' This appeal calls into question the ejectment of the appellant ordered by the 15th Civil Judge and Rent Controller, Karachi on 30th September, 1979.
2. The respondent is L/L in respect of property No. 5 S.S.L/Y.70, out of it 1000 sq. yards were in possession of the appellant. The respondent filed an application in 1974 about damage to the property made by the appellant. The same was resisted by the appellant on the ground that he was the owner of the structures and in any case the construction made by him were necessary to save life of the occupants of the building and in any case the same had not impaired the value and utility of the building of the property. Issue in respect of damage to the property and unauthorised construction and subletting of the premises were framed. However, the subletting was not proved. The issue of ownership of the premises was also framed which was also proved by respondent. The Rent Controller granted the ejectment on the ground that Muhammad Sadiq had proved that the appellant had made unauthorised constructions without the permission of the K.M.C. and that the same had been supported by one Ghulab Shah who had made those constructions. A photograph of the demolished gate and the constructed gate was also exhibited.
3. The appellant had taken up two positions in the appeal. One was that he had not been granted hearing and that he had been condemned unheard. I do not find any justification for last submission because I find from the order sheet that on 2-8-1979 the appellant and his counsel were absent and again on 13-9-1979 they were absent. Still on 18-9-1979 they were found to be absent although the matter had been posted for their evidence. On 20th September, 1979 the parties counsel were before the learned Rent Controller and the counsel for the appellant had stated no instruction and later on Mr. N.K. Jatoi ha, requested for last chance to be given to the appellant for the purose of producing the evidence but the same was refused. It is, therefore, apparent that the appellant had been aware of the procedings going -in before the Rent Controller and yet the appellant did not take sufficient it interest in the case and, therefore, the submission that he was condemned unheard or sufficient opportunity was not given to him was not Justified.
' The second submission of Mr. Jatoi was that there was no finding from the Rent Controller in respect of impairing the value or utility of the building in any manner. The learned counsel submitted that very finding about unauthorised construction is of no consequence unless a finding about impairing the utility or value was arrived at. The submission appears to be correct and I find that only the finding about unauthorised construction had been made and it is only the B written statement of the appellant which contains the nature of the construction but the same has not been formally proved. The appellant has remained absent and has not been able to prove its submissions. In any case the facts remain that no person has made statement as to in what manner the value or utility of the building was impaired. The demolished portion appears to have been reconstructed and to that extent there appears to be no impairing of the value.
4. However, the objection of Mr. Mustafa Lakhani about the appeal being time-barred appears to be justified and the same is fatal to granting of this appeal. The order of ejectment was, dated 30th September, 1979 and section 21 of the S.R.P.O. 1979 allows only 30 days time for filing of the appeal but in this case even the application for certified copies was filed only on 23-12-1979 very much after 30-10-1979 which was the last date for filing the appeal in this case. It is, therefore, obvious that the appeal was hopelessly time-barred as it was filed on 15-1-1980.
5. There is an application under section 5 of the Limitation Act asking for condonation of delay of 77 days accompanied by the affidavit of Bahadur Ali who has stated that he had no knowledge that R.C. No. 2256/74 was fixed before the 15th Civil Judge, Karachi. It is obviously wrong as the learned counsel for the appellant has himself appeared before the Civil Judge and Rent Controller on 20th September, 1979. I do not find sufficient explanation having been given by Bahadur explaining every day's delay of 77 days in this case and, therefore, the application under section 5 of the Limitation Act does not appear to be properly substantiated as the reason given by Bahadur that he was sick and has been in hospital due to heart attack is not substantiated by any medical certificate nor any details were even provided.
6. Apart from above the more important aspect, in the matter of appeal being time-barred, is a ruling reported in PLD 1982 SC 88 where it has been held by the Supreme Court that in the context of the Sind Rented Premises Ordinance, 1979 section 5 of the Limitation Act is excluded by combined reading of clauses (a) and (b) of section 29(2) of the Limitation Act. Such being the position in law the application under section 5 of the Limitation Act was not even competent and had to be dismissed. I, therefore, dismiss this appeal as time-barred. However, in view of the fact that the appellant is running factory in the premises where some labourers are also employed I deem it appropriate that one year's time should be granted to the appellant to vacate the premises because ordinarily it is difficult for a person to obtain commercial premises in Karachi. I had asked Mr. Lakhani for his views and he states that he would leave it to the discretion of the Court but in any case the time granted for vacating the premises should have been on the condition of payment of rent and that writ of possession should be issued directly in case the appellant does not vacate the same after one year. I agree with this submission and, therefore, grant one year's time to the appellant to vacate the premises subject to deposit of rent regularly in the Court. Writ of possession would be issued directly against the appellant in case he fails to vacate the premises on 14th May, 1985. With the above direction appeal is dismissed as time- barred.
Eviction maintained.