' MUHAMMAD ATHER SAEED, J.---This petition has been filed against the impugned order dated 3- 12-2004 passed by the Additional District Judge, Karachi (East), who has upheld the orders under section 16(1) of Sindh Rented Premises Ordinance, 1979 dated 30-10-2003 and under section 16(2) dated 24-12-2003 passed by IIIrd Rent Controller, Karachi (East) wherein the defence of the petitioner was stuck off because she had failed to comply with the tentative rent order passed under section 16(1) asking her to deposit a sum of Rs,1,90,000 as arrears of monthly rent from Ist March, 2000 to 31-4-2003 and future rents within 30 days with the Nazir of that Court. The learned Additional District Judge has upheld the order striking off the defence and also held that the appeal was barred by seventeen days for which no satisfactory explanation has been furnished and further held that section 5 of the Limitation Act is not applicable in rent proceedings. The learned Additional District Judge has also held that he did not find any illegality in the order of the Rent Controller.
2. I have heard the learned counsel for the parties and have gone through the case record.
3. The learned counsel for the petitioner stated that initially she had booked this flat by paying amount of Rs,1,30,000 to the builder Messrs Rufi Builders (Pvt.) Ltd., in support of which the acknowledgement of possession by Rufi Builders (Pvt.) Ltd. Has been attached. He further conceded that due to financial difficulties the petitioner's husband asked his friend the present respondent to advance him a loan to pay off the instalments of the flat and the loan was advanced to him on the condition that the same shall be paid directly to the builder and the lease will be executed in the name of the respondent and will be transferred back to the petitioner after the loan was repaid. He further pointed out that after payment of loan of Rs,60,000 the respondent changed his mind and refused to accept any further amount on account of repayment of loan. He said that in his written statement filed before the learned Rent Controller he had specifically contended that no rent agreement was executed between the petitioner and the respondent and the tenancy agreement A purported to have been executed and filed by the respondent was a forged document, therefore, there existed no relationship of landlord and tenant between the respondent and the petitioner and no payment on account of rent had ever been made by her to the landlord. He further contended that learned Rent Controller lacked the jurisdiction to try the rent case between the petitioner and respondent No,3 and it was further agitated that petitioner is owner of the premises in question and he has not been allowed to adduce evidence to prove her defence before the learned trial Court. He stated that the petitioner is original allottee of the premises in question from its builder. In this connection he drew my attention to letter from builders regarding acknowledgement of possession letter dated 31-1-1995. It is not denied by the respondent No,3 regarding her possession of the premises in question. In support of his claim regarding the loan amount obtained from respondent No,3 he drew- my attention to the receipts of loan amount. He pointed out that the alleged rent agreement dated 25-5-1995 was a fabricated document on the ground that it is alleged to have been signed and executed and attested on 25- 5-1995 whereas the signature of the petitioner is forged, and the respondent No,3 relied upon the lease agreement of the premises in question dated 12-6-1995 annexed with counter-affidavit of respondent No,3 which contradicts the basic forged rent agreement dated 25-5-1995 thaf the respondent No,3 was not in possession of the premises in question and in support of petitioner's claim she has filed documents to prove that she is in possession of the premises in question since 31-1-1995 and respondent No,3 has not produced any sort of documents to support that on 31-1- 1995 he was in possession of the premises in question and handed over the same to the petitioner as tenant. It was further pointed out that the builder vide Letter No,RBI/RAPP/M/95-6728 dated 31-1- 1995 handed over the possession of the subject premises to the petitioner vide acknowledgement of possession letter dated 31-1-1995. In support of his contentions he relied on the following case- laws:-
(1) Abdul Hameed and others v. Haji Muhammad Javed (1999 MLD 3031).
(2) Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064).
(3) Abdur Rehman v. Wilayat Begum (PLD 1974 Note 19 at p.55).
(4) Mst. Rehana Begum v. Mst. Shagufta (1995 SCMR 323).
(5) Mst. Miskina Jan v. Rehmat Din (1992 SCMR 1149).
(6) Hafeezuddin and 2 others v. Badaruddin and 3 others (PLD 2003 Karachi 444).
3-A. Mr. Tariq Ali, learned counsel for the respondent, very ably presented the case of the respondent. His plea was that in his written statement the applicant had conceded that there was a relationship of landlord and tenant. He drew my attention to the 'following extract from the written statement.
' "But in order to secure his money and for his safe side, he directly paid the said amount to the builder and by mutual understanding, it was arranged to get the sub-lease registered in the name of applicant."
4. He relied on the judgment of he Honourable Supreme Court in the case of Dr. Arshad Kamal Khan v. Mrs. Saeeda Khalid Kamal Khan and others (1993 SCMR 1360) wherein the hounorable Supreme Court has held that the noncompliance of the tentative order by the tenant had rightly entailed the penalty or striking out his defence and that being statutory penalty could not be avoided unless good reasons were given and sustained. He also stressed that in a number of cases the Honourable Supreme Court and this Court have held that section 5 of the Limitation Act does not apply to the proceedings under Rent Ordinance and, therefore, condonation of delay cannot be allowed. In this connection he has relied on judgment of this Court reported in 2002 MLD 39 and the unreported judgment in R.F.A. No,7 of 2004 dated 28-3-2005. He, therefore, prayed that the petition be dismissed and the order -of the learned District Judge be maintained. He also argued that in a constitutional petition this Court cannot exercise its jurisdiction in respect of disputed facts.
5. I have examined the case in the light of the arguments of the learned counsel, the judgments relied on by them and have carefully perused the records of the case and the impugned orders.
The impugned order passed by the learned Additional District Judge and the orders under section 16(1) and section 16(2) dated 30th October, 2003 and 24th December, 2003 respectively passed by the IIIrd Senior Civil Judge, Karachi, appear to be sketchy and non-speaking orders. A perusal of the impugned order leads to the inescapable conclusion that the learned Ist Additional District Judge, Karachi (East) has passed the judgment in a mechanical manner without giving cogent reasons for dismissing the appeal.
6. It will be relevant to first discuss the legal contention raised by the learned counsel for the respondent which was one of the main grounds for dismissal of the appeal. This ground, as contended by the learned counsel for the respondent, is that the appeal was time-barred by seventeen days and according to him since the Sindh Rented Premises Ordinance, 1979 is an special Act, therefore, section 5 of the Limitation Act is not applicable to the appeals tiled under section 21 of the Sindh Rented Premises Ordinance in view of the provisions of section 29(2) of the Limitation Act. It will be relevant to reproduce section 29(2) of the Limitation Act, which reads as under:- "29. Savings [(1) Nothing in this Act shall effect section 25 of the Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed thereto by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor 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.
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.]
7. From a perusal of the above section it appears that where a period of limitation is different from a period prescribed therefor by the Ist Schedule of the Limitation Act has been provided by a special local law for filing of any suit, appeal or application the provisions of Limitation Act including that of section 5 shall not apply. In the light of the above provision it will be worthwhile to examine that Article 152 of the Ist Schedule to the Limitation Act which provides a period of limitation of thirty days for an appeal under the Code of Civil Procedure to the Court of a District Judge. Section 21 of the Sindh Rented Premises Ordinance also provides a period of thirty days to file the Ist Appeal before the District Judge against the order of the Rent Controller. Since the time period of limitation for filing both the appeals is the same, therefore, in my opinion, section 29(2) shall not be applicable to the rent appeals filed under Sindh Rented Premises Ordinance and therefore all the provisions of Limitation Act including section 5 will be applicable. This question came up for consideration before a learned Single Judge of this Court in the case of Hatim Ali v.
Mst. Zulekha Bibi and others (PLt) 1964 (W.P.) Karachi 399 and the learned Judge (Wahiduddin Ahmed, J as he then was) held as under:-
10. After careful consideration of the question involved in this matter I have come to the conclusion that under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 no period of limitation different from the period prescribed by Schedule I, Limitation Act, is indicated. Therefore, the provisions of section 29(2) have no application so as to exclude the provisions of section 5 of the Limitation Act, from being applied to appeals under the said special enactment.
8. This point was also considered in a judgment of a Division Bench of this Court in the case of Messrs Muqtada Khan Iqtida Khan v. Allah Rakhi Begum (1981 CLC 568). In this case the learned Division Bench of this Court expressly approved of the reasoning in the Hatim Ali's judgment in so far as applicability of section 5 of the Limitation Act to cases where the period of limitation for appeal was the same both under the special law and under the Limitation Act was concerned.
However, the learned Division Bench held that such reasoning would not apply in the present case because the instant appeal was filed not under section 15(1) of the Rent Ordinance (as in the Hatim Ali case), but under section 15(4) of the Rent Ordinance. Appeals under section 15(1) of the Rent Ordinance were in the nature of 1st Civil Appeals to the District Judge and the limitation period for such appeals was the same under both the Rent Ordinance and the Limitation Act. However, appeals under section 15(4) of the Rent Ordinance were in the nature of 2nd Civil Appeals to the High Court and the limitation period for.The two were different under the Rent Ordinance (30 days) and the Limitation Act (90 days).
9. The learned counsel for the respondent and the learned District Judge had relied on another judgment of this Court reported in Akhtar Hussain Khan v. Noor Ahmed (2002 MLD 39) wherein a learned Single Judge of this Court held that provisions of section 5 of the Limitation Act has no applicability to the matters governed by Cantonments Rent Restrictions Act, 1963. The reasoning behind such order is that under provisions of Cantonments Rent Restriction Act, an appeal has to be filed directly before the High Court whereas no time for filing appeal before the High Court is prescribed by the Limitation Act, 1908 and, therefore, the learned Single Judge held that provisions of section 29(2) were applicable and therefore, section 5 of the limitation was ousted. This case is clearly distinguishable. Respectfully following the conclusion reached in the first two cases, I hold that the Additional District Judge was wrong in concluding that section 5 of he Limitation Act was not applicable to the appeals filed under the Sindh Rented Premises Ordinance and, therefore, he did not consider the explanation in support of application for condonation of delay filed by the petitioner under section 5 of the Act.
10. Coming to the merits of the case, the petitioner had specifically denied that there existed a relationship of landlord and tenant between her and the respondent and had claimed that she was put in possession of the property in question not by the respondent as tenant but by the builder as the purchaser of the property and had substantiated her claim by producing a possession letter dated 31st January, 1995. She had also submitted that the alleged rent receipts produced by the respondent were not receipts of rent but receipts of the loan returned by her to the respondent. The learned Rent Controller instead of framing an issue to determine whether their existed a relationship of tenant and landlord between the petitioner and the respondent and giving the parties an opportunity to adduce the evidence and present their arguments on this issue was impressed by the fact that the respondent had produced the lease deed of the property in his name and the petitioner had failed to produce any document of title and, therefore, passed an order under section 16(1) of the Sindh Rented Premises Ordinance, 1979 directing the petitioner to deposit the arrears and the future rents. Apparently, she decided the issue of landlord in a summary manner on misconception that the words "ownership" and "landlordship" are synonymous to each other and the words "occupant" and "tenant" are also synonymous. She failed to appreciate that legally each of these words could carry different. Meanings and, therefore, in every case a person in possession of premises owned by some other person will not necessarily be his tenant. The learned Rent Controller also failed to verify the petitioner's claim that the tenancy agreement produced by the respondent was fake and fabricated on which the petitioner's signature had been allegedly forged. She also did not give any need to the petitioner's contention that the alleged rent receipts produced were not receipts of rent, but receipts of repayment of loan and without any evidence whatsoever accepted the same as rent receipts. The petitioner's case is fully covered by the judgment of the Honourable Supreme Court in the case reported in 1992 SCMR 1149 in which the Honourable Supreme Court has held as under:- "S-16(1) ---Relationship of landlord and tenant---Denial of---Tenant having denied relationship of landlord and tenant, Rent Controller instead of framing and deciding issue relating to the relationship of landlord and tenant between the parties passed the rent order directing tenant to deposit arrears of rent---Validity--- Rent Controller before passing rent order, should have framed issue relating to the relationship of landlord and tenant and decided the same---Rent order being not warranted by law, order of ejectment passed due to noncompliance of rent order was also invalid."
11. This case is also fully covered by a judgment of a learned Single Judge of this Court in the case of Abdul Hameed and another v. Haji Muhammad Javed (1999 MLD 3031) wherein it was held as under:-- ' "I have considered the arguments advanced before me and also perused the case-law. In the instant case from the pleadings of the parties it is clear that the claim of the respondent that he is owner of the disputed premises and also landlord of the same and that the appellants are his tenant was denied by the appellants in clear words. The appellants in their written objections have specifically pleaded that their exists no relationship of landlord and tenant between the parties and the Rent Controller had no jurisdiction in the matter. In such circumstances adjudication of this issue made by the Rent Controller had no jurisdiction in the matter. In such circumstances adjudication of this issue made by the Rent Controller, while dealing with an application under section 16(1) of the Ordinance, in a summary manner was not warranted by the law. The issue of existence of relationship of landlord and tenant cannot be decided by the Rent Controller tentatively or in an arbitrary manner, without affording full opportunity to both the parties, to prove their respective contentions. In the instant case the perusal of the record and proceedings of the Rent cases reveals that the Rent Controller decided the issue of landlord and tenant in a summary manner and on a wrong presumption that words "ownership" and "landlordship" are synonymous to each other and word occupant and tenant are also synonymous. This may be so in the mind of an ordinary person but legally each of these words would carry its different meaning. Therefore, it cannot be presumed that in each case a person in possession of a premises owned by some other person will be his tenant.
' In the facts and circumstances of these cases when there was a serious dispute about the existence or non-existence of landlord and tenant relationship between the parties the Rent Controller should have afforded full opportunity to both the parties and after recording their evidence he should have decided this issue, along with other issues at the time of final disposal of the case. It would have been much appropriate for the Rent Controller to have decided the application under section 16(1) of the Ordinance pending for disposal, along with the main case.
' In view of the above position when there is no legal and proper findings on the issue of relationship of the landlord and tenant between the parties the impugned orders are liable to be set aside."
12. As a consequence of the above discussion, it is clear that the order passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979 directing the petitioner to pay the arrears and future rent without deciding the main issue of relationship of landlord and tenant between the parties and the order striking off defence of tenant under section 16(2) are nullity in the eye of law, therefore, the District Judge should have condoned the delay of seventeen days m filing the appeal and should have decided the case on merits.
13. In view of the above discussion, I would allow this petition and set aside the orders of the learned Additional District Judge and the orders under sections 16(1) and 16(2) of Sindh Rented Premises Ordinance, 1979 passed by the learned Rent Controller and remand the case to the learned Rent Controller with the directions to proceed with, the case by first deciding the issue whether there exists any relationship of landlord and tenant between the respondent and the petitioner after giving the parties proper opportunity to adduce evidence and present arguments on' this issue and hear the application under section 16(1) along with main case.
14. This petition is disposed of in the above terms.