' SALMAN ANSARI, J.--- This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, has been filed by the petitioner above named against the impugned orders passed by the respondents Nos.2 and 3 and remand the case back to record the evidence after written statement is permitted to be filed by the petitioner.
2. The respondent No,1, Messrs Pakistan National Shipping Corporation had filed an application under section 8 of the Sindh Rented Premises Ordinance, 1979 for fixation of fair rent of the premises being Rooms Nos.330 and 331, 3rd Floor, Muhammadi House, I.I. Chundrigar Road, Karachi, at the rate of Rs,15 to 45 per sq. Feet by the petitioner who was at that time was paying rent at the rate of Rs,398/93(037 Paisa per sq. Feet) for the same premises. This application was allowed ex parte due to the non-appearance of the petitioner/opponent during the procee4ings hence after service being held good the matter was accordingly decided by order, dated 23-8-2002. Subsequently, on 26-11-2002 an application under section 19 of the S.R.P.O., 1979 was moved by the petitioner/opponent for setting aside the said order by which application was dismissed for non- prosecution on 16-8-2004. Thereafter on 27-5-2006 an application for restoration was moved which was dismissed as "instant application is filed after expiry of two years time for restoration of application dated 29-11-2006 which was dismissed for non-prosecution on 16-8-2004" and the learned Rent Controller while relying upon 2004 SCM R 1576 had dismissed the application by his order, dated 23-12-2006, hence this petition has been filed on 12-7-2008 against all the orders that have been impugned in the present petition on the grounds that the Rent Controller had fixed the rent arbitrarily and the petitioner was not aware of the proceedings before Rent Controller and it was not disclosed by the Rent Controller, how the application was time-barred as such the orders passed by the two Courts contradict each other and Appellate Court had come to the conclusion that the application for restoration was still in time then the same should have been remanded back. The learned counsel has relied upon 2000 SCM R 472.
3. Learned counsel has further argued that the two Courts below had failed to appreciate that limitation for dismissal of application for non-prosecution in rent matter does not provide any limitation and as such under Article 181 where three years limitation for restoration is provided.
Further the person who has filed application under section 8 of the S.R.P.O., was not competent to file application had not the authority to do the same. Learned counsel has placed reliance upon Habib Bank Limited v. Zelins Limited and another 2000 SCM R 472, Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684, Mamdot v. Messrs Ghulam Nabi Corporation Ltd. Lahore PLD 1971 SC 550, National Bank of Pakistan and others v.
Karachi Development Authority and others PLD 1999 Kar. 260 and Yousuf v. Fazal Karim 1983 CLC 2219.
4. On the other hand, it has been argued by the learned counsel for the respondent that after passing of an ex parte order the learned Rent Controller cannot under section 19 of the S.R.P.O., 1979, rescind his own order. Learned counsel has further submitted that the petitioner has shown gross negligence in the proceedings and he is not entitled to any concession in the case. The order of the Rent Controller has been passed in accordance with the provisions of section 8 of the S.R.P.O., 1979, hence would require no interference, even otherwise the rent order passed on 23-8-2002 and the second application for setting aside the order was finally moved on 27-5-2006 after a lapse of more than three years, hence under no provisions of law the matter can be restored and the learned counsel for the respondent has relied upon Mrs. Tahira Dilawar Ali Khan v. Mst. Syeda Kaneez Sughra and 2 others PLD 2007 Kar. 50 on the ground that no constitutional petition can be entertained against the orders passed under the Sindh Rented Premises Ordinance, 1979 and Muhammad Shahbaz v. Muhammad Alam and others 2004 SCM R 1576.
5. Having heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent. In this case application under section 8 of the S.R.P.O., 1979 was allowed by the VIIth Senior Civil Judge and Rent Controller Karachi South by an order passed ex parte to which the petitioner had filed an application under section 19 of the S.R.P.O., 1979 on 26-11-2002 for setting aside the order which application was dismissed for non-prosecution on 16-8-2004 to which restoration application was moved on 27-5-2006 which was also dismissed on 23-12-2006 and hence it was filed after more than two years for restoration of a restoration application which was passed fqr setting aside the order of Rent Controller on 16-8-2004, hence time calculated from the date 26-11-2002 when the first order was passed it was more than three years when the second application was moved which was also dismissed by the order dated 23-12-2006 and the Appellate Court subsequently dismissed the same on the ground that the application dated 16-8- 2004 was filed after expiry of two years and hopelessly time-barred.
6. The learned counsel for the petitioner had in the first instance argued on the point that the application under section 8 of the S.R.P.O., 1979 was not filed by a person possessing requisite authority as the same had been signed by Arif Saeed, Secretary Pakistan National Shipping Corporation, Karachi. Case-law relied upon in my opinion would not apply to the present case as I find that this issue would have to be settled by the Rent Controller, where the petitioner had failed to make an appearance and raising this question at this stage would not be the proper forum to decide the issue, nevertheless I do not find any error in filing of application under section 8 of the S.R.P.O., 1979, by the Secretary, P.N.S.C., Karachi would be according to the authority given to the said officer. Secondly, on the point of limitation the learned counsel has relied upon 1983 CLC 2219, that the limitation for restoration of appeal under section 21 of the S.R.P.O., 1979, "specific Article in Act applicable to applications for restoration of appeal not present same to be filed within a reasonable time equivalent to period prescribed in residuary Article 181 (three years)".
7. In the citation referred to, the facts given are obviously different from the present matter where the Advocate was confined to bed for more than four months and even at the time of filing his personal affidavit for restoration of the rent appeal he was advised not to attend work. No such ground has been shown by the learned counsel in his restoration application. In 1992 M LD 1682 (Karachi), relied upon by the learned counsel for the applicant it was found that office due to mistake had not pointed out the fact that the notice to the Advocate for the appellant had returned unnerved, hence the said citation would not apply to the present case where the reason given by the learned counsel for his non-appearance being that he had inadvertently missed one date i,e, 22-4-2004 "thereafter as the Presiding Officer was on leave the matter was not attended and on 16-8-2044 when this Honourable Court was pleased to dismiss the application under section 19 of the Sindh Rented Premises Ordinance, 1979". The order dated 16-8-2004 has been signed by the Judge of the Court himself and not by any link Judge. Even otherwise in the present case in my opinion non-appearance of the party would amount to an act of gross negligence and shows complete lack of interest on part of one of the parties therefore, in my opinion, the learned Appellate Court had rightly come to the conclusion that the appellant had failed to show bona fides for remaining absent for a period of more than two years after dismissal of his application for setting aside the ex parte order for non-prosecution finding no reason for interference in order that was first passed way back on 23-8-2002 and now has been challenged in writ petition filed on 12- 7-2008, on which the learned counsel for the respondents has relied upon Mrs. Tahira Dilawar Ali Khan v. Mst. Syeda Kaneez Sughra and 2 others PLD 2007 Kar. 50 in which it has been held as under:--- "By conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the Legislature in its wisdom seems to have tried to shorten the span of litigation in rent cases.
Interference by High Court under Article 199 of the Constitution in judicial orders passed by the Tribunals, merely on the ground that another view of the matter was possible, was not to serve any other purpose but would add the misery of prolonged litigation between parties and defeat the spirit and object of in statute."
8. Hence with due respect to the case-law cited by the learned counsel for the petitioner which in view of the above discussion the findings thereof are found not applicable to the present case but at the same placing reliance of the case-law as discussed above cited by the learned counsel for the respondents, I have arrived at the conclusion that this petition has no merit and is therefore, dismissed in limine.