ALLAH DITTA vs FAROOQ AHMAD AND 3 Other

This Second Appeal from Order arises from the ejectment proceeding brought by Farooq Ahmad etc. Respondents-landlords against Allah Ditta appellant-tenant. The ejectment had been sought on the grounds of default, personal use and damage to the property. Issues were framed on these points, but as the findings went against the landlords, their application was rejected. In appeal before the District Judge, Sialkot, the issues relating to default and damage to the property were not pressed but the finding on the question of personal use was reversed by the appellate Court with the result that the appellant was directed to hand over vacant possession within two months' time. Hence this appeal.

2. Along with the appeal, an application (C. M. No. 4299-C/76) was filed for condonation of delay under section 5 of the Limitation Act in filing this appeal. Another application, i.e. C. M. No. 302-C/79, was also filed for production of additional evidence. Both the applications were opposed by the other side.

3. The crucial point for decision is therefore, whether the present appeal is within limitation. The judgment of the appellate authority had been announced on 11-5-1976 and the present appeal was filed on 7-7-1976. The intervening period is fifty-six days (twenty days in May, thirty days in June ant six days in July). A period of twelve days, i.e. From May 13 to May 24, ha, to be taken out as having been spent in obtaining copy. This leaves forty-four days which means that the appeal is late by fourteen days.

4. Learned counsel for the appellant urged that section 5 of the Limitation Act was applicable and as sufficient cause had been shown b3 way of illness of the appellant, the delay ought to be condoned. He relied on Muhammad Azeem and others v. Muhammad Nawaz and others (PLD 1961 Lah. 137) and Hatim All v. Mst. Zulekha Bibi and others (PLD 1964 Kar. 399). In Muhammad Azeem's case, the appeal had first been filed before the District Judge but accepting the preliminary objection, he had returned the memorandum of appeal, whereupon the same had been filed in the High Court beyond the period prescribed by section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It had been urged therein that the forum for the appeal was "shrouded in some difficulty". The learned Single Judge had condoned the delay in the following words "I have considered the various provisions of law relating to appeals against orders of Rent Controllers appointed under the West Pakistan Urban Rent Restriction Ordinance, 1959, and have arrived at the conclusion that the mistake committed by the learned counsel for the appellant in the present case could not be said to be so gross as to disentitle his clients from getting the benefit of section 5 of the Limitation Act for condoning the delay in the presentation of the appeal."

It is apparent that the question of applicability of section 5 itself had not been examined in any detail. In Hatim Ali's case, the question related to delay in filing the first appeal before the appellate authority and it had been held that unless the period of limitation prescribed by special law was different, section 5 of the Limitation Act could not be excluded. It was observed "It is, therefore, absolutely clear that the period of limitation prescribed under the above-mentioned special enactment is not, by any means different from the one prescribed for similar appeal by the First Schedule. In view of this section 29 of the Limitation Act has no bearing on the point involved in this case."

It is to be noted that the period of limitation for filing the first appeal under subsection (1) of section 15 as also under Article 152, is the same, i.e. Thirty days. That is, however, not so as regards the filing of the appeal in the High Court. The time allowed for such appeal by subsection (4) of section 15, is thirty days, whereas under Article 156 of the Limitation Act, it is ninety days. The time allowed for filing the second appeal by the special law i.e. West Pakistan Urban Rent Restriction Ordinance, 1959, is, therefore, different from that given in the Limitation Act. In such a 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. This position had been upheld even in Hatim All's case relied upon by learned counsel for the appellant, wherein it had been held : "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 this section. Undoubtedly in such cases section 5 of the Limitation Act would not apply and only sections 4, 9 to 18 and 22 would apply in so far and to the extent to which they are not expressly excluded by special or local law. Thus in order to attract this provision of law two important factors must be kept under -consideration. Firstly, whether the special law has prescribed for the appeal a different period of limitation from that prescribed under the First Schedule and, secondly whether under it, the application of sections 4, 9 to ? 8 and 22 has in any way been curtailed for computing limitation. Otherwise, these provisions of law shall have to be taken into consideration for the purpose of determining any period prescribed for any appeal by it. Clearly in such event section 5 of the Limitation Act would not be applicable and shall have to be excluded from consideration. "

The question, though in the context of another special law (Displaced Persons (Land Settlement)

Act), had been examined at some length by a Division Bench of this Court in Syed Mahmud Alam v.

Syed Mehdi Hussain and 2 others (PLD 1970 Lah. 6), wherein the aforesaid authorities had been dissented from, and it had been held that section 5 was not applicable to appeals under the said Act. This Division Bench authority has a binding value and accordingly I hold that the appeal is barred by limitation.

5. On this view of the matter, the appeal is dismissed. There shall be no order as to costs.