' ARSHAD MAHMOOD TABASSUM, J:--- Through this single judgment, I intend to dispose of 44 SAOs i,e, SAO No,. 20 of 2009 to SAO No,. 63 of 2009, as they arise out of the same judgment and involve common questions of law and facts.
2. These SAOs have been preferred against judgment dated 16.09.2009, passed by the learned District Judge, Vehari, whereby through a common judgment, he dismissed appeals filed by the appellant against order dated 30.07.2007 passed by the learned Rent Controller, Mailsi, through which he had dismissed ejectment petitions, filed by the appellant in respect of certain shops.
3. Briefly, the facts relevant and necessary for the disposal of the above said SAOs are that the appellant filed ejectment petitions on 30.10.2004, under Section 13 of the Urban Rent Restriction Ordinance, 1959 (the Ordinance), against the respondents in the above said SAOs, in respect of different shops, which were in their respective possession being tenants therein, situated. In Sikandar Market, Tibba Sultan Pur, District Vehari. The appellant claimed himself to be a landlord and the respondents tenants under him, on monthly rent at the rate of Rs,2,400/- per shop; that they had been making payment of rent till May, .2004 at the rate of Rs,2,400/- per month, whereafter, the appellant asked them to enhance the rate of rent by 25% and pay the same at the rate of Rs,3,000/- per month, but they refused to do so, hence, became rent defaulters, as such liable to be evicted. The respondents submitted their respective replies to the ejectment petitions, wherein they maintained that they had obtained vacant barren land from the father of the appellant on the basis of partnership and themselves constructed shops out of their own resources; that it was agreed between the parties that the rent of the land would be at the rate of Rs,100/- per marla and that at the time of filing of ejectment petition, the rate of rent was Rs,400/- per shop. They denied having committed default in making payment of rent and maintained that ejectment petitions were filed with mala fide intention. It was also maintained that the shops in question were outside the urban area, as such provisions of the Ordinance were not applicable.
4. The learned Rent Controller framed the relevant issues, recorded pro and contra evidence of the parties and ultimately dismissed the ejectment petitions.
5. It may be mentioned here that during the pendency of the ejectment petitions, through application dated 17.03.2005, the appellant requested for fixation of fair rent, which was allowed on 21.09.2005 and with the concurrence of both the parties, fair rent was fixed at the rate of Rs,700/- per shutter/single shop and the respondents were directed to deposit the previous rent from 01.10.2004 to 20.09.2005 in lump sum up till 07.11.2005.
6. The appeals filed against the order of learned Rent Controller dated 30.07.2007, were dismissed by the learned District Judge, Vehari, vide his judgment dated 16.09.2009, which has been impugned through the instant SAOs.
7. It may be observed here that since the ejectment petitions stood disposed of on 30.07.2007 i,e, prior to the promulgation of the Punjab Rented Premises Ordinance, 2007, hence, appeals before the learned District Judge were filed under the repealed Ordinance. The instant SAOs have also been filed under the said old law.
8. It has been argued by the learned counsel for the appellant that since the respondents had denied the relationship of landlord and tenant, hence, the learned Rent Controller, on coming to the conclusion that the said relation existed between the parties, was obliged to pass ejectment order against the respondents; that the default in payment of rent on the part of the respondents also stood established and on that score, they were also liable to be evicted; that the application filed by the appellant for fixation of fair rent was erroneously treated as an application under Section 4 of the Ordinance, instead the said application was filed for fixation of tentative rate of rent and that both the learned Courts below have erred in law while holding order dated 21.09.2005, to be an order of fixation of fair rent and that both the Courts below have mis-read and mis-construed the evidence available on record and thereby arrived at a wrong conclusion. He has, therefore, prayed for setting aside the impugned judgments, passed by both the learned Courts below.
9. Conversely, learned counsel for the respondents has fully supported the impugned judgment. He has also strenuously argued that certain SAOs are barred by time; that in view of application dated 17.03.2005, filed by the appellant for fixation of fair rent and consenting order, passed by the learned Rent Tribunal dated 21.09.2005, thereby fixing fair rent, the ejectment petitions were liable to be dismissed, as the said order had created a new tenancy between the parties and that SAOs are liable to be dismissed.
10. I have heard learned counsel for the parties and perused the record with their able assistance.
11. Taking up the question of limitation, it is observed that as per office report, SAOs No,.29, 52, 57 and 59 are barred by one day, whereas SAOs No,. 26, 41, 45 and 47 are barred by 3 days. Similarly, SAOs No,.34, 46, 48 and 55 are barred by five days, whereas SAOs No,.24, 43, 53 and 56 are barred by seven days. Though, applications under Section 5 of the Limitation Act have been preferred by the appellants, but the fact of the matter is that benefit of Section 5 of the Limitation Act cannot be extended, unless the said provision of law is specifically made applicable to an SAO filed under Sub-section (6) of Section 15 of the Ordinance, because the said Sub-section prescribes its own period of limitation i,e, 30 days from the date of order, appealed against. As such the delay cannot be condoned in such appeals, filed under Section 15 (6) of the Ordinance, as prayed for in the applications under Section 5 of the Limitation Act. The said SAOs are liable to be dismissed on this score alone. In this regard, the provisions of Section 29 of the Limitation Act may be referred to, which are reproduced herein below for the sake of convenience:-
29. Savings.--- (1) No,thing in this Act shall affect 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 therefore by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore 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 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 the Act shall not apply. (The underlining is mine to add emphasis).
12. Reliance in this regard may be placed on the case of Allah Dino (2001 SCMR 286), the relevant portion whereof is reproduced as under:- "5. We have given our anxious thought to the proposition under examination. There is no cavil with the argument that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a Whole. But where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C.P.C. Then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act, as held in the cases (i) The Genera Bank Ltd v. The Warden Insurance Co. Ltd. (AIR 1935 Bombay 35), (ii) Abdul Ghaffar and others v. Mst. Mumtaz (PLD 1982 SC 572), (iii) Ali Muhammad and another v. Fazal Hussain and others (1983 SCMR 1239), (iv) Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi (PLD 1999 Karachi 76) and (v) Haji Muhammad Ashraf v. The State and 3 others (1999 MLD 330)."
13. It has been argued by the learned counsel for the appellant that the period of limitation should be reckoned from the date of delivery of copy and that the appellant was mislead by the officials of Copying Agency, who did not issue him the copy, despite that he repeatedly visited the Copying Agency.
14. As far as, legal position is concerned, the period of limitation has to run against the appellant from the date of preparation of copy and not from the date of delivery of copy. Reliance in this regard may conveniently be placed on the case of Ghulam Muhammad (2002 CLC 295), the relevant portion whereof reads as under:--- "The learned Appellate Court had dismissed the appeal of the P.R.T.C. On merits as well as on limitation as an additional ground. The learned Trial Court had passed the judgment and decree on 7.10.1987. The petitioner applied for obtaining copy of the judgment and decree on 17.10.1987. The necessary copies were admittedly prepared and were ready for delivery on 26.11.1987. It was rightly held by the learned Appellate Court that the starting point of limitation would be 26.11.1987 when copy of the judgment and decree was prepared and was ready for delivery and not when the petitioner chose to obtain the delivery on 17.12.1987 The appeal filed on 19.12.1987 was thus, barred by time."
' Similar view has been expressed by this Court in the case of Muhammad lqbal (2010 CLC 1493). It reads as under:--- "The next contention of learned counsel for the petitioner is that certified copy was prepared on 5- 92007 but the petitioner was not informed by the copying agency is also misconceived because section 12(5) of Limitation Act, 1908 provides that only the time which will spent on the preparation of certified copy shall be excluded from the limitation period provided under the law. The contention that copying agency did not inform the petitioner is without substance. Reliance is placed on the case of Mst. Anisa Begum v. Atiq-ur-Rehman 2007 MLD 1385."
15. As regards the merits of these SAOs, it is observed that this case has its own peculiarities. It is an admitted fact between the parties that the demised shops were constructed by the respondents from their own pockets and the rate of rent had been fluctuating. Moreover, in view of the order dated 21.09.2005, regarding fixation of fair rent, with the concurrence of both the parties, a new tenancy stood created rendering the ejectment petitions as infructuous, therefore, on the basis of grounds taken in the said ejectment petitions, no ejectment order could be passed, by the learned Rent Controller. The learned first appellate Court, in this regard, has rightly placed reliance upon the case of Messrs Mahmood Ahmad and sons (PLD 1983 Quetta 36), wherein it was held as follows:--- "In case the parties themselves entered into an agreement to enhance the rent, then it is a valid agreement ; because it has been done without the intervention of the Court. The respondent started receiving rent at the enhanced rent, therefore, fresh tenancy has started. The application for the eviction of the appellant on the ground of nonpayment of rent does not subsist. The cause of action has ended after the execution of the fresh tenancy between the parties. The contention of the appellant has not been repudiated that the respondent had assured that he would withdraw the application."
16. The appellant cannot claim that the application dated 17.03.2005, filed by him, was not for fixation of fair rent and the same was for fixation of tentative rent. In this regard, it is observed that the very title of the petition {{URDU TEXT}} suggests that it was for fixation of fair rent. It is evident from order dated 21.09.2005 that the parties had agreed to create a new tenancy.
17. It is worth-mentioning here that the scope of the SAOs is very limited and this Court has to see as to whether the impugned judgment is contrary to law, or usage having the force of law or that the Courts below have failed to determine some material question of law or usage having the force of law or have committed a substantial error or defect in the procedure prescribed by the law in force for the time being. In this regard, reference may be made to the Explanation to Sub Section
(6) of Section 15 of the Ordinance, which reads as under:--- "Explanation.--An appeal under this subsection shall be heard and determined as an appeal from an appellate order under Section 100 of the Code of Civil Procedure, 1908 and the provisions of Part VI of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings."
18. It will not be out of place to reproduce the provisions of Section 100 of Civil Procedure Code as well, which read as under:--- "100.Second appeal.--- Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:---
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."
19. Thus, keeping in view the parameters of Section 100 of the CPC, the scanning of the judgments of both the learned Courts below reveals that both the learned Courts below have correctly evaluated and appreciated the evidence, produced by the parties and correctly applied the law applicable thereto. This being so, these SAOs have no merit, which fail and the same are hereby dismissed, leaving the parties to bear their own costs. SAO was dismissed as barred by time.