IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No. S – 494 of 2019
Order with signature of Judge
Fresh Case :
1. For orders on CMA No.1827/2019 (Stay) :
2. For hearing of Main Case :
06.05.2019 : Mr. Abdul Nabi Joyo, advocate for the petitioner.
Aftab Ahmed, respondent No.1, present in person.
This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against order dated 16.02.2019 passed by the learned appellate Court whereby First Rent Appeal No.224/2018 filed by the petitioner against the order of its eviction was dismissed as being barred by limitation. The order for eviction of the petitioner was passed by the learned Rent Controller on 31.05.2018 under Sub-Section (2) of Section 16 of the Sindh Rented Premises Ordinance, 1979, as the petitioner had failed to comply with the tentative rent order passed under Sub-Section (1) of Section 16 ibid. Appeal against the order of its eviction could be filed by the petitioner within thirty (30) days from the date of such order under Section 21 of the above Ordinance. However, the appeal was filed on 10.09.2018 after about three months and ten (10) days of passing of the order and after more than two (02) months of expiration of the prescribed period of limitation.
As the appeal was barred by time, an application under Section 5 of the Limitation Act, 1908, was filed by the petitioner for condoning the delay. The only ground urged by the petitioner before the learned appellate Court was that its attorney had fallen sick due to which he was advised bed rest from 01.08.2018 to 10.09.2018, and in support of this contention a medical certificate was filed. While dismissing the appeal as being hopelessly barred by limitation, it was held by the learned appellate Court that the explanation given by the petitioner for the delay in filing the appeal was not satisfactory as the petitioner was a school having a proper administration and management for running its affairs, and thus the appeal could have been filed by the petitioner within time through any other of its representatives.
It may be observed that the above application filed by the petitioner for condoning the delay in filing the appeal was misconceived and not maintainable as the provisions of Section 5 of the Limitation Act, 1908, are not applicable to the appeals filed under the Sindh Rented Premises Ordinance, 1979, as held by the Hon’ble Supreme Court in Haji Hussain Haji Dawood through Legal Heirs and others V/S M. Y. Kherati, 2002 SCMR 343. It is well-settled that if a special law specifically provides the limitation for filing an appeal under that law, the provisions of Section 5 of the Limitation Act, 1908, cannot be invoked for condoning the delay in filing an appeal under that special law nor can the delay be condoned under the said Section 5. Sindh Rented Premises Ordinance, 1979, is a special law wherein the limitation for filing an appeal has been specifically provided in Section 21. In view of this legal position, the learned appellate Court was not required either to consider the petitioner’s application for condonation or to give any findings thereon, and the said application ought to have been dismissed straightaway in view of the above principle. Be that as it may, the appeal was rightly dismissed by the learned appellate Court as being hopelessly barred by time.
Accordingly, the present petition, being misconceived and having no merits, is dismissed along with listed application.
J U D G E