C. P. No.S-327 of 2008.
O R D E
R
Date of
hearing : 26.8.2008.
|
Petitioner |
: |
Mrs.Farida Khanam through Mr.Bashir Ahmed Qureshi, Advocate. |
|
Respondents
|
: |
Mansoor Azmatullah Qadri through Mr.Kh. Masood Bilal, Advocate. Additional Controller of Rent, Clifton Cantonment, Karachi. |
Syed
Mehmood Alam Rizvi, J :- This petition is directed against the
impugned order dated 07.5.2008 passed by the learned Additional Controller of
Rent, Clifton Cantonment, Karachi in Rent Case No.31/2000 by which the learned
Rent Controller was pleased to allow the ejectment petition and directed the
petitioner to hand over the possession of the tenement to the respondent or his
representative within 30 days.
2.
Precisely,
the facts of the case are that the petitioner is the tenant of the respondent
No.1 since December, 1991 of Flat situated at Third Floor on the Plot No.34-C,
Stadium Lane 4, Phase-V, DHA, Karachi, initially at the rate of Rs.5000/= which
was
enhanced to Rs.7000/= and
thereafter, to Rs.8750/=.
3.
The
rent application was filed in 2000 on the ground that the tenant has committed
default regarding the payment of utilities i.e. water and conservancy charges
from June, 1991 to June, 2000, hence committed willful default and also default
in payment of monthly rent.
4.
That
earlier the rent application was dismissed vide order dated 23.9.2000. The respondent No.1 filed FRA No.1533/2000
in this Court, during the course of arguments, the said order was set aside and
the case was remanded to examine the postman on the point of refusal of money
order by the landlord or his attorney vide order dated 05.9.2007.
5.
That
after the cross-examination of the postman, it is held by the learned Rent
Controller that the landlord had not refused to accept the rent and ultimately
the ejectment application was allowed.
6.
Notices
were issued to the respondent. As a
result, Mr.Kh.Masood Bilal, Advocate appeared for the respondent No.1 and
outrightly, raised the objection regarding the maintainability of this petition
and was ready to proceed on the very first date of hearing i.e. 11.8.2008, but
the learned counsel for the petitioner sought time, hence the matter was fixed
today at 11.00 a.m. As the learned
counsel for the respondent No.1 raised the objection first, regarding the
maintainability of the petition, he has also filed the counter affidavit and
objections to the petition, which have been already received by the learned
counsel for the petitioner.
7.
Mr.Masood
raised two objections, (1) the petition was not maintainable as the appropriate
remedy was available to the petitioner to file the First Rent Appeal before the
appellate forum, and (2) this petition is hopelessly time-barred.
8.
Learned
counsel for the respondent No.1 referred section 24 of the Cantonment Rent
Restrictions Act, 1963 (XI of 1963), which reads as under:-
“24. 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 High
Court.”
He further contended that
now, after the notification of the Hon'ble Chief Justice, the appeal shall be
filed before the District Judge and even otherwise, if this petition is
converted into FRA, even then this is time-barred. He argued that the impugned order was passed on 07.5.2008,
application for certified copy was filed on 23.6.2008 and on the same day it
was received and thereafter, this petition was filed on 02.8.2008, which is
hopelessly time-barred and even the petitioner has not filed any application
for condonation of the limitation period and even no satisfactory reason has
been given.
9.
He
further contended that even otherwise, the condonation is not permitted under
section 5 of the Limitation Act, as it is bar under section 29 of the Limitation
Act, as where any special or local law prescribed for any suit, appeal or
application, the period of limitation is different from the period prescribed
thereto by the First Schedule, the provisions of section 3 shall apply as such
period was prescribed therefore, 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.
He has relied upon PLD 1983 S.C. 21 (Abdur Rehman v. Mir Ahmad Khan) and
1983 SCMR 1239 (Ali Muhammad v. Fazal Hussain).
10.
The
learned counsel for the petitioner has contended that the ejectment order was
passed on 07.5.2008 when the petitioner was seriously ill and the said order
was not in his knowledge and after her recovery, she contacted him, therefore,
the learned counsel sought copy in one day and thereafter, on 02.8.2008 filed
this petition.
11.
Heard
both the counsel for the parties and perused the record and law.
12.
It
is, fact that the impugned order was passed on 07.5.2008 and copy was applied
on 23.6.2008 and on the face of it the appeal is time-barred. The reasons, given by the learned counsel
for the petitioner, also without any supporting affidavit and he has failed to
satisfy the Court on the point of maintainability of the petition as held in
Abdur Rehman’s case (supra) as the adequate remedy was available to him, but he
directly filed this petition and secondly, on the point of limitation that when
per section 24, the appeal should have been filed within 30 days, he has filed,
after a delay of 32 days, and no satisfactory explanation has been given by the
petitioner, hence this application is dismissed in limine.
13.
These
are the reasons of the short order passed in Court today.
JUDGE
Karachi
:
Dated:
26.8.2008.
Shakeel