The above application has been filed by the respondent praying there--in that the appeal filed in this Court as well as the first appeal filed before the lower appellate Court be dismissed as barred by time. The relevant facts may briefly be stated as follows :-- The respondent-landlord filed an application for ejectment (Case No. 2150,'/1973) against the appellant under section 13 of the then West Pakistan Urban Rent Restriction Ordinance 1959 (herein--after referred to as the said Ordinance of 1959) from the house allegedly let out to the appellant situated at Doba Village, Osmania Colony, Karachi.
The appellant denied the relationship of landlord and tenant bet--ween the parties whereupon preliminary issue to determine the said controversy was framed. The evidence of the respondent was recorded but on 10th September, 1975, when the case was fixed for evidence of the appellant he and his advocate, both were called absent.
Accordingly the side of the appellant was closed and on 13th September, 1975 the Controller allowed the ejectment application ex pane.
2. On 27th September, 1975, the appellant moved an application under Order 1X, rule 13, C. P. C. To set aside the ex parte order but the said application was rejected by the Controller by an order passed on 17th April, 1978
3. Against the aforesaid order the appellant filed Appeal No. 283 of 1978, which was heard by the learned VII Additional District Judge, Karachi who by judgment passed on 31st May, 1978, dismissed the same.
The appellant has preferred this second appeal under Section 15(4) of the aforesaid Ordinance of 1959.
4-5. The respondent however moved this application for dismissal of the appeal as barred by time which point I propose to decide first as it goes to the root of the case. The relevant dates for the purpose of this application may be stated as follows:- The impugned order was passed by the learned First Appellate Court on 31st May, 1978.
(ii) No application for copy was filed from 1st June, 1978, till 30th June, 1978.
(i.e) From 1st June, 1978, till 30th June, 1978, the Civil Courts including the Court of the Controller was closed on account of summer vacation and reopened on Saturday the 1st July, 1978.
(iv) The appellant moved an application for obtaining the certified copy of the impugned judgment of the First Appellate Court not on the first opening day of the District Court but on 3rd July, 1978.
(v) The copy was made ready and delivered to him on 4th July, 1978.
(vi) The High Court was closed on account of the Summer Vacation, on 3rd June, 1978 and re- opened on 5th August, 1978.
(vii) The present appeal was filed in the High Court on 5th August, 11978 on the first opening day after the summer vacation.
6. Keeping the above dates in view, we may now refer to section 15 of the West Pakistan Urban Rent Restriction Ordinance and find that the party aggrieved by an order passed on appeal by appellate authority may prefer an appeal to the High Court within 30 days from the day of the order of the appellate authority. The time for filing the appeal, viz. 30 days expired in this case on 30th July, 1978. The appellant however filed the application for copy on 3rd June, 1978, by which time the period prescribed for filing the second appeal to this Court had already expired.
The learned counsel for the appellant however submitted that the High Court was closed from 3rd June, 1978 and re-opened on 5th August 1978, as such the appeal filed on the first day of the re- opening on the High Court shall be within the time in view of the provisions of Section 4 of the Limitation Act.
7-8. The learned counsel in support of this argument relied upon the case of Fazal Karim v. Ghulam Jilani (1975SCMR452) wherein the Honourable Supreme Court held that the period during which the Court remained closed on account of the vacation had to be excluded for the computa--tion of the limitation and the appeal filed on the reopening of the Court would be well within time though the last day for filing of the appeal fell on a day when the High Court was closed for vacation.
The learned counsel also cited the case of Rasool Bux v. GAulam Qadir (PLD 1960 Kar. 741) where it was held that in view of the provisions of section 4 of the Limitation Act when in any appeal or suit the period of limitation expires during the vacation, the matter would be within time if instituted on the first day of the re-opening of the Court after vacation.
Relying upon the provisions of section 4 of the Limitation Act and the cases mentioned above the learned counsel submitted that though the application for copy was filed after the expiry of 30 days (the pres--cribed period for preferring an appeal to this Court), but in view of the fact that the High Court was closed on 3rd July, 1978, the day when the application for copy was filed (though after the expiry of the period of . Limitation) the appeal presented on 5th August, 1978, i.e. On the first day of the re-opening of the Court would be within time.
A perusal of the provisions of Section 4 of the Limitation Act repro--duced above would show that it has nothing to do with the computing of period prescribed for filing an appeal.
9. The question of applicability and effect of section 4 of the Limitation Act came for consideration in the case of Zlaul Haq v. Brabant (PLD 1962 Pesh. 21). The brief facts of the said case were that the trial Court passed an order in favour of the petitioner on 19th July, 1961. The respondent applied for its copy on 31st August, 1961, which was delivered to him on 5th September, 1961, and on the same day he filed an appeal against the order dated 19th July, 1961. The Civil Courts were closed for long vacation in the month of August, 1961 and re-opened on 1st September, 1961. The period of limitation for, filing the appeal being 30 days, expired on 19th August, 1961. The appeal was filed on 5th September, 1961. On the question of appeal being barred by time, the appellant contended that due to the long vacation of the Civil Courts the period of limitation stood extended up to 1st September, 1961 when Court reopened and as the application for a copy of the order was made within extended period, the time spent in obtaining the requisite copy was to be excluded and according to the learned counsel if it was so done, the appeal would still be within time.
The Honourable Judge (Mr. Justice Anwarul Haq, as he then was) while rejecting the above contention and holding that the appeal was barred by time, observed as follows :- "It is clear. Therefore, that in the present case the period of limita--tion expired on the 19th of August, 1961, but as on that date and the following days of the month of August, the Civil Courts were closed, under Section 4 of the Limitation Act the respondents were entitled to present their appeal on the day the Courts re-opened, namely, the 1st of September, 1961. But the period of limitation did not stand extended up to the 1st of September, 1961. The time spent in obtaining a copy of the order appealed against could only -be excluded under Section 12 of the Limitation Act if the applica--tion for the copy had been made before the expiry of the period of limitation and not after such expiry, as was done in the present case. As the appeal was presented not on the 1st of September, but on the 5th o September, 1961, it must be held to be barred by time."
It may be also mentioned here that the learned Judge relied upon the case reported as Guran Bakhsh v. Bindraban (1).
The relevant observations the learned Chief Justice in the case of Guran Bakhsh v. Bindraban which has been cited with approval in the case of Ziaul Hoq v. Brabant are reproduced hereunder "In computing the period prescribed for an appeal the time requi--site for obtaining copies is excluded only if the application for copies is made while the right of appeal subsists, and ,an appellant cannot be allowed to let the whole of the period allowed for appeal to expire- and then take advantage of the holiday which happens to occur towards the end of that period."
With the above observations I am also in respectful agreement.
10. 1 may also refer here to the case of Asiatic Industries Ltd. v. Zahid (2), wherein the Division Bench consisting of Mr. Justice Qadeerud--din Ahmed and Mr. Justice Muhammad Haleem held:- "We may mention additionally that in this case the judgment was given on the 12th of February, 1969, and an application for obtain--ing its copy was made on the 7th of March, 1969. The copy was made ready on the 21st of March, 1969 but stamps were not supplied up to the 27th of March, 1959. The most material point, however, to note is that the application for obtaining the copy of the judgment was made after the appeal had become time barred. Counsel explained this aspect of the case by saying that the judg--ment was dictated in open Court. But was not typed out for some time afterwards. Typing out the judgment, however, could not obviate the necessity of applying for its copy, because time did begin to run from the date on which the judgment was delivered."
11. Thus the learned counsel for the appellant is correct when h states that in case period of limitation prescribed expires on a when the Court is closed the suit, appeal or application may be insti--tuted on the day that the Court reopens, in view of the provision o Section 4 of Limitation Act but it does not in any manner alter the length of the period prescribed for preferring the appeal. In the present raise the impugned order was passed on 31st May, 1978 but the application for the copy of the said order was made on 3rd July, 1978. The appellant thus allowed to expire the whole of the period prescribed for preferring the appeal under section 15 (4) of the Ordinance of 1959 before the application for copy was made. He therefore cannot take advantage of the holidays which happen to occur towards the end of that period.
(1) AIR 1910 1gb. qp7(2) p L D 1972 Kar. 84 The application was filed for copy on 3rd July, 1978 (during the period. High Court was closed on account of summer vacation, but after the expiry of the period of the limitation prescribed for filing an appeal under Section 15 (4) of the Ordinance 1959), would thus not operate so as to extend the period of limitation for preferring the appeal up to the date of re-opening of the High Court. ; The appeal filed in this Court against the order dated 31st May, 1978 under the circumstances on 5th August, 1978 was therefore barred by the time.
12. For the reasons discussed above the application filed by the respondent succeeds and this appeal therefore is dismissed as barred bye time. There shall however be no order as to costs.
The appellant is granted a period of four months to vacate the premises provided he continues to deposit the rent regularly every month during this period.