' ABDUL HAYEE KURESHI, J.-After hearing Mr. Muzaffar Hassan and Mr. Mirza Abdul Rashid for the appellant and Mr. S. M. Sadiq for the respondent we had on the conclusion of the case dismissed this Letters Patent Appeal. The reasons for such order presently follow.
2. The appellant Messrs Muqtada Khan Iqteda Khan (hereinafter referred to as the tenant) is in occupation of a shop in a building known as fazal Ghulam Hussain Building on Survey Sheet No, S. B. 5/25 in Elphistone Street, Karachi. The premises is owned by respondent Allah Rakhi (hereinafter referred to as the landlord). The monthly rental is Rs, 107.50. On 10-1-1964 the landlord filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, hereinafter referred to as the Ordinance. The ejectment was sought on the ground of default in payment of rent and subletting. The tenant filed a written statement contesting the case. After the framing of issues evidence was recorded and by an order dated 11-2-1966 the Ilnd Civil Judge, first Class, Karachi, granted the landlord's application for eviction and directed the tenant to make over vacant possession to the landlord within two months. The tenant then filed an appeal in the Court of District Judge, Karachi. This appeal (Civil Appeal No, 290/1965) ultimately came up for hearing before Mr. Ghulam Hussain S. Ansari, Additional District Judge, Karachi, who by judgment dated 14.10-1966 upheld the order of the learned Civil Judge and dismissed the appeal. A second appeal (lind Appeal No, 365/1967) was then submitted in the erstwhile West Pakistan High Court on 13-12- 1966. This second appeal was heard by the learned Single Judge, who, by a judgment dated 5-4- 1971, came to the conclusion that the second appeal having been filed after the statutory period of 30 days, as contained in section 15(4), . Of the Ordinance was not maintainable as it was time barred. However, by the same judgment the learned Single Judge came to the conclusion that a case for eviction of the appellant had not been made out. The tenant (appellant) filed an application for grant of Certificate under clause 10 of the Letters Patent and the Certificate prayed for was granted on the ground that "important points of law are involved".
3. At the time of hearing it had become necessary to determine whether the second appeal filed by the tenant was maintainable. There is no contest on the point that the judgment of the first Appellate Court was delivered on 14-10-1966 and the certified copy was supplied on 4-11-1966. This second appeal was filed on 13-12-1966 viz. After 38 days. Section 15(4) of the Ordinance prescribes a period of 30 days for filing of a second appeal. An application under section 5 of the Limitation Act had been submitted in the second appeal on 29-5-1967 viz. After 5( months of the filing of the appeal praying for condonation of delay. An affidavit was filed in support of the prayer wherein it was stated that the delay in filing the second appeal arose "on account of a bona fide mistake in believing that the time for its filing was the same as in the case of civil second appeals". It was further stated that this mistake had arisen as the period for filing the 1st Appeal from the order of the Controller to the District Judge is the same as provided for Civil First Appeals under Article 152 of the Limitation Act. In other words, the ground for condonation was that since appeals under subsection (1) of section 15 of the Ordinance have to be filed within such time as is allowed for filing of Civil Ist Appeals, a mistake had arisen in the mind of the learned Advocate in regard to limitation for second appeals under section 15(4) of the Ordinance which, according to him, was the same as for civil second appeals.
4. Mr. Muzaffar Hassan, the learned Advocate for the appellant, has raised the following contentions:-
(i) That there was an incongruity in subsection (4) of section 15 of the Ordinance inasmuch as the words 'Appellate Authority appointed by the Government under clause (a) of subsection (1)' required to be amended when subsection (1) of section 15 of the Ordinance was amended by substitution in 1965.
(ii) That due to such incongruity the period of 30 days for filing a second appeal under section 15(4) of the Ordinance has as of necessity to be read as 90 days in consonance with the period provided for filing civil second appeals, or that no period existed for filing such appeals under section 15(4) of the Ordinance.
(iii) That section 5 of the Limitation Act would apply to appeals under section 15(4) of the Ordinance and good cause had been shown for condonation.
5. In short it would appear that the controversy in this case is whether the omission to make consequential amendments in subsection (4) of section 15 of the Ordinance after the amendment of subsection (1) of the said section has affected the provisions regarding limitation for filing an appeal under subsection (4) of section 15. In that context it is in initially necessary to examine the provisions of subsection (1) of section 15 in juxtaposition with subsection (4) of the said section.
West Pakistan Urban Rent Restriction Ordinance was enacted on 23-2-1959 and subsection (1) of section 15 then read as follows:- "15. Appeal.---(1) (a) Government may by a general or special order, by notification, confer on such District Judges as it thinks fit, the powers of appellate authorities for the purposes of this Ordinance, in such area, or in such classes of cases, as may be specified in the order.
(b) Any party aggrieved by an order passed by the Controller may within thirty days from the date of such order prefer an appeal in writing to the Appellate Authority having jurisdiction."
6. Subsection (1) of section 15 was amended by Ordinance No, XXI of 1966, under the same title except by adding the word "Amendment" on 11-5-1966. The original subsection was substituted as follows:- "(1) Any party aggrieved by an order made by the Controller under section 4, section 10, section 12, or section 13, may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is, situated.
(1-A) On such appeal being preferred, the District Judge may himself hear it or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated.
(1-B) The District Judge may recall an appeal made over by him to an Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection (1-A); provided that the District Judge shall not so recall or make over an appeal which is part beard."
7. Subsection (4) of section 15 of the Ordinance reads as follows:- "(4) Any party aggrieved by an order passed on appeal by the Appellate Authority "appointed by the Government under clause (a) of subsection (1), and if an Appellate Authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may within 30 days from the date of the order of Appellate Authority or, as the case may be, of the Controller, prefer an appeal in writing to the. High Court and the decision thereof shall be final."
8. Mr. Muzaffar Hassan has contended that initially an appeal against the order of the Rent Controller lay before the "Appellate Authority appointed by the Government" under clause (a) of subsection (1) but by the amending Ordinance of 1966, it was provided that appeals were to be filed before the District Judge. He pointed out that despite such change in the venue for filing the appeal against the Controller subsection (4) was not amended so that it is an incongruity patent on the face of the statute. His next contention is that since subsection (4) contemplates a second appeal of the nature contemplated in the Code of Civil Procedure the limitation for such second appeal should be in accordance with the provisions of the Schedule contained, in the Limitation Act. The learned Advocate did not cite any case-law directly touching the point. He has however, referred to the cases of Mst. Pana Bibi v. Mahala and others (1), and the case of N. Q. Industries v.
Mrs. Bapai Kaikhusro (2). The first case is the judgment of Bhide, J., and the second is of Noorul- Arifin, J. In the first case, the Lahore High Court was hearing an appeal under section 47 of the Guardians and Wards Act. The said Act is silent both in regard to the procedure to be {{FOOT NOTE}}
(1) AIR 1928 Lab. 488 (2) PLD 1958 Kar. 598 {{FOOT NOTE}} ' followed in respect of appeals and the period of limitation for the same. In such circumstances, Bhide, J., rightly came to the conclusion in the following words:- "There are, however, various allusions to the Civil Procedure Code in the Guardians and Wards Act, which suggest that the procedure laid down in that Code was intended to be followed: (see e. g.
Sections 43 and 48). It was held by Sir Charles Roe, Chief Judge of the Punjab Chief Court in Muhammad v. Muhammad (1898) 7 P R 1898 that the general provisions of the Civil Procedure Code as regards procedures are applicable to cases under the Guardians and Wards Act.
' Moreover section 141, Civil Procedure Code lays down that the procedure provided by the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. It has been held by their Lordships of the Privy Council in Thakur Prasad v.
Fakirullah (1895) 17 All. 106 (at p. 3), that the proceedings to which this section applies are "matters" in the nature of suits such as proceedings in probates, guardianship and so forth, etc. It seems thus clear that the procedure with respect to suits will apply to the proceedings in guardianship cases. It was urged that section 141, Civil Procedure Code only refers to the procedure in respect of suits. But it seems to me that the word "suit" is used here in a comprehensive sense, so as to include appeals, which are only continuations of suits cf. r. At'..Hayya v. Venkata Seetaraml Chandra (1913) 39 Mad.
195 and the procedure in respect of appeals in the Code must be taken to given appeals arising out of any proceedings in a Court of civil jurisdiction, in the absence of any statutory provision to the contrary."
9. It would appear that section 141 of the Code of Civil Procedure was held to be applicable because section 47 of the Guardians and Wards Act was silent in regard to procedure and limitation.
10. In the second case of N. Q. Industries the question that arose before Noorul Arifin, J., was in regard to the applicability of the provisions of the Code of Civil Procedure to proceedings before the Controller. The learned Judge in paragraph 5 of the report came to the conclusion that the Controller was not a Civil Court and therefore, the Code of Civil Procedure would only apply to the extent to which it is made expressly applicable. The sole question in that case was whether the Controller could set aside an ex pane order of eviction. In that case Noorul Arfin, J., treated the second appeal under section 15(4) of the Ordinance and allowed the appeal in spite of the same being barred by time holding that section 5 of the Limitation Act would apply to the proceedings before the High Court in second appeals under section 15(4) of the Ordinance. Mr. Muzaffar Hassan has mainly relied on this case for the purpose of determining the applicability of section 5 of the Limitation Act to proceedings under the Ordinance. However, on the point which is for actual discussion this case is of little assistance though reference would again be made to this decision when the point of applicability of section 5 of the Limitation Act will be considered in the latter part of this judgment.
11. There is no controversy on the point that the Controller is not Civil Court and that the Ordinance has created a special jurisdiction and even the appeals under section 15 are in the nature of special appeals.
' In fact, the Code of Civil Procedure is not even applicable to proceedings' under the Ordinance.
12. Mr. S. M. Sadiq has on the other hand, contended that despite subsection (4) of section 15 not having been amended the words "Appellate Authority appointed by the Government under clause
(a) of subsection (1) as appearing in the said provision should be read as "under subsection (1)".
The learned Advocate has contended that if the provision is not read with such amendment it would even tend to destroy the right of appeal provided by section 15(4) of the Ordinance. That in fact would be the obvious result because if appeals under subsection (1) of section 15 are not heard by the "Appellate Authority appointed by the Government under clause (a) of subsection (1)" there is no question of an appeal under section 15(4) of the Ordinance being maintainable. The consequence will be that the benefit of an appeal conferred by the Legislature would stand destroyed. Beneficial or remedial Statutes have always to be interpreted broadly and in a manner as would advance the remedy and curb the mischief. In such context even the intention of the Legislature gains paramount importance. In the case of Sarfaraz Khan v. Crown (1), Kayani J. (as he then was), reproduced the following passage from Maxwell on the Interpretation of the Statutes (Third Edition, page 319) with approval:- "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship, or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence; and for that proposition several authorities are cited."
13. In the case of Woking Muslim Misson etc. v. Crown (2), Muhammad Munir, C. J., was interpreting section 99-B of the Code of Criminal Procedure and in that context he observed as follows:- "Though a Court of law has nothing to do with the reasonableness or unreasonableness of a statutory provision, the reasonableness or otherwise of the interpretation is relevant to interpret what the Legislature has said, and in determining either the general object of the Legislature or the meaning of its language in any particular passage it is obvious that the intention which appears to .Be most in accord with convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be true one."
14. In the case of Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty (3), the question was in regard to interpretation of some provisions of Estate Duty Act, which, it must be pointed out, is a fiscal statute. In that case of Hamoodur Rahman, J. (as he then was), had expressed the opinion in the following words:- "Although I would be prepared to concede that in certain exceptional circumstances a Court of law, which is concerned only with the interpretation of legislative measures, may interpret a legislative measure by supplying obvious omissions of a word or two but, with great respect I doubt whether this power can be extended even to {{FOOT NOTE}}
(1) PLD 1950 Lail: 384 (2) PLD 1956 FC 209
(3) PLD 1962 SC 335 {{FOOT NOTE}} ' meet a case for which the Legislature has clearly and undoubtedly not made a provision or where the words of the legislative measure as enacted are capable of being given a perfectly good sense and meaning, particularly in a taxing statute."
' He came to the conclusion that in a statute of the nature of Estate Duty Act the statute has to be interpreted according to its natural meaning and if a cure is required the same can be supplied by legislation and not by benevolent construction by the Courts. In the same context Kaikaus, J., doubted the opinion of Hamoodur Rahman, J., and expressed himself as follows:- "I find brother Hamoodur Rahman feels doubt as to whether we could modify the language of the relevant provisions of the Estate Duty Act. The rule which I regard as supreme in matters of interpretation of statute is that we find out the intention of the Legislature. To this rule everything else gives way. The sole function of the Courts while interpreting statutes is to find out the intention of the Legislature. If that intention is clear there is nothing further to be done. The function of the Court has ended by that discovery. The remaining rules of interpretation will apply only if the intention is not clear. Of course intention does not mean intention at the back of the mind of the Legislature. It means intention in the words which it used. What did the Legislature mean when it said this? That is the question we ask and when we know the answer there is no further task for us. If the Legislature has not sufficiently expressed itself we have no duty to act for it, for we are concerned with what it lays down and not with what it has only in mind, but once it has been articulate enough we do not more than give effect to the intention that it has succeeded in expressing. That intention may be expressed in faulty language, in extremely faulty language. This is of no consequence, as long as there is no doubt as to the intention. A draftsman's mistake as long as it relates to the form in which the legislative intent is expressed and not to the substance of it is of no effect. Of course once an element of doubt as to the intention of the Legislature enters the field considerations otherwise irrelevant may all become relevant.
' I have stated my own views, but turning to authority, I do not find it laid down in any case that slips of the draftsman are incurable. On the other hand, we find a good deal in the commentaries and judgments to the effect that draftsman's mistake cannot be permitted to nullify the law. I may just quote from Maxwell where it is said that 'where the main object and intention of a statute are clear it must not be reduced to nullity by the draftsman's unskillfulness or ignorance of law'. I do not see any reason why this was not applicable to the case before us. The contention before us too was that the statute was nullified by the omission to make mere consequential amendments. It was never even contended that the intention of the Legislature was not clear for there was no room for such a contention. As long as the slip of the draftsman relates not to the subject-matter but to the form in which the law is expressed, there is no objection of its being disregarded."
16. The judgment proposed to be delivered by Kaikaus, J. Was the majority judgment in the case. In this case, even a fiscal statute was interpreted in a manner as would confirm to the intention of the Legislature. On the point of imperfection in statutes to which Kaikaus, J., had made a reference in the above-quoted passage from the judgment of Nawabzada Amir Muhammad Khan the words of Denning, L. J., in the case of Seaford Court Estates Ltd. v. Asher (1), are also illuminating. He has expressed as follows:- "It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which save rise to it and of the mischief which it was passed to run away, and then he must supplement the written word so as to give 'force and life' to the intention of the Legislature."
16. Maxwell on the Interpretation of Statutes, XII Edition, has also dealt with the topic of modification of the language to meet the intention. The following passage may be reproduced with an advantage:- "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. They may be done by departing from the rules of grammar, by giving unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used."
17. On a consideration of the above case it would appear that reading words in a statute when the same do not actually exist in it is ordinarily no permissible because thereby the Courts may be accused of usurping the functions of the Legislature. It is however, permissible to read such word as do not actually exist in the statute if such words translate faithfully the intention of the Legislature or it is necessary to read such words in the statute to avoid the risk of reducing the statute to absurdity or when the effect of a beneficial provision would be destroyed by clinging to the ordinary meaning of the terms. It would seem that their Lordships of Supreme Court have even interpreted fiscal statutes in like manner so that the true meaning and intention of the Legislature comes to prevail. What is more, that a statute has to be interpreted in such a manner as would at least maintain, nay advance the remedy. It is patent that the Legislature intended to provide a further or second appeal against the order passed under subsection (1) of section 15 of the Ordinance, regardless of the order being passed by the District Judge or Appellate Authority. If the Legislature intended to do away with this remedy it would have comforted itself by deleting subsection (4). Subsection (5) of section 14 also points to the retention of such remedy as it provides that the order of the High Court {{FOOT NOTE}}
(1) (1949) 2 All. 164 {{FOOT NOTE}} ' under subsection (4) would acquire finality and immunity from being questioned. On the other hand, if we are to agree with Mr. Muzaffar Hassan, the result would be that a right of further appeal would be destroyed, and an existing provision would stand redundant.
18. We pointed out to Mr. Muzaffar Hassan that if we were to accept his contention the second appeal filed by him in the High Court would become not maintainable. The learned Advocate then stated that subsection (4) should be construed in a manner that this appeal is treated at par with ordinary Civil Second Appeals. The arguments were indeed mutually destructive for if we agree with the learned counsel that the words "Appellate Authority" as used in the Ordinance originally stand deleted, we cannot substitute the same to protect legislative intent. We cannot hold that a remedy under subsection (4) of section 15 is still available. It would be a fallacy and lead to absurdity. We would additionally be violating the entire Ordinance which has created a special jurisdiction, a special venue, distinct from the ordinary jurisdiction of the High Court dealing with civil second appeals. By treating such appeals as civil appeals, we would be faced with the position that we would be treating the District Judge performing functions under subsection (1) of section 15 of the Ordinance as a District Judge performing functions under the Code of Civil Procedure as a Civil Court. Doubtless the District Judge does not enjoy that position while dealing with appeals under subsection (1) of section 15 of the Ordinance. Mr. Muzaffar Hassan then stated that in such a situation, remedy under subsection (4) of section 15 of the Ordinance may be construed as exercise of revisional jurisdiction under section 115 of the Code of Civil Procedure. We have not been impressed even by this argument on the same process of reasoning.
19. We have therefore, come to the inescapable conclusion that notwithstanding the draftsman's omission to amend subsection (4) of section 15 of the Ordinance to make it consistent with subsection (1), the remedy provided by the subsection could be retained by reading the words "Appellate Authority appointed by the Government under clause (a) of sub section (1)". That appears to be the only correct mode in the circumstances.
20. The next point that has been urged by Mr. Muzaffar Hassan is in regard to applicability of section 5 of the Limitation Act to second appeals under subsection (4) of section 15 of the Ordinance. Without doubt, the Ordinance is a special or local law. While section 5 of the Limitation Act confers a power to condone the delay in the institution of a cause the relevant provision relating to the applicability of section 5 in proceedings under a special or local law is contained in section 29(2) of the Limitation Act. This provision reads as follows:- "(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor 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 1, sections 9 to 18, and section 22 shall apply only in so far 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."
21. The provision has been interpreted by Chagla, C. J., of the Bombay High Court in the case of The Canara Bank Ltd. v. The Warden Insurance Company Limited (1). The conclusions are summed up at page 37 of the report in the following words:- "Therefore, the scheme of section 29(2) seems to be this. Section 3 is made applicable to all special or local laws which prescribed a period of limitation for any suit, appeal or application. Sections 4, 9 to 18 and 22 also apply unless the special or local law expressly excludes their application. Sections other than those just mentioned would not apply unless the special or local law expressly provided for their application. It is difficult to accept the contention that although section 29(2)(b) expressly precluded the application of section 5, we must hold that section 5 is applicable by reference to section 3."
22. It would seem even on a plain reading of section 29(2) of the Limitation Act that in cases where the special law itself provides a period of limitation different from the period prescribed therefor by the First Schedule to the Limitation Act, by force of section 3 of the said Act the time provided in the special law shall be deemed to have been prescribed in the Schedule to die Limitation Act and in that case only section 4, sections 9 to 18 and section 22 of the Limitation Act shall be deemed to apply unless the application is expressly excluded by the special law and the remaining provisions of the Limitation Act including section 5 of the same shall not apply. Section 15(4) of the Ordinance provides for a period of 30 days which period shall be deemed to have been provided by the First Schedule to the Limitation Act and further since section 5 is not mentioned among the applicable provisions of the Limitation Act it has expressly been provided that the same shall not apply. Mr. Muzaffar Hassan, the learned Advocate for the appellant has however, placed reliance on the case of Hatim Ali v. Mst. Zulekha Bibi and others (2), which is a judgment delivered by Wahiduddin Ahmad, J., as he then was. In that case the learned Judge was dealing with a question of delay in filing of a first appeal against the order of the Controller which is governed by subsection (1) of section 15 of the Ordinance. The period provides for such first appeal in the Ordinance G is one month. Such period therefore, is the same as is provided for filing of first appeals before the District Judge under the normal civil law. Patently, therefore, the provisions of section 29(2) of the Limitation Act were not attracted in that case because this provision would attracted only when the special law makes provision in derogation of the Limitation Act. The learned Judge in that case had considered the effect of section 29(2) of the Limitation Act and had come to the positive conclusion in paragraph 10 of the judgment that section 15 of the Ordinance does not provide a period of limitation different from the period prescribed by the First Schedule to the Limitation Act.
No doubt, the learned Judge made a mention of section 15 as a whole but we are in no doubt that he was considering the effect of section 29(2) of the Limitation Act qua the first appeals provided under section 15(1) of the Ordinance and not second appeals which are specifically provided by section 15(4) of the Ordinance. It would be profitable to reproduce paragraph 10 of the judgment which reads as follows:- "10. After careful consideration of the question involved in this matter I have come to the conclusion that under section 15 of the West {{FOOT NOTE}}
(1) AIR 1953 Bom. 35 (2) PLD 1964 Kar. 399 {{FOOT NOTE}} ' 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."
23. The next case relied on by Mr. Muzaffar Hassan was that of Mansoor Hussain v. Murid (1). The learned counsel has particularly relied on paragraph 6 in the said judgment in which it was stated that section 5 of the Limitation Act was applicable to appeals filed under the Ordinance. In this case, the learned Single Judge had relied on the case of Hatim Ali. Even in this case, the question was in regard to applicability of section 5 of the Limitation Act to appeals before the District Judge which are provided by section 15(1) of the Ordinance and to that extent the learned Single Judge of the Lahore High Court correctly relied on the proposition laid down by Mr. Justice Waheeduddin Ahmad. There was no question of delay in filing a second appeal before the High Court under section 15(4) of the Ordinance. The mere use of the words that section 5 of the Limitation Act applied to appeals under the Ordinance cannot be construed to necessarily meaning that the learned Judge had also considered the effect of section 15(4) of the Ordinance which patently provide a definite period of 30 days.
24. The next case referred to by the learned Advocate for the appellant is that of Syed Mehdi Hussain v. Syed Mahmood Alam (2). This case is also of no help to the appellant. The learned Judges of the Division Bench were in that case considering the question of applicability of section 5 of the Limitation Act to appeals and revisions under the Displaced Persons (Land Settlement) Act. It was urged before the Division Bench that since section 5 of the Limitation Act had not been specifically applied to such appeals and revision applications the result may be general hardship.
It was urged that this was a lacuna or a defect in the legislation for which perhaps it was further urged that the Courts may read the applicability of section 5 of the Limitation Act in such proceedings so that remedies advance. The learned Judges readily repelled such approach by stating that it was not for the Court to fill in the lacuna or remove defects in the enactment because these are properly matters which have to be looked into by the Legislature. The learned Judges in this case had considered the effect of section 29(2) of the Limitation Act and came to the same conclusions as the Bombay High Court in the case of Canara Bank.
25. The next case relied on by Mr. Muzaffar Hassan is the case of Evacuee Trust Board v. Muslim High School (3), a judgment of Tufail Ali A. Rahman, C. J. In this case, the second appeal under section 15(4) of the Ordinance was filed beyond time. An application had been made for condonation of delay. The learned Chief Justice made an observation to the following effect:- "The period of limitation is prescribed by section 15 of the Ordinance and section 5 of the Limitation Act does not therefore, in express terms apply."
' The learned counsel who appeared in that case however, referred to Hatim Ali's case but it was not pointed out to the learned Chief Justice that Hatim Ali's case dealt with condonation of delay in the filing of appeals {{FOOT NOTE}}
(1) PLD 1974 Lab. 300 (2) PLD 1970 Lah. 6
(3) PLD 1973 Kar. 618 {{FOOT NOTE}} ' under section 15(1) of the Ordinance and not under section 15(4) of the Ordinance. The learned Chief Justice on such premises expressed as follows:- "I am in respectful agreement with these observations and have nothing to add and accordingly hold that section 5 of the Limitation Act applies and that I have power to condone the delay."
26. With utmost respect for the learned Chief Justice it must be pointed out that the case of Hatim Ali was hardly of any application to second appeals under section 15(4) of the Ordinance. However, delay in filing of this second appeal was not condoned. We have not been pursuaded to rely on this decision.
27. The learned Advocate also made reference to the case of Mst. Jamila Subhan Shaikh v. Mst.
Zahoor Fatima (1). This appears to be a judgment on concession as the opening sentence of paragraph 3 of the judgment would show. It had been conceded by the Advocate that section 5 of the Limitation Act applied to appeals preferred under section 15 of the Ordinance. Mahmood, J., placed reliance on the cases of Hatim Ali and Mansoor Hussain. Both these cases, as stated above, are in regard to applicability of section 5 of the Limitation Act to appeals under section 15(1) of the Ordinance. However, in this case, the question was in regard to condonation of delay in filing appeal under section 15(1) of the Ordinance before the District Judge and therefore, the observation of the learned Single Judge could not be extended to mean that section 5 of the Limitation Act would apply even to second appeals under section 15(4) of the Ordinance.
28. On a consideration of the case-law on the subject and in appreciation of the plain terms of section 15(4) of the Ordinance as well as section 29(2) of the Limitation Act, we are in no doubt whatsoever that section 5 of the Limitation Act which provides for a power to condone the delay in filing second appeals before the High Court is not applicable. In the result, the second appeal before this Court was clearly barred by time.
29. 'In view of the conclusion in regard to applicability of section 5 of the Limitation Act to the second appeal it is not necessary for us to enter into the question in regard to condonation of the delay.
30. No other point was urged before us. We dismiss this appeal with costs but allow 4 months' time to the appellant to vacate the premises in question. {{FOOT NOTE}}
(1) PLD 1977 Kar. 749 {{FOOT NOTE}}