' SHAHID ANWAR BAJWA, J.--- With consent of the parties this petition was finally heard at Katcha Peshi stage.
2. Petitioner in this case is a tenant since 1960 or so in respect of the area admeasuring 2830 sq. Ft.
On ground floor of P.I.D.C. House, Dr. Ziauddin Ahmed Road. The rent was last increased in 1982 and thereafter there had not been any increase in rent. Application was filed in April, 1987 for fixation of fair rent at the rate of Rs.10 per Sq. Ft. From the date of the application. The trial Court vide order dated 14-6-2001 allowed the application and determined fair rent at the rate of Rs.10 per sq.Ft. With effect from the date of filing of the rent case. Being aggrieved by the order of the trial Court the present petitioner filed appeal before the appellate Court. On 19-11-2004 the appeal was dismissed due to absence of the counsel for the present petitioner. Thereafter present petitioner appellant filed an application for restoration on 31-10-2005. After this application was filed, an application under section 5 of the Limitation Act was filed on 28-1-2006. In this application it was prayed that delay, if any, in filing the application for restoration may be condoned. In the affidavit it was submitted that Mr. Khalid Latif, Advocate for the present petitioner fell seriously ill and therefore, he could neither appear himself nor inform the petitioner about his non-appearance. It was during this period that order dated 19-11-2004 was passed. The petitioner did not know about this order because he had received no intimation regarding prolonged illness of his former Advocate.
Learned counsel for the petitioner submitted that application for condonation of delay was filed by way of abundant caution because it is Article 181 of the Limitation Act, which is attracted to such a like situation and not Article 168 and therefore, his application for restoration was not barred by time. In this regard he relied upon Yousuf v. Fazal Karim 1983 PLC 2219 and Afzal Begum and another v. Y.M.C.A. Through its General Secretary PLD 1979 SC 18. He further submitted that the law favours adjudication on merits rather than on technicalities. Learned counsel for the private respondents submitted that office of the petitioner is located in the same premises where the premises in occupation of the tenant is located, and for a long time the petitioner did not bother to find out about the case. In such situation, such an indolent person is not entitled to any relaxation by the Courts. He relied upon Zulfiqar Ali v. Lal Din and another 1974 SCM R 162 and Sher Muhammad v.
Said Muhammad Shah 1981 SCM R 212. Learned counsel referred to his counter-affidavit filed in the Court below where it was stated that the petitioner was informed by the landlord about dismissal of the appeal.
3. I have considered the submissions made by the learned counsel. I have also gone through the record as well as the case-law.
4. Learned counsel for the petitioner contended that Court should decide controversies on the basis of merits rather than technicalities. I cannot agree more with him. I do not think that limitation is a technicality because limitation confers very valuable rights as has been held by the Supreme Court in Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462. Therefore, limitation is not a technicality but it confers very valuable rights.
5. In Zulfiqar Ali's case which was the matter relating to an application under the Rent Restriction Laws, appeal was dismissed. Subsequently an application for restoration of the appeal was filed.
That application was dismissed on merits and it was observed that mere fact that the litigant has engaged the counsel to appear on his behalf does not absolve him of his responsibility. It was further held that it is duty of the litigant as that of the counsel engaged by him to see that litigation was properly and diligently prosecuted. If the counsel engaged is lacking in a sense of responsibility to the Court, it is he who should suffer and not the other side. Sher Muhammad's case is materially on the same point. No cavil with this proposition.
6. However, order of the appellate Court below in its deciding para reads as under:--- "It reveals that the above said F.R.A. Was dismissed on 19-11-2004 while the present application has been filed on 31-10-2005 and the explanation given in the application for delay is the illness of the counsel, but no any medical certificate has been filed along with application nor even the affidavit of previous counsel is filed. So also application under section 5 of the Limitation Act is not mentioning the delay of each and every date. The responsibility of litigant did not come to an end, as the litigant is required to pursue his case with reasonable diligence and care and supposed to establish contact with his counsel and remained in touch with him in order to find out the result of the case, plea setup for the delay in filing this application did not constitute a valid ground for condonation of delay nor the same is supported with any documentary proof. The application is hopelessly time-barred, accordingly dismissed. So also the application under section 5 of the Limitation Act is dismissed with no order as to costs".
7. Reading of the above para indicates that Court first noticed the plea setup for the delay in filing this application did not constitute a valid ground for condonation of delay nor the same is supported with any documentary proof. The application was held to be hopelessly time barred and therefore, dismissed so was the application under section 5 of the Limitation Act dismissed without any order as to costs. Perusal of the above order indicates that condonation application was dismissed because no valid ground was given and restoration application was dismissed because it was held to be time barred. Learned counsel for the petitioner placed heavy reliance on Yousuf's case (supra). The facts of that case were that appeals were dismissed for non-prosecution and applications for their readmission/restoration were filed. In one case the appeal was dismissed on 8-9-1981 and application for restoration was filed on 12-1-1982. The High Court firstly held that although the preamble of the Limitation Act mentions that object of the Act is to consolidate and amend law relating to limitation of suits, appeals and certain applications to Courts a close look on various provisions of Act would show that the provisions of the Act are not restricted in their application to proceedings before the Courts alone. Section 29 of the Act was also noticed where it is provided that where a local or special law provides a period of limitation different from the period prescribed there for in the first schedule to the Act then only some of the provisions of the Act apply but where the period of the limitation prescribed by the special or local law is the same as prescribed in the first schedule of the Act then whole of the Act becomes applicable. Thereafter contention regarding applicability of Article 168 or 181 to such a situation was examined and the following was observed:--- "I will now examine the contention whether Article 168 of the Act applied to an application for restoration of an appeal filed under the Ordinance which was dismissed for default. The Ordinance is admittedly a special as well as a local law within the meaning of section 29 of the Act. It is not disputed that under the Ordinance, the period of limitation prescribed for filing an appeal before this Court is different from the period prescribed for filing an appeal before this Court is different from the period prescribed therefore, in the 1st Schedule to the Act. In these circumstances, in my humble view only those provisions of the Act which are mentioned in clause (a) of subsection (2) of section 29 of the Act will be applicable and therefore, Article 168 of the Act which prescribes the period for filing of an application for restoration of appeal dismissed for nonappearance will not be attracted. However, in absence of any specific Article in the Act being applicable to such applications, the same should be filed within a reasonable time which in my view should be equivalent to the period prescribed in the residuary Article 181 of the Act, as three years. While still on this point I may mention here the case of Afroze Begum v. Y.M.C.A. (1) where the Supreme Court while considering the applicability of Article 169 of the Act as application made for rehearing of an appeal heard ex parte under section 15(4) of the East Pakistan Urban Rent Restriction Ordinance, 1959, held that this Article did not apply to such application which will be governed under Article 181 of the Act. I, therefore, hold that the two applications C.M.A. No.6 of 82 in F.R.A. No.500 of 80 and C.M.A. No.173 of 82 in F.R.A. No.504 of 80 filed for restoration/re-admission of appeals are within time. Having held the applications for restoration/re-admission of appeals within time I will not proceed to examine these applications on merits."
8. A reference in this judgment had been made to Afzal Begum's case. In that case it was observed as under:--- "Even otherwise Article 169 of the Limitation Act is not in terms attracted to this case. It may be seen that Article 164 of the Act is applicable to an application by a "defendant" for an order to set aside a "decree" passed ex parte and the prescribed period of limitation of thirty days starts running from the date of the "decree" or, where the "summons" was not duly served, when the applicant has knowledge of the "decree". In the context it seems that this Article is limited to suits. Likewise under Article 169 of the Act the limitation for an application for rehearing of an appeal heard ex parte is prescribed as thirty days from the date of "decree" in appeal, or where notice of the appeal was not duly served, when the applicant has knowledge of the "decree". The third column of this Article shows that if is limited to an appeal from a decree and it has no application to an appeal heard ex parte from an appellate order to distinguish it from a decree".
9. It was further observed while concluding as under:---- "In the light of the above discussion I am of the considered opinion that the ejectment order dated 9th of April, 1974 was passed ex parte by the High Court in appeal under section 15(4) of the Urban Rent Restriction Ordinance, 1959. It was not a decree as such and therefore, Article 169 of the Limitation Act was not at all applicable to the application made by the petitioners to set aside the ex parte order and rehearing of the appeal. It was governed by the residuary Article 181 of the Limitation Act and the application for rehearing of the appeal could have been made within three years. The cause of action had accrued to the petitioners on the passing of the ex parte ejectment order on 9-4-1974 and therefore, the application filed by them in the High Court on the 23rd of February, 1978 for rehearing of the appeal was clearly barred by time.
10. The above observations makes it very clear that an order passed by the Rent Controller is not a decree and therefore, in matters of appeal against it, for restoration/rehearing of the appeal dismissed for non-prosecution, the applicable Article is 181. Therefore, application for rehearing of the appeal filed before the Appellate Court was not time barred. That was probably the reason that in application for condonation of delay words "if any" had been clearly stated. Since the Appellate Court has not gone into merits of the application for rehearing of the appeal. I, therefore, set aside the impugned order dated 2-11-2006 and remand the matter to the Appellate Court. The Appellate Court shall first decide the application for restoration of appeal within 30 days of the date of receipt of this order and thereafter shall decide the main appeal, if application for restoration is allowed by it, within 30 days thereafter. This Constitution Petition is allowed in the above terms.
However, in peculiar circumstances the parties are left to bear their own costs.