif Mangi, learned counsel for the appellant/ tenant has submitted that the judgment reported in 1968 CLC 1367 is distinguishable and has also cited two decisions of the Indian jurisdiction on the question of limitation and these are: -

(i) Mohammad Ismail v. Kali Charan Singh A I R 1931 Calcutta 131.

(ii) B.K.Rai v. Thunmansingh A I R 1936 Nagpur 289.

The facts of the present case are identical to the facts in the case reported in 1986 C L C 1367 in so far as the question of limitation is concerned. In the present case the ejectment order was passed on 29-5-1985 and the application for certified copy was moved on 27-7-1985 after about 60 days which is nearly 30 days after the period of 30 days provided by section 21 of the Sind Rented Premises Ordinance, 1979 and the present rent appeal was filed in this Court on 1-8-1985. In the case reported in 1986 C L C -1367, the ejectment order was passed by the Rent Controller on 30-5-1985 while the application for certified copy of the ejectment order was filed on 15-7-1985 which was granted on the same day and the appeal was presented in the Court even before the Court reopened i.e. 20-7-1985 but, as observed earlier, learned Single Judge of this Court held that the appeal was barred by time and it has already been noticed that a petition for leave to appeal filed against that judgment of the learned Single Judge has been dismissed by order dated 19-5-1986 of the Supreme Court of Pakistan where they have approved the view taken by the learned Single Judge in 1986 C L C 1367 on the question of limitation.

Learned counsel for the appellant had drawn my attention to sections 4 and 12 of the Limitation Act, 1908. Section 4 reads as follows:-

"Where the period of limitation prescribed for any such appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens."

On the basis of the provisions contained in section 4 it was argued that in the instant case ejectment order was passed on 29-5-1985 and as such 30 days were expiring on 28-6-1985 but in June and July 1985 the High Court was closed for summer vacation and it reopened on 1-8-1985 and as such the present appeal was competently presented before this Court on 1-8-1985 when the Court reopened. The contention of learned counsel appears to have substance but then the view taken by the learned Single Judge in 1986 C L C 1367, that in such circumstances the appeal would be barred by time unless the certified copy is applied for within period of 30 days, have been approved by the Supreme Court, and as such this appeal has to be dismissed on the ground that it is barred by time.

One other contention was raised by the learned counsel for the appellant and that was that the impugned order is an ex parte order and as soon as the appellant came to know about it, he applied for a certified copy and as such this case is distinguishable. I find no merit in this contention as admittedly appellant had appeared before the Rent Controller, engaged a counsel, filed a written statement and even respondent No.l was cross-examined by the counsel who was then appearing for the appellant before the Rent Controller but thereafter, for reasons best known to him, the appellant did not take any further part in the proceedings and as such his side was closed and the ejectment order was passed on merits on 29-5-1985. In these circumstances, the appellant cannot take advantage of the fact that he was not present when the final order of ejectment was passed on 29-5-1985 and he came to know about passing of the ejectment order on a much later date.

For the aforesaid reasons, F.R.A. 67/85 is dismissed as time-barred but with no order as to costs. The appellant wants time so that he may approach the Supreme Court. Time is granted till) 31-10-1987 to the appellant to vacate the premises.

S. Q./M-235/K Appeal dismissed.

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