First Rent Appeals Nos. 163/1980, 332/1980, 343/1980, 384/1980, 410/1980, 519/1980, 524/1980, 650/1980, 668/1980, 669/1980, 670/1980, 671/1980 and 672/1980, 681/1980 are all admittedly time barred for the same have been filed beyond the period of 30 days of the passing of the orders by the Controller, provided in section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance). However, in all these appeals, applications under section 5 of the Limitation Act have been made.
2. The question that arises for consideration is whether section 5 of the Limitation Act applies to appeal under section 21 of the Ordinance.
3. While the Advocates for the appellants maintain that section 5 of the Limitation Act is applicable to such appeals the advocates for the respondents in Rent Appeals Nos. 168/1980, 332/1980, 343/1980 and 410/1980 in which notices to the respondents have been issued, maintain that section 5 of the Limitation Act is not applicable to such appeals, and therefore, they submit that the appeals are liable to be dismissed as being barred by time.
4. It is admitted by the learned Advocates for the appellants that section 5 of the Limitation Act has not specifically been made applicable to such appeals, therefore, the further question that falls for consideration is whether by virtue of provisions of section 29, subsection (2) of the Limitation Act, 1908, section 5 of the Limitation Act is applicable to such appeals or not.
5. This question came up for consideration though in relation to First Appeal under section 15(1) of the West Pakistan Urban Rent Restriction Ordi--nance, 1959 in Hatim A.I v. Mst. Zulekhabibi and others PLD 1964 Kar. 399, wherein Waheed--uddin Ahmed, J. While construing the provisions of section 29, subsection (2) of the Limitation Act, 1908, observed that section 5 of the Limitation Act was applicable to such appeals. The reasons which weighed with the learned Judge appear at pages 404 and 405 of the report which are as follows :- "In the first place, it will be noticed that an appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959, is, of the same type and nature as one contemplated under Article 152 of Schedule 1 of the Limitation Act. The said Article of Limitation Act contemplated an appeal under the Code of Civil Procedure. The appeal under section 15 of the said Ordinance is also of the same nature. The explanation to section 15 of the ,Rent Ordinance leaves no doubt in this respect, which is in the following terms :- An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the Appellate Authority and the provisions of Part VI and of the First Schedule to the said Code relating toappeals shall, with such modifications as the context may require, apply to such proceedings.
Under the above-mentioned explanation and appeal is to be heard and determined in the same manner as those under the Civil Procedure Code. I, therefore, find not much difference between an appeal filed under the Rent Restriction Ordinance and the one filed under the Code of Civil Procedure. The object of the appeals under both the enactments is identical in all respects.
Proceeding further his Lordship observed :- "Assuming for the sake of argument that this is not the correct position even then section 5 of the Limitation Act would be applicable to the appeals filed under the above-mentioned ordinance. It could at best be argued that it is one of those cases in which no period of Limitation is prescribed in the First Schedule of the Limitation Act either directly or by fiction of law with the help of section 29 of the Limitation Act. Then the question will arise whether sections 4 to 25 are independent sections and the words "the period of Limitation prescribed" in section 5 of the Limitation Act should be confined to the period of Limitation prescribed under Schedule I to the Limitation Act. The answer to this question depends on the answer of the further question whether section 5 of the Limitation Act governs sections 1 to 25 of the Limitation Act or not. In my judgment section 3 of the Limitation Act are not subject to it and should be independently construed. In Ramdutt Ramkisson Das v. E. D. Sassoon & Co. AIR 19299 FC 103 the judicial Committee seems to have approached the case before them on that basis. In a recent decision of the Full Bench of the Allahabad High Court.
(Indian Jurisdiction) Rattan Lal v. State AIR 1961 All. 139 also it was held that the words prescribed in section 5 mean prescribed by any law and not by the Limitation Act itself. This view was also taken in Koer Durai P.I Singh v. Th. Pancham Singh AIR 1939 All. 403, Amarendra Lal Khan v.
Mohinderanath Roy AIR 1955 Cal. 269 and Kandaswami Pillai v. Kanncppa Chetyy AIR 1952 Mad.
186. It will be further noticed that section 5 of the Limitation Act is in Part III of the enactment which deals with the computation of period of limitation. Its language is in general terms and there is no limitation or restriction imposed so as to confine it to the period of limitation prescribed by the First Schedule of the Limitation Act. Therefore, the language used in sections 4 to 25 is such that it open to interpret them in such a manner they may be given a general application. It seems to me that if such an interpretation is possible it should not be denied on technical grounds or broad policy of law."
Wahiduddin Ahmed, J. Also relied on a decision of the Lahore High Court in Muhammad Azeem v.
Muhammad Nawaz (1). In this case, Shabbir Ahmed, J. Condoned the delay in presentation of appeal beyond time due to the mistake of the counsel of the appellant. He, therefore, impliedly held that section 5 of the Limitation Act was applicable to the appeals under the West Pakistan Urban Rent Restriction Ordinance, 1959.
6. However, Hatim A.I's case was cited before a Division Bench of Lahore High .Court in Mahmood Alam v. Mehdi Hussain (2), wherein Muhammad Afzal Zullah, J. While dealing with the question of applicability of section 5 of the Limitation Act to appeals under section 18 of the Displaced Persons (Land Settlement) Act, 1958 in relation to the reasons given by Waheeduddin Ahmed, J. In paragraph No. 9 at pages 404 and 405 of the report PLD 1964 Kar. 399 and quoted hereinabove, observed at page 18 of the report PLD 1970 Lah. 6, that :-
(1) PLD 1961 Lah. 137(2) PLD 1970 Lah. 6 "The above interpretation does not give due effect to clause (b) of section 29(2) with greatest respect, we do not agree with this reasoning of the application of section 5 of the Limitation Act, we have already analysed the provisions of subsection (2) of section 29 in comparison to section 5 of the Limitation Act and are of the opinion that section 5 is subject to the provisions contained in subsection (2) of section 29. We have found that the second part thereof, specially clause (b), clearly prohibits the application of section 5 of the Limitation Act to special/Local laws. Therefore, we are of the view that the authority cited by the learned counsel essentially decided the question of the application of section 5 of the Limitation Act to the particular provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, which did not prescribe different period of limitation from the one mentioned in the First Schedule to the Limitation Act and that authority has no general application. The additional/alternate reasoning for the application of section 5 of the Limitation Act to a special law, with greatest respect, we have not been able to agree to it. Therefore, that authority is of no help to the learned counsel."
His Lordship also supported the above conclusion by referring to the legislative intendment.
7. The Division Bench of Lahore High Court in the aforecited case also relied on an unreported decision of the Supreme Court in Civil Appeal No. 26 of 1964, later reported as Elahi Baksh v. Chief Administrator, Waqf Property, West Pakistan, Lahore and others Law Notes 1970 SC 358wherein the question of application -of section 5 of the Limitation Act to a Petition filed under section 7 of the West Pakistan Waqf Properties Ordinance, 1959 was considered.
The facts of that appeal, as stated, were :- "Under section 6 of the said Ordinance, the Chief Administrator, Auqaf issued a notification on 1st June, 1960 taking over certain property as being attached to a shrine. On 12th July, 1960, the aggrieved party filed: an application under section 7 of that Ordinance in the District Court for a declaration that the said property did not appertain to the shrine. The period of Limitation for filing such an application against a notification under that law was 30 days from the publication of such a notification. An application for condonation of delay under section 5 of the Limitation Act was rejected by the District Judge on the ground that the said provision was not attracted to such proceedings and the main application under section 7 of the Ordinance was, therefore, dismissed as time barred. This order of District Judge was upheld in the High Court.
On these facts their Lordships of the Supreme Court after noticing al! The relevant provisions of the Ordinance, came to the conclusion that there was nothing in the provisions of that Ordinance to show that the application of section 5 of the Limitation, Act to the proceedings under that law, was contemplated. It was also held that section 29 of the Limitation Act directly applied to such a situation. Section 3 of the Limitation Act, which makes the period of time giving in aspecial law, effective, was held to be applicable. Furthermore, it was held that the last of clause (2) of section 29 makes it clear that section 5 would not apply to an application under a special or local law".
Their Lordships in the last mentioned observations were referring to clause (b) of subsection (2) of section 29 which prohibits application of those provisions of the Limitation Act, which are not mentioned in the earlier part of subsection (2) of section 29, to the local or special laws.
The Division Bench thus, concluded, "this would apparently, as concluded by their Lordships of the Supreme Court, excluded the application of section 5 of the Limitation Act."
8. I have no hesitation in following the above view of section 29(2) of the Limitation Act taken by the Division Bench of the Lahore High Court.
Additionally, by the Ordinance a direct appeal to the High Court from the order of the Controller has been provided which is required to be filed within a period of 30 days. But under Article 156 of the First Schedule to the Limitation Act the period of Limitation for filing appeal in the High Court is 90 days. The explanation added to section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on which much emphasis was laid by Waheeduddin Ahmed, J. Has not beenincorporated in section 21 of the Ordinance. Therefore, the main reason which had weighed with Wabeeduddin Ahmed, J. In Hatim A.I's case for holding that section 5 of the Limitation Act was applicable to appeals under the West Pakistan Urban Rent Restriction Ordinance, 1959 is no more available for applying the provisions of section 5 of the Limitation Act to the appeals filed under section 21 of the Ordinance, 1979. In this view I am supported by the opinion of the Division Bench of Lahore High Court in Mahmood Alam's case wherein Muhammad Afzal Zullah, J. While considering the main reason of which Wabeeduddin Ahmed, J. In Hatim All's case, observed :- "In this case that reasoning is not applicable because the period of limitation provided for appeals under section 18 of the Act is absolutely different from that provided in the First Schedule to the Limitation Act. Moreover, there is no resemblance of hierarchy of Courts in the Settlement Ordinance with any hierarchy of authorities or Courts mentioned in the First Schedule to the Limitation Act. Therefore, we find no justification for applying the reasoning contained in the above- mentioned authority to the present case."
These observations apply with full force to the present appeals.
9. It appears that the Legislature under the Ordinance by curtailing the right of appeals from two to one intended to provide expeditious relief in relation to the rented premises. The Legislature must also be .Aware of Mahmood Alam's case and if it wanted to bring such appeals within the purview of section 5 of the Limitation Act it would have specifically provided so.
10. I may also here refer to a Single Bench decision of Lahore High Court in Allah Ditta v. Farooq Ahmad and 3 others PLD 1979 Lah. 917wherein dealing with the question of applicability of section 5 of the Limitation Act to the Second Appeals filed under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 following Mahmood Alam's case it was observed by M. S. H.
Qureshi, J. As follows :- "It is to be noted that the period of limitation for filing the first appeal under subsection (1) of section 15 as also under Article 152, is thesame i.e. thirty days. That is however, not so as regards the filing of the appeal in the High Court. The time allowed for such appeal in the High Court. The time allowed for such appeal by subsection (4) of section 15, is thirty days, whereas under Article 156 of the Limitation Act, it is ninety days. , The time allowed for filing the second .Appeal by the special law "I.e. West ,Pakistan Urban Rent Restriction Ordinance, 1959, is, therefore, different from that given in the Limitation Act. In such a situation, section 5 stands excluded by virtue of section 29(2) of the Limitation Act, which permits the application of only sections 4, 9 to 18 and 22. This position had been upheld even in Hatim A.I's case relied upon by the learned counsel for the appellant, wherein it had been held :- On plaint reading of section 29(2) of the Limitation Act, it would appear that it only lays down that where special or local law provides for a period different from the period prescribed by the First Schedule, provisions of the Limitation Act will only apply to the extent expressly specified in this section. Undoubtedly in such cases section 5 of the Limitation Act would not apply and only sections 4, 9, 19 and 22 would apply in so far and to the extent to which they are not expressly excluded by special or local law. Thus in order to attract this provision of law. Two important factors must be kept under considera--petition. Firstly, whether the special law has prescribed for the appeal a different period of limitation from that prescribed under the First Schedule and, second whether under it, the application of sections 4, 9, to 18 and 22 has in any way been curtailed for computing limitation. Otherwise, these provisions of law shall have to be taken into consideration for the purpose of determining any period prescribed for any appeal by it. Clearly In such event section 5 of the Limitation Act would not be applicable and shall have to be excluded from consideration."
11. A Division Bench of this Court in L. P. A. No. 365 of 1967, Messrs Muqtada Khan v. Allah Rakhi, which is - not yet reported, has also taken the view that section 5 of the Limitation Act is not applicable to Second Appeals under section 15(b) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
12. The learned counsel for the respondents have referred to Mansoor Hussain v. Mureed (1), Mst.
Jamila Subhan Fateh v. Mst. Zahoor Fatima (2). In the first mentioned case Saad Saood Jan, J.
Simply followed Hatim A.I's v. Mst. Zulekha Bibi. In the second named case I. Mahmud, J. On concession held that section 5 of the Limitation Act applied to appeals preferred under section 15 of the Rent Ordinance, 1979. The learned Judge further relied on Hatim A.I v. Mst. Zulekhabibi and Manzoor Hussain v. Mureed. Since these' two cases simply followed Hatim A.I's case, therefore, they have no force in view of opinion of the Division Bench of Lahore High Court in Mahmood Alam's case and for further reasons stated hereinbefore.
13. I, therefore, hold that the provisions of section 5 of the Limitation Act are not applicable to appeals under section 21, of the Ordinance an consequently all the applications under section 5 of the Limitation Act are not maintainable. Accordingly all the applications are dismissed.
Since all the appeals mentioned in paragraph No. 1 have been filed beyond the period of limitation, the same are also dismissed.
(1) PLD 1974 Note 132 at p. 193(2) PLD 1977 Kar. 749