' The respondent filed a petition against the appellant for its ejectment from the property in dispute on the ground of bona fide personal use. It was pleaded that the respondent was residing with his relatives and required the house in question for his own residence. The appellant resisted the petition and denied that the demised premises were required by the respondent for personal use. It was, also asserted that the respondent had other houses with him and his move for the appellant's ejectment was not bona fide.
2. In support of ejectment application, respondent appeared as his own witness, first on 20-12-1975 and then again on 5-6-1916. In addition to this he tendered in evidence the copy of the notice (Exh.
A. 1), sent by him to the Manager of the appellant Bank, and reply thereto received by him (Exh. R.
2). He also produced the rent note, dated 1-4-1970 (Exh. A. 4). On the other hand, the appellant's evidence consisted of the statement of its Local Manager, namely lqbal Hussain Qureshi.
3. The learned Rent Controller after disposing of some preliminary objections raised by the appellant, by his order, dated 13-10-1976, accepted the respondent's contention that he with. His family was residing with his relatives and required the house in dispute in good faith for his personal use. The appellant was thus, ordered to be evicted.
4. In appeal the appellant assailed the ejectment order on the plea that the building in dispute was non-residential and could not be got vacated for residential purposes. The learned District Judge repelled this contention and maintained that the property in question was let out to the appellant for office and residential purposes, and that therefore, it could not be treated as non-residential building. It appears that part of the building has been let out by the respondent to a telephone operator for residential purposes, at the monthly rent of Rs,
60. It was stated so by the respondent in his deposition during cross-examination. This fact was sought to be used by the appellant before the learned District Judge to question the respondent's bona fide. The learned District Judge, however, did not accept this argument and maintained that the respondent was putting up with his relatives; he was neither cross-examined on this point nor any evidence was led to rebut it.
He, thus upheld the findings of the learned Rent Controller that the house was needed by the respondent bona fide for personal use.
5. The learned appellate authority's order, dated 10-2-1977, has been called in question by the unsuccessful tenant through the second appeal.
6. I have heard the learned counsel for the parties and examined the record.
The first submission made by the appellant's learned counsel assailing the impugned order was, that the demised property was a non-residential building ; it could be got vacated only if the respondent required it for his own use in contemplation of section 13 (3) (a) (ii) of the Rent Restriction Ordinance. The contention was that the appellant could not be evicted unless the demised premises were needed by the respondent for running a business therein. In this connection the learned counsel heavily relied on the respondent's statement dated 20-11-1975, in which he admitted that he leased out the house to the hank for business purposes. These arguments of the learned counsel do not furnish basis for interferring with the concurrent finding of, the learned Courts below.
The building of which demised premises are part and parcel is thus being used for a composite purpose and cannot be categorised as "non-residential" building. Furthermore, section 11 of the Ordinance prohibits conversion of residential building into a non-residential building without the permission of the Rent Controller. There is no restriction on converting a non-residential building into a residential one. The learned counsel, however, came forth with another plea that the respondent could get the demised property vacated only if he had B no other house at his disposal and as the possession of the house leased out by him could be obtained by initiating ejectment proceedings, it was not open to the respondent to seek the appellant's eviction from the non- residential building for its utilization for residential purpose. This submission is also without any substance. The Rent Restriction Ordinance does not impose any such condition. The choice lies with the respondent.
' As long as his requirement is bona fide and he is not in possession of any other building suitable for his requirement he is entitled to apply for the appellant's ejectment. While appearing as his own witness, the respondent unequivocally stated that he 'is residing with his relatives in a miserable condition, he has his family and requires the house in dispute for personal use. This statement on oath falls in line with the averments made in the ejectment petition. There is nothing in rebuttal. The learned two Courts below thus, rightly held that the respondent needed the house in good faith for his residence. This is a finding of fact. The appellant has failed to make out a case for interference therewith in second appeal.
7. There is another formidable hurdle in accepting this appeal. The appeal was filed on 16-5-1977, without the certified copy of the Rent Controller's Order. The appellant applied for the copy on 4-8- 1977, which was issued on 8-8-1977. He filed it in the Court on 31-8-1977. While filing the second appeal, the appellant did not seek permission of the Court that production of the copy of the Rent Controller's order may be dispensed with. The office, however, raised an objection to the non-filing of copy of Rent Controller's Order and returned the memorandum of appeal to the appellant's learned counsel for removal of this as well as a few other objections. The appeal was refiled on 18- 7-1977 again without the copy of the Rent Controller's Order.
8. Relying on section 15(4) of the Ordinance read with Order XLII, rule 1 of the C. P. C. It was argued on behalf of the respondent that non-filing of the copy of the Rent Controller's Order, with the memorandum of appeal within the period of limitation was fatal to the maintainability of the appeal. In support of his this submission the learned counsel heavily relied on Muhammad Hanif v.
Faqir Muhammad (1) and Akbar Khan v. Muhammad Razzak (2).
9. There is lot of force in the stand taken by the respondent's learned counsel. Under the explanation appended to subsection (4) of section 15 of the Ordinance, an appeal from the order of the appellate authority has got to be heard and determined as if it is an appeal from an appellate order and the provisions of the First Schedule of the C. P. C. Relating to the appeals, with such modification as the context may require, has been made applicable thereto. Order XLII, rule 1 read with Order XLI, rule 1 of the C. P. C. Ordains that memorandum of second appeal shall be accompanied by copy of
(1) PLD 1977 Lab. 1214 (2) PLD 1979 SC 830 the judgment of the first Court, unless the Appellate Court dispenses therewith. It is, thus, obvious that filing of the copy of the order of the Rent Controller with the memorandum of second appeal is mandatory. As observed above, the appellant never applied for dispensation with the copy of the Rent Controller's Order. A learned Single Judge of this Court in Muhammad Hanif's case after referring to some case-law on the subject observed: ........... If the filing of such a copy is not dispensed with by the High Court, it is mandatory for the appellant to place such copy on the record within the period of limitation. If the provisions of rule 2 of Order XLVII, C. P. C. Are not complied with the appeal cannot be treated to be properly constituted. In any case after the expiry of the period of limitation for an appeal such an appeal would be liable to be dismissed as barred by time."
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13. The appellant has moved an application under section 5 of the Limitation Act for condonation of the delay. The reason assigned therein is that no notice was issue. To the appellant by the copying agency informing it to collect the copy ; it was on 28-4-1977, that the copy was delivered to the appellant. The application is accompanied by an affidavit. The respondent has not filed any counter-affidavit to suggest that the appellant had due notice of the preparation of the copy and that the Bank was diligent in collecting copy from the copying agency. It is well-established that the time spent for obtaining the copies can be excluded under section 5 of the Limitation Act and the time limit can be further extended if the copying agency fails to give any information or gives wrong information to the party as to the date on which the copies would be ready. Reference in this connection may be made to West Pakistan Industrial Development Corporation v. Aziz Qureshi (1).
In this view of the matter, the period of limitation shall be reckoned from 28-4-1977, when the copy of the District Judge's Order was delivered to the appellant and the appeal cannot be dubbed as time-barred on this ground.
14. For the forgoing reasons the appeal fails and is accordingly dismissed with costs.
15. The appellant is allowed a period of four months to put the respondent in possession of the demised property. This time has been granted with the consent's of the respondent's learned counsel.
(1) PLD 1973 SC 222