IN THE HIGH COURT OF SINDH AT KARACHI
C.P. NO. S-69 OF 2011.
Present:
Mr. Justice Irfan Saadat Khan.
Petitioners through Mr. Mehmood Habibullah, advocate.
Nemo for respondents 1 and 2.
Respondent No.3 through Mrs. Muqeeema Alam, advocate.
Dates of hearing: 02-02-2011.
J U D G M E N T
IRFAN SAADAT KHAN, J:- Through this petition the petitioner has sought the following reliefs:
(i) To direct the Respondent No.1 to decide the Application for restoration dated 01.07.2010 filed by the Petitioner in F.R>A. No.101/2006 within 15 days on merits and;
(ii) To direct the Respondent No.1 to stay the Execution No.5/2007 proceedings till the final order as defined in the provisions of Section 22 of the Sindh Rented Premises Ordinance is passed in F.R.A. No.101/2007 in the interest of justice.
2. Facts of the case, relevant for the purpose of this petition, are that the petitioner is the tenant of respondent No.3 in respect of Shot No.3, C-20, Rizvia Cooperative Housing Society, Karachi at a monthly rent of Rs.600/-. The Respondent No.3 filed Rent Case No.383/2001 on the ground of personal bona fide need which was allowed vide order dated 15.4.2004. The petitioner challenged this order in FRA No.79/2004 which was allowed and the case was remanded to the Rent Controller for re-writing the judgment after giving opportunity to the parties. The learned Rent Controller, vide judgment dated 28.3.2006 again allowed the ejectment application filed by Respondent No.3. The petitioner again filed another FRA, bearing No.101/2006, impugning the judgment of the Rent Controller dated 28.3.2006. This second FRA was dismissed for non-prosecution vide order dated 31.5.2010. The petitioner filed a restoration application on 1.7.2010 for recalling the order dated 51.5.2010. The grievance of the petitioner is that this restoration application has not been decided by the appellate Court and, therefore, has filed the present petition with the above two prayers.
3. Mr. Mehmood Habibullah, advocate appeared on behalf of the petitioner and argued that the restoration application is pending whereby it is prayed that the order dismissing the FRA for non-prosecution may be recalled which is not being decided, but the learned trial Court is proceeding with the execution proceedings. He submits that no final order has been passed by the appellate Court as the case was dismissed for non-prosecution. He submits that the appellate Court may be directed to pass any order on his restoration application.
4. Mrs. Muqeema Alam, advocate appeared on behalf of the Respondent No.3 and submitted that the petitioner only wants to linger on the matter as is evident from his conduct before the two Courts below. She submitted that the restoration application is time barred and is an afterthought just to delay the execution proceedings. She submits that even writ of possession had already been issued but somehow the possession was not handed over to the Respondent No.3.
5. I have heard the learned counsel for the parties and have gone through the record of the case with their assistance.
6. A perusal of the order dated 31.5.2010, whereby F.R.A. No.101/2006 was dismissed for non-prosecution, shows that on the said date junior of the counsel for the appellant was present in Court and had filed an application for extension of the status quo order. It is also evident from the said order that the learned Presiding Officer has been calling upon the counsel for the appellant either to argue the case as it was a very old matter or to produce a stay order from the Court of District Judge. However, it seems that the learned counsel for the appellant was not ready to either proceed with the matter or to produce a stay order. In the absence of these two options, the only option left with the learned appellate Court was to dismiss the FRA for non-compliance of the Court’s order, which was adopted by it.
7. The learned counsel for the petitioners next submitted that the fate of the restoration application is being delayed. It is evident from the order dated 31.5.2010 that the junior of the counsel for the appellant was present and in his presence the FRA was dismissed for non-compliance of the Court’s order. Thus, it was in the knowledge of the counsel for the appellant that the FRA had been dismissed on 31.5.2010. In such event the restoration application should have been filed as soon as possible but positively on or before 30.6.2010. However, it was filed with one day’s delay on 1.7.2010. No copy of application under section 5 of the Limitation Act has been filed to show that condonation of delay has been sought by the petitioners/applicant.
8. In the case reported as Mst. Halima Tahir and others v. Mst. Naheed Ejaz and others (2010 MLD 554), a Division Bench of this Court, of which I was a member, held as under:
“It is established law that when the application is filed out of time, the party filing such application has to explain each day of delay; more-so, when valuable rights by efflux of time accrue to the opposite party. The conduct of the appellants and their counsel has altogether been casual and of severe negligence to which no premium can be given. There being no explanation whatsoever for not making application in time or for delay in making application, we also find this application to be time-barred. For the foregoing reasons the application is rejected.”
9. A perusal of the memo of the petition shows that the petitioner in para 15 of the petition has stated that “the Rent Controller/Respondent No.2 is proceeding with Execution No.05/2007 and issued the Writ of possession and on the other hand the Respondent No.1/the Appellate Court on one pretext or other is adjourning the matter and neither the restoration application is being heard nor order is being passed and same was adjourned for 26.1.2011.” However, no diary sheets of the learned Appellate Court have been filed to show that the adjournments are made “on one pretext or other by the Court and the petitioners are not responsible for the same. From the order dated 51.5.2010 it is evident that it is the other way around and the counsel for the petitioners was seeking adjournments and was not providing any stay from a superior Court which compelled the appellate court to dismiss the FRA for non-compliance. The penultimate para of the order dated 31.5.2010 reads as under:
“Further, from the conduct of the Appellant it appears that the Appellant is not interested in the proceeding with the case, but is interested in lingering on the case un-necessarily which practice should be discouraged.”
10. It is also observed that in para 10 of the petition it is stated that “the Presiding Officer, [for] reasons best known to her, she became inimical with the Counsel of the Petitioner” however, counsel for the petitioners has not been able to show that the learned Judge acted in an illegal or biased manner.
11. In para 12 of the petition it is averred that “later on the F.R.A. No.101/2006 was dismissed in non-prosecution on 31.5.2010 as the Learned Presiding Officer/Respondent No.1 has developed a fixed aversion and made her mind and in result of these circumstances the F.R.A. 101/2006 was dismissed in non-Compliance.” However, perusal of the order dated 31.5.2010 shows that numerous opportunities were provided to the petitioner either to argue the case or to produce any stay order but learned counsel for the petitioner failed to comply with any one of these conditions.
12. In view of the above, I find no merits in this constitution petition and accordingly dismiss the same as it is evident that the petitioners are just lingering on the matter.
Karachi, the ____ February, 2010. Judge