' These are two second Appeals Nos. 22 and 30 of 1982 arising out of one and the same judgment dated 30th January, 1982 passed by the learned VIlth Additional District Judge, Karachi, in Rent Appeal No.202 of 1979 under section 15 of the Sind Urban Rent Restriction Ordinance, 1959.
2. The facts leading to these appeals are that the appellant in Appeal No.22 of 1982 is the landlord and owner of a residential house bearing No.119/19 in Federal 'B; Area Karachi and the respondent is his tenant at a monthly rent of Rs.140. The appellant filed an ejectment application in March, 1976 against the respondent tenant on the ground of default in payment of rent since October, 1974 onwards and personal requirement of the said premises for bona fide use of his own as well as for his son of marriageable age. The ejectment application was dismissed on both the grounds by the learned Rent Controller by his order dated 15-2-1979. On appeal filed by the appellant the said order of the learned Rent Controller was partly set aside on the ground of default only and the ejectment of the respondent was ordered by the learned VIIth Additional District Judge, Karachi by his judgment dated 30-1-1982. Against the said judgment two separate appeals have been filed by the appellant-landlord as well as the respondent-tenant bearing II-Appeals Nos. 22 and 30 of 1982 respectively, which are before me.
3. I have heard Mr. Abdul Aziz Khan, learned counsel for the appellant in II-Appeal No.22 of 1982 and respondent in II-Appeal No.30 of 1982 as well as Mr. Muhammad Sadiq learned counsel for the appellant in II-Appeal No.30 of 1982 and respondent in II-Appeal No.22 of 1982 and intend to dispose of both these appeals by this judgment.
4. To deal with the II-Appeal No.22 of 1982, Mr.Muhammad Sadiq learned counsel for the respondent took a preliminary objection that the appeal filed in the Ist. Appellate Court was time- barred. In support of his contention he submitted that the judgment of the learned Rent Controller was pronounced on 15-2-1979. Learned counsel for the landlord appearing in the Court of the learned Rent Controller filed an application for certified copy on 17-2-1979 and obtained a copy on 31-3-1979 which was filed on 8-4-1979 alongwith the memo. of appeal. Learned counsel further submitted that the landlord under his own signature did also file an application for certified copy in the Court of learned Rent Controller on 26-2-1979 and a certified copy of the judgment, on the basis of the said application, was obtained by the landlord on 13-3-1979. He, therefore, contended that on the basis of the copy earlier obtained on 13-3-1979 the first appeal was barred by five days.
5. Mr.Muhammad Sadiq, learned counsel for the respondent-tenant invited my attention to the application dated 26-2-1979 for a certified copy allegedly signed by the appellant-landlord and a note by some one on the back of the said application showing that the cost on the said application was deposited on 11-3-1979 and the copy was delivered on 12-3-1979.
6. Mr. Abdul Aziz Khan made three-fold submissions in this respect, firstly that no such application was made or any other copy was obtained by his client, except the one filed alongwith the memo. of appeal in the 1st Appellate Court, secondly that no copy could be issued on the second application earlier than 31-3-1979, and thirdly that even if it is assumed for the sake of argument, that the appellant had obtained a certified copy of the judgment earlier than the copy, filed alongwith the memo. of appeal, the Court will not embark on an enquiry into that and will confine itself to the copy submitted alongwith the memo. of appeal, for purposes of exclusion of the time requisite for obtaining copy under section 12(2) of the Limitation Act, 1908.
7. Regarding the first submission, Mr. Abdul Aziz Khan, learned counsel for the appellant-landlord invited my attention to the objections field by the appellant in the Court of the learned Additional District Judge wherein it was submitted by the learned counsel appearing for the appellant- landlord in Rent Appeal No.202/1979 "that the appellant had filed through his Advocate, under the Advocate's signature, only one application on 17-2-1979 for grant of certified copy of the impugned order of the learned Rent Controller dated 15-2-1979; and, after having done so, as a matter of fact neither had the appellant made any other application under his signature on 26-2-1979 or on other date for grant of another certified copy of the said impugned order, nor had he authorised anyone else to do so on his behalf, nor was there any necessity for so doing under his signature as his Advocate had earlier made an application for certified copy on 17-2-1979. Consequently, neither the appellant had either paid for another certified copy on 11-3-1979 or received the said another certified copy on 12-3-1979 or on any other date: The appellant's Advocate had applied for and taken only one certified copy which alone was received on 31-3-1979 and which has been filed with the appeal memo. in this case. No counter objections were filed by the respondent-tenant in the said appeal. However, the point was taken at the time of arguments which was repelled by the learned Judge who held that the appeal was not time-barred.
8. As regards second submission, Mr. Abdul Aziz Khan referred to Rule 323(3) of the Sind Civil Courts Rules that the preparation of copies could be undertaken in accordance with the serial order of applications unless otherwise ordered by the Judge. Admittedly there being no order of the Judge the copy on subsequent application could not be delivered to the appellant earlier than the copy produced alongwith the memo of appeal. He also referred to rule 322,sub-rule (1) wherein it has been provided that no copy shall be made of any official document except under the order in writing of the Judge.
9. In support of his third submission he referred to a number of decisions reported as Panjam Thirumala Reddi v. C.K. Anavemareddi and others AIR 1934 Mad. 306; Mathela and others v. Sher Muhammad AIR 1935 Lah. 682; State v. Kashi Prasad AIR (37) 1950 All. 486; Kanchhedilal Umrao Singh v. Maursi Ranjeet Kachhi AIR 1960;Madh. Pra. 140 and Purshattam Narayan v. Sugan Chand Pannalal and others AIR 1964 Mad. Pra.
27.
10. In the first case AIR 1934 Mad. 306 it was observed by a Full Bench of Madras High Court that the time requisite in section 12 of the Limitation Act is the time beyond the appellant's control occupied in obtaining the copy which accompanies the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for copy had been filed at some other date.
11. In the second case AIR 1935 Lah. 682 a Division Bench of the Lahore High Court dissenting with the decision reported in 1934 Mad. 306 and following a decision of the Privy Council reported as Pramatha Nath Roy. v. William Arthur Lee 1922 P C 352 observed-- "that the words "time requisite" mean simply. the time required by the appellant to obtain a copy of the decree, assuming that he acted with reasonable promptitude and diligence. It appears to me to follow from that that the time requisite for obtaining a copy is the shortest time during which a copy could have been obtained by the appellant and that it has nothing to do with the amount of time spent by him in obtaining the copy which he chooses to file with the memorandum of appeal."
12. In the third case AIR 1950 All. 486 a learned Single Judge of the Allahabad High Court dissenting with the view as expressed by the Division Bench of the Lahore High Court in AIR 1935 Lah.
682. and relying on the view of the Full Bench of the Madras High Court in AIR (21) 1934 Mad. 306 held that the time requisite for the preparation of a copy is to be with respect to the time requisite for the preparation of the copy which accompanied the appeal and not for the preparation of any other copy.
13. In the fourth case AIR 1960 Madh.Pra. 140 relying on the earlier two decisions of the Mad. and Allahabad High Courts referred to above, AIR 1934 Madras 306 and AIR 1950 All. 486 observed that where copies of the judgment and decree are obtained but are not available for being filed owing to their loss or other cause and subsequently another application for copies is made and an appeal is filed with these copies, the time requisite for obtaining the copies which accompany the memorandum of appeal should be excluded and not the time spent in obtaining the other copies.
14. In the fifth case which is again of the Madhya Pradesh High Court AIR 1964 Madh.Pra. 27 relying on AIR 1934 Mad. 306 (F.B) but dissenting with the decision reported as State v. Kashi Prasad AIR 1952 Him Pra 6, observed as under:- "Time requisite" for obtaining a copy has relation only to the copy filed with the appeal. Supposing for instance, a party intending to prefer an appeal obtains a certified copy, but it is lost or destroyed. He then obtains another copy. Can it be said that the period to be excluded should be that which was spent in obtaining the first, but not the second, which is actually filed with the memorandum of appeal?"
15. The point in issue also came up before the Supreme Court of India in the two decisions namely State of U.P. v. Maharaja Narain and others AIR 1968 SC 960 and The Commissioner Sales Tax U.P. v. M/s. Madanlal Dan & Sons Bareilly AIR 1977 SC 523 which Mr.Abdul Aziz Khan also referred to in the case, on further time being granted to him.
16. The Supreme Court of India having considered a number of judgments found that the decision of the Judicial Committee AIR 1922 P C 352 as relied on by the Lahore High Court in its decision AIR 1935 Lah. 682 did not bear on the question under consideration. Dissenting with the decision of the Lahore High Court, referred to above, it was therefore, held by the learned Judges of the Supreme Court as under:- "The expression time requisite cannot be understood as the time absolutely necessary for obtaining the copy of the order. What is deductible under subsection 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. It must be remembered that subsection (2) of section 12 enlarges the period of limitation prescribed under entry 157 of schedule I. That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date. That action lays no obligation on the appellant to be prompt in his application for a copy of the order. A plain reading of section 12(2) shows that in computing the period of limitation prescribed for an appeal, the day on which the judgment or order complained of was pronounced and the time taken by the Court to make available the copy applied for, have to be excluded. There is no justifica tion for restricting the scope of that provision.
' If the appellate Courts are required to find out in every appeal filed before them the minimum time required for obtaining a copy of the order appealed from, it would be unworkable. In that event every time an appeal is filed, the Court not only will have to see whether the appeal is in time on the basis of the information available from the copy of the order filed alongwith the memorandum of appeal but it must go, further and hold an enquiry whether any other copy had been made available to the appellant and if so, what was the time taken by the Court to make available that copy. This would lead to a great deal of confusion and enquiries into the alleged lathes or dilatoriness in respect not of copies produced with the memorandum of appeal but about other copies which he might have got and used for other purposes with which the Court has nothing to do."
17. In the other case reported in AIR 1977 SC 523 the Supreme Court relying on its earlier decision again observed that: - "The Lahore decision undoubtedly supports the view taken by the High Court. It lays down that the words "time requisite" mean simply time required by the appellant to obtain a copy of the decree assuming that he acted with the reasonable promptitude and diligence. It further lays down that the time requisite for obtaining a copy is the shortest time during which the copy would have been obtained by the appellant, and it has nothing to do with the amount of time spent by him in obtaining the copy which he chooses to file with the memorandum of appeal. With respect to the learned judges who decided that case we are unable to spell out from the language of section 12
(2) the requirement that the appellant should act with reasonable promptitude and diligence and the further condition that the time requisite for obtaining a copy should be the shortest time during which a copy could have been obtained by the appellant. We are of the opinion that the said decision does not lay down the law correct.
17. I may, however, state that the learned counsel for the parties, in spite of search and time given for the purpose, were not able to lay their hands on any decision of the Courts of Pakistan. Learned counsel for the respondent in this appeal was also not able to cite any case-law in support of his contention.
18. After careful consideration of the several decisions of the Indian Jurisdiction, as referred to above, I am clear in my mind that what is required under section 12 (2) of the Limitation Act, 1908 is the time requisite for obtaining copy for purposes of exclusion from the period of limitation prescribed under law for filing appeal or an application for leave to appeal or an application for review of judgment will be calculated on the basis of certified copy filed by the appellant or the applicant alongwith the memo. of appeal or application, as the case may be. The Court has nothing to do with any other copy obtained by the appellant/applicant and not filed alongwith the memo of appeal/application, because, in that case, the Court will have to hold an enquiry whether any other copy was obtained by the appellant which is not warranted by law. The language of section 12(2) of the Limitation Act does not spell out any such requirement or obligation on the part of the Court. I am, therefore, of the view that the appeal filed by the appellant in the First Appellate Court was within time. The view expressed in AIR 1935 Lah. 682 has already been dissented by several High Courts and the Supreme Court of Indian jurisdiction and I have no reason to differ with them in dissenting with the Lahore decision.
19. Now, coming to the merits of the case in II-Appeal No.22/82, Mr.Abdul Aziz Khan, learned counsel for the appellant relied on a letter issued by Rashid Textile Mills, where the appellant is employed whereby the appellant was asked to vacate the staff quarter in his occupation. He further submitted that one of his sons is of marriageable age and the marriage is delayed only for the non-availability of accommodation. But, in this case none from M/s. Rashid Textile Mills was examined which was necessary as there was clear allegation by the respondent-tenant that the said letter was, in fact, managed by the appellant. I enquired from Mr.Sadiq whether the appellant still is residing in the said staff quarter of the Mills? His reply was in the affirmative which Mr. Aziz Khan could neither affirm nor deny. It has also come in the evidence that after about a year of the filing of the application for ejectment, the appellant started construction of the first floor, which, according to him, was incomplete on the date of his examination in the witness-box on 6-3-1978, but as alleged by the respondent-tenant, the first floor was complete. The respondent, however, offered that she was ready to shift to the first floor and vacate the ground floor for the appellant.
Mr. Aziz Khan now states at the bar that the said premises on the first floor is still lying vacant. If the need of the landlord for himself was bona fide and there was an ejectment notice by his employer he would have certainly shifted to the newly constructed first floor of the premises in question or provide the same to his son. I am, therefore, in agreement with the learned Judge that the appellant-landlord has managed the notice in order to create a ground. The two Courts below therefore, seem-to have rightly not believed the appellant-landlord on the point of bona fide personal need.
20. In the other Second Appeal No.30/80 filed by the appellant-tenant against the same judgment of the First Appellate Court whereby she has been ordered to vacate the premises on the ground of default, it was submitted by Mr. Muhammad Sadiq, learned counsel for the appellant that there were Distress Warrant proceedings in the Court of Small Causes and though for some time thereafter the appellant/tenant remitted the rent by money order but later on she paid rent in cash to the respondent-landlord upto September, 1976 but no receipt was issued by him to her.
Admittedly no receipt was ever issued by the respondent-landlord to the appellant. Although no copy of the order passed in Distress Warrant proceedins was produced in either of the two Courts below but it was admitted by Mr.Sadiq before me that the order in D.W. proceedings was passed on 1-1-1974 on special oath taken by the appellant herself. One can very well imagine that, in these circumstances, the relations between the parties (landlord and tenant) were not cordial at the time of the D.W. proceedings. This finds force from the fact that she thereafter sent the rent by money order for several months regularly which is proved by the production of money order coupons Exhs.A/2, A/3 and A/4. These money order coupons relate to the month of March, 1974 to June, 1974, July, 1974 and August, 1974 respectively. There is no other money order coupon produced in the Court. No reason has also been shown as to why she stopped sending the rent by money order and started paying rent in cash directly to the respondent-landlord as alleged. The only reason given by Mr.Sadiq was that the respondent being a poor lady wanted to save five rupees to be spent by her as money order fee. I am not at all satisfied with this explanation. I find myself in agreement with the learned Judge that the appellant-tenant failed to tender or pay the rent to the respondent-landlord since October, 1974 onwards and she was a wilful defaulter.
21. Moreover these are second appeals under section 15(4) of the Sind Urban Rent restriction Ordinance, 1959, which is analoguous to the provisions of section 100 of the Civil Procedure Code. I do not find that the impugned order is contrary to law or the learned Judge has failed to determine any material issue of law arising out of the case or that there is any substantial error or defect in the procedure provided in law for conducting the case before the learned Rent Controller or the First Appellate Court.
22. For the above reasons, I find no substance in these appeals which are dismissed but, in the circumstances, there will be no order as to costs. I, therefore, direct the appellant (Mst.Amina Fatima) in second Appeal No.30 of 1982 to vacate the premises and hand over its vacant possession to the respondent-landlord within one month from the date hereof.