ABDUL GHAFFAR AND Other vs Mst. MUMTAZ

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 19-5-1981 of the Sind High Court whereby the petitioner's appeal under section 21 of the Sind Rental Premises Ordinance, 1979 (Ordinance XVII of 1979) was dismissed as time-barred, on the finding that section 5 of the Limitation Act, 1908 (Act No. IX of 1908) is not applicable to such an appeal.

2. Learned counsel appearing in support of this petition raised only the question of law regarding the application of section 5 of the Limitation Act. He has contended :that the appeal provided in section 21 of the Sind Rental Premises Ordinance should be treated as the appeal referred to in Article 152 and not Article 156 of the Limitation Act, therefore, the period of thirty days being the same as under the Limitation Act, section 29 of the said would not exclude the application of section 5 thereof; that in the alternative if the appeal under section 21 to the High Court is treated as similar to that mentioned in Article 156 of the Limitation Act then also section 5 would be attracted by virtue of section 3 thereof-the latter provision would become applicable as required by subsection (2) of, section 29; and lastly, he contended that even if section 5 does .Iot apply the principles underlying the same could be relied upon for condonation of delay-there being no bar in this behalf under the general law or any principle. The provisions referred to by the learned counsel read as follows :- Section 21 of the Sind Rental Premises Ordinance, 1979: "21. Appeal.-(1) Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of . Such order prefer an appeal to the High Court.

(2) The appellate authority may pending the final disposal of the appeal, grant injunction staying further proceedings or action on the order of the Controller Provided that no injunction shall be granted if the appeal has been preferred from the order under section 14.

(3) The appellate authority shall, after perusing the record of the case and giving the parties an opportunity of being beard and, if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final."

3. Limitation Act, 1908: "3. Dismissal of suit etc., instituted etc., after period of limitation.- Subject to the provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made after the period of limitation, prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence.

4. Explanation.-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer ; in the case of pauper, when his application for leave to sue as a pauper is made ; and, in the case of a claim against a company which being wound up by the Court, when the claimant first sends his claim to the official liquidator."

5. "5. Extension of period in certain: cases.-Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

6. Explanation.-The fact that the appellant or application was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."

7. "29. Savings.-(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.

(2) Where any special or local law prescribes for any suits, appeal or application a period of limitation different from the period prescribed therein by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law.

(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law ; and

(b) the remaining provisions of this Act shall not apply.

(3) Nothing in this Act shall apply to suits under the Divorce Act (IV of 1869).

(4) Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act (V of 1882), may for the time being extend."

8. Articles of Limitation Act, 1908: "152.Under the Code of Civil Pro-Thirty daysThe date of the cedure, 1908 to the Court ofdecree or order a District judge.Appealed from."

9. "156.Under the Code of Civil Pro-Ninety daysThe date of the cedure, 1908, to a High Court,decree or order except in the cases providedappealed from." for by Article 151 and Article 153.

10. It would not be possible for us on any reasoning to assume that the `High Court' to which appeal lies under section 21 of the Ordinance is not the same `High Court' which is mentioned in Article 156 of the Limitation Act. We, therefore, do not agree with the learned counsel that the period of thirty days provided in the Ordinance is the same as is provided for first appeal (to the District Court) under Article 159; and that it is not different from the period provided under Article 156, i. e. ninety days, for filing an appeal before the 'High Court'. The basic assumption made in the first contention of the learned counsel being far-fetched, it is not necessary to examine the consequences (if such an assumption would have been made).

11. The second contention is also without any force. Subsection (2) of section 29 of the Limitation Act relates to special and local laws. The Sin d Ordinance, it has been admitted, is such a law. We have already held that the period of limitation for filing the appeal under this law (thirty days) I different from the period prescribed by Article 156 of the Limitation Act; therefore, as provided in section 29(2), the provisions of section 3 thereof would apply to such a situation, but subject to the exclusions contained in section 29 itself. When section 3 of the Limitation Act is applied, the provisions of sections 4 to 25 of that Act would get (normally) attracted by virtue of section 3. But if it is a case covered by section 29, the provisions of sections 4 to 25 would apply only to the extent that any of them have not been excluded by the combined reading of clauses (a) and (b) of section 29 (2). And, it is not denied that the said two clauses when read together in the context of Sind Rental Premises Ordinance, 1979 do exclude section 5 of the Limitation Act. Therefore, the learned Single Judge of the High Court has rightly refused to apply the same in this case.

12. It may be mentioned here that the Sind High Court in recently reported cases have taken the same view of section 29(2) read with sections 3 and 5 of the Limitation Act. They are Messrs Muqtada Khan lqtida Khan v. Allah Rakhi Begu--t (1) and Syed Muhammad v. Mazhar Ali Khan (2). We approve of the same as it is also in accord with the decision of this Court in Elahi Bakhsh v. Chief Administrator Waq f Property (3). The reliance of the learned counsel for the petitioner on Ali Jan and 5 others v. Commissioner, F. C. R. Quetta Division and 7 others (4), is misplaced both with regard to his argument on interpretation of law of limitation as also regarding its so-called conflict with the view taken in Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others (5). The Quetta case is clearly distinguishable on several points which it is not necessary to go into, in this case.

13. The last argument of the learned counsel that the principles underlying section 5 should have been applied by the High Court, even if its provisions are excluded, is too wide to be accepted in the face of combined effect, as already noted; of the reading of clauses (a) and (b) of section 29(2), together with sections 3 and 5 of the Limitation Act. Be that as it may, the intention underlying the law relevant in this case (the Sind Rental Premises Ordinance, 1979) is too clear to permit any serious discussion on this argument of the learned counsel.

14. This petition fails and is accordingly dismissed.

(1) 1981 CLC 568 (2) PLD 1981 Kar. 76

(3) Law Notes 1970 SC 358 (4) PLD 1970 Quetta 93

(5) PLD 1970 Lah. 6