This is IInd Appeal under section 15 (4) of the Sind Urban Rent Restriction Ordinance, 1959 directed against the order of learned IV Additional District Judge, Karachi dated 27 had dismissed the 1st Appeal of the appellant against the orders dated 4th December, 1979 and 28th February, 1918 passed by Rent Controller, Karachi.
2. Brief facts of the case are as under : The respondent had rented out Flat No. 4 on Plot No 129.U/11, Allama lqbal Road, P. E. C. H. Society, Karachi to the appellant on 30th May, 1975. On 12th September, 1979 the rent agreement was revised and monthly rent of Rs. 750 was fixed. The respondent filed ejectment applica--tion against the appellant on 2nd January, 1978 before the Rent Controller, Karachi on the ground that the appellant had committed default in payment of rent for two months namely, November and December, 1977.
This application was decided by the Rent Controller, ex parse on 28th February, 1978 whereby he allowed the ejectment application and directed the appellant to vacate the premises within one month. The appellant filed an application for setting aside ex parse order before- the Rent Controller on 21st August, 1978. The learned Rent Controller- after hearing both the parties dismissed the application on merits on 4th December, 1979, holding that the appellant was duly served with the notice and that there was no substance in the appellants application under Order IX, rule 13, C. P. C.
3. On 11th December, 1979 the appellant applied for certified copies of the two orders of the Rent Controller dated 28th February, 1978 and 4th December, 1979 whereby the learned Rent Controller had respectively allowed the application for ejectment ex parte and dismissed the appel--lant'sth application for setting aside ex parte order. He obtained certified copies on the same date i.e. 11th December, 1979, but preferred appeal before the learned IV Additional District Judge, Karachi after about six months on 4th June, 1980. By this appeal he challenged both the above orders of the Rent Controller under section 15 (1) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance of 1959).
4. The learned IV Additional District Judge dismissed the appeal on 27th August, 1980 on the ground that under section 27 (2) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to the Ordinance of 1979) read with subsections (3) and (4) of at the above section, the appeal should have been filed before the High Court and that he was not competent to entertain and hear the appeal. The learned XV Additional District Judge did not advert in his order dated 2 7th August, 1980 to the question of limitation as at the face of it the appeal was filed after six months of obtaining the certified copies of the two impugned orders.
5. The appellant, therefore, challenged the order of the learned IV Additional District Judge dated 27th August, 1980 in the present appeal which purports to have been filed under section 15(4) of the Ordinance of 1959. However, he amended his appeal later and added another prayer in the alternative. The original prayer and the amended prayer are reflected in the relevant clause of the memo of appeal which is reproduced as under :- "It is, therefore, prayed that this Hon'ble High Court may be pleased to admit this appeal, call for R and P and setting aside the impugned order dated 27th August, 1980, passed by the learned IVth Addl. District Judge, Karachi allow the appeal. AND OR in the alternative this appeal may be treated as the First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 and the orders dated 28th February, 1978 and 4th December, 1979 passed in Rent Case No.5/1978 by the learned 1st Rent Controller, Karachi, may be set aside allowing the appeal after hearing."
6. Learned counsel for the appellant has contended that the learned IV Addl. District Judge has erred in holding that he was not competent to entertain the appeal by virtue of section 27 of the Ordinance of 1979. According to him, the proceedings under Order IX, rule 13, C. P. C. Were instituted before the learned Rent Controller before the promulga--tion of the Ordinance of 1979 and as such by virtue of section 4 of the W. P. General Clauses Act, 1956, the proceedings should be deemed to have been concluded under the Ordinance of 1959 and as such were amenable to appeal under section 15 of the same Ordinance.
7. The argument is misconceived. Although the proceedings under Order IX, rule 13, C. P. C. Were instituted by the appellant before the promulgation of the Ordinance of 1979 but were decided on 4thl December; 1979, i.e. After the promulgation of the Ordinance of 1979 which came into force on 21st November, 1979. Hence the impugned order shall be deemed to have been passed under the Ordinance of 197 and as such the learned IV Addl. Distt. Judge, was right in holding that the appeal against the said order should have filed under section 21 of the Ordinance of 1979 in the High Court and not before the Additional District Judge.
8. Now the question is whether the alternative prayer of the appel--lant for treating the present appeal as 1st appeal under section 21 of the Ordinance of 1979 is maintainable and if it is held to be maintainable, then the question will be whether it has any substance.
9. It may be stated that if this appeal is treated as 1st Appeal under section 21(2) of the Ordinance of 1979 against the original orders of the trial Court dated 28th February, 1978 and 4th December, 1976, then this appeal will be hopelessly time-barred, because it was filed in this Court on 28th February, 1981 after more than three years of the original ex parte ejectment order and more than two years after the order whereby the , application for setting aside ex parte decree was dismissed.
10. The appellant has filed an application under section 14 of the Limitation Act, praying that in computing the period of limitation from 21st August, 1978 till the date of his application under Order VI, rule 17, C. P. C. For amending the appeal, may be excluded from the period of limitation.
11. It would be pertinent to note that the appellant has been prosecut--ing an appeal before the learned Addl. District Judge which was hopelessly time-barred. As already stated above, it was filed after six months of receiving the certified copies of the impugned orders of the learned Rent Controller. It has been held by the Supreme Court in the case of Ahmed Din v. Mohomed Shafi (PLD 1971 SC 762) that the period spent by plaintiff in prosecuting time-barred appeal against an order would not be excluded in computing the period of limitation under section 14. Hence the time which the appellant spent in prosecuting his appeal before the I V Additional District Judge cannot be excluded for the simple reason that it was on the face of the record a hopelessly time --barred appeal.
12. The question whether the time which was spent in prosecuting the application for ex parte order can be excluded should also be answered in the negative because from the very language of section 14 of the Limitation Act, it would appear that only that time which is consumed in prosecuting a case is a wrong Court can be taken into consideration for availing the benefit of limitation under section 14. In the present case the proceedings under Order IX, rule 13, C. P. C. Had been filed before the Rent Controller in the year 1978, when he was competent to entertain and decide such application in respect of ex parte ejectment order. Hence this was not a case where the appellant was prosecuting his remedy in good faith in a wrong Court. On the contrary he was before a competent Court which was empowered to dispose of his application under Order IX, rule 13 which was accordingly dismissed. In either case the appellant is not entitled to the benefit of the time which he consumed in prosecuting wrong remedies before the Courts. I, therefore, bold that even if this appeal is treated to be one under section 21 of the Ordinance of 1979, then it is hopelessly time barred and must be dismissed as such because there is no cogent ground for condoning the delay.
13. For the above reasons the appeal is dismissed with costs. The appellant shall vacate the premises within three months and hand over its possession to the respondent.
14. The appellant has deposited rent in the Court of the Rent Controller in pursuance of the tentative order. The respondent has requested for the withdrawal of rent but the appellant has alleged that his advance deposit of Rs. 4,500 is lying with the respondent which should be deducted from the amount of rent which has been deposited in tine Court. It is hereby directed that the respondent shall be entitled to withdraw the amount deposited by the appellant excluding the amount of advance deposit which shall be returned to the appellant.