ATTU vs GHULAM ALI
This petition for special leave to appeal challenged a Sind High Court judgment that dismissed the petitioner's appeal against an ejectment order as time-barred. The petitioner, who had been ejected via an ex parte order, sought condonation of delay under Section 5 of the Limitation Act, 1908, citing his detention in India and subsequent return to Pakistan. The High Court had dismissed the appeal without addressing the merits of the condonation application, holding that Section 5 of the Limitation Act, 1908, was inapplicable to appeals filed under Section 21 of the Sind Rented Premises Ordinance, 1979. The Supreme Court observed that even if the High Court's legal interpretation regarding the applicability of Section 5 was erroneous, a remand would be futile because the petitioner failed to establish 'sufficient cause' on the merits of his case. Consequently, the Supreme Court declined to resolve the legal question regarding the applicability of the Limitation Act to the Ordinance and dismissed the petition in limine, finding no justification for condoning the delay.
- Does the failure to establish sufficient cause for delay on the merits justify dismissing a petition for leave to appeal without deciding the underlying legal question of the applicability of the Limitation Act?
- Can an appellate court dismiss an application for condonation of delay without considering the merits of the reasons provided?
- Section 5, Limitation Act 1908
- Section 21, Sind Rented Premises Ordinance 1979
ORDER
1. ABDUL KADIR SHAIKH, J. 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.
2. 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".
3. 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.