' This petition under Article 9 of the Provisional Constitution Order, 1981 has been filed by the tenant to call in question judgment of the learned Additional District Judge, Kasur dated 20-6-1984 whereby order of the learned Rent Controller dated 8-5-1983 directing the ejectment of the petitioner from the premises in dispute was upheld.
2. Facts, briefly stated, are that respondent No, 1 filed an ejectment application against the petitioner stating therein that he had purchased the lease rights of the property in dispute from Munna, respondent No, 2 on 12-2-1981 through a registered sale-deed. Petitioner was a tenant of the said property under respondent No, 2 since July, 1971 on monthly rent of Rs, 25 and that he had also executed a rent note on 6-7-1971, The rent was subsequently enhanced to Rs, 40 p.m. Which the petitioner had been paying to respondent No,
2. It was further alleged that the respondent No, 1 gave a notice to the petitioner on 9-5-1981 through registered post/A. D. Informing him that he had purchased the lease rights in the premises in dispute from respondent No, 2 and demanding possession thereof for construction, personal use and occupation. Petitioner neither paid nor tendered the rent to respondent No,
1. Thus, the ejectment of the petitioner from the premises in dispute was sought on the grounds of personal need and default in payment of rent from 12-2-1981 to 12-6-1981.
3. Petitioner contested the ejectment petition by denying the relationship of landlord and tenant between him and respondent No,
1. He also challenged the legality of the sale in favour of respondent No,
1. He further stated that he had filed a suit in the civil Court challenging the legality of the sale-deed. He also alleged that respondent No, 2 refused to receive the rent and as such he had been depositing the same in the Court.
4. On the pleadings of the parties, following issues were framed :-
(1) Whether the relationship of the landlord and tenant does not exist between the petitioner and respondent No, 1 ? 0. P. R.
(2) Relief.
5. After recording evidence adduced by the parties, the learned Rent Controller came to the conclusion that a notice was sent by respondent No, 1 through registered post/A. D. Which was delivered to the petitioner by the postman. It was further found that the petitioner was a tenant under respondent No, 2 and since the respondent No, 1 had purchased permanent lease rights from respondent No,
2. Petitioner became a tenant under respondent No, 1 and was, therefore, liable to pay rent to him. With these findings/conclusions, the learned Rent Controller held that the relationship of landlord and tenant existed between the parties. As the petitioner had not paid or tendered the rent for the period in question to respondent No, 1, the learned Rent Controller by order dated 8-5-1983 accepted the ejectment petition and directed the petitioner "to hand over the possession of the disputed plot after removing his construction over it on or before 15-7-1983".
6. Petitioner filed a belated appeal which was accompanied by an application under section 5 of the Limitation Act. Delay was sought to be condoned on the ground that the petitioner applied for certified copy of the order of the Rent Controller dated 8-5-1983. On the same day viz. 8-5-1983 which copy was delivered to him on 1-6-1983 ; that the petitioner fell ill on 30-6-1983 which was the last date of limitation ; he remained ailing up to 4-7-1983 and that he filed the appeal on 5-7-1983.
Learned Additional District Judge did not .Accept this explanation as in his view, "if a person fell ill on the last day of the limitation then very strong evidence is to be required as to whether on that day in fact he was ill or not. No medical certificate has been appended to the application to show that he was suffering from such a disease which made him incapable of giving even instructions to his counsel. Simple ailment is no ground for condoning delay if he otherwise was able to give instructions to his counsel for filing appeal. The appellant has not been able to satisfy me in this respect". It was, therefore, held that the petitioner filed an appeal beyond the period of limitation and the same was accordingly dismissed as barred by time.
7. On merits of the case, the learned Additional District Judge found after appraisal of the evidence on the record that "it has been proved beyond any reasonable doubt that the notice under section 13-A was delivered to the appellant and was received by him in due course The appellant has not produced any evidence except his own statement that no notice has been received by him. In the presence of oral as well as documentary evidence produced by the respondent No, 1, the assertion of the appellant that he had not received any notice was not sufficient". It was, therefore, held by the learned Additional District Judge that nonpayment of rent by the petitioner to respondent No, 1 and deposit of the rent in favour of the previous landlord, even after the petitioner had received a notice under section 13-A was manifestation of his contumacious conduct and as such he was rightly ejected. Petitioner's appeal was accordingly dismissed as time-barred as also on merits vide the impugned order. Hence this petition.
8. I have heard the learned counsel for the petitioner as also Sardar Muhammad Tufail, Advocate who held the watching brief of respondent No, 1.
9. Learned counsel for the petitioner has submitted that the premises in dispute was a vacant plot and as such it did not fall within the meaning of "building" or "rented land as defined in the Urban Rent Restriction Ordinance and as such petition under section 13 of the said Ordinance was not competent. This point was not raised either before the Rent Controller or before the appellate Authority. It cannot, therefore, be allowed to be agitated for the first time in the present proceedings. Even otherwise, this point has no merit in so far as in the rent note (Exh. P. 1), executed by the petitioner, it was clearly stated that he took the premises on rent for business purposes i. e.
Premises in dispute, there-fore, clearly fell within the meaning of "rented land" which is defined in the Ordinance as any land let separately for the purpose of being used principally for business or trade.
10. Learned counsel for the petitioner next contended that petitioner had sufficient cause for filing the appeal beyond the period of limitation in so far as he fell ill on the last date of limitation and when he recovered, he immediately filed the appeal. Learned counsel further submitted that the petitioner produced the medical certificate showing that he remained from 30-6-1983 to 4-7-1983 but the learned Additional District has observed that no medical certificate was appended with the application for condonation of delay. Learned counsel, therefore, argued that the refusal of the learned Additional District Judge to condone the delay was the result of misreading of the record and was not sustainable. I am afraid, the learned counsel has misconstrued the observations made in the impugned order regarding the medical certificate. Learned Additional District Judge did not mean that the petitioner produced no medical certificate at all. What he meant was that the medical certificate did not show that the petitioner was suffering from such a disease which made him incapable of giving instructions to his counsel for filing the appeal. Certified copy of the medical certificate has been placed on the present record. Learned counsel for the petitioner was not in a position to contend that the disease mentioned in the said certificate was such which had rendered the petitioner incapable of even giving instructions to his counsel for filing the appeal.
Thus, the petitioner, even if he suffered from such ailment, could well have filed the appeal on 30th of June, 1983, if he was so minded. In this view of the matter, learned Additional District Judge rightly refused to condone the delay.
Apart from what has been held above, law is very well-settled that the question whether the delay should or should not be condoned in a given case is a matter which rests in the discretionary domain of the TribunaliB seized of the matter and the discretion is not open to interference unless it is exercised illegally, capriciously or arbitrarily. Reference in this behalf may be made to Syed Nazar All v. Syed Ibne All and others (1). In the
(1) 1981 SCM R 239 instant case, as shown above, learned Additional District Judge proceeded on correct premises and sound reasons in refusing to condone the delay and he cannot be said to have exercised his discretion capriciously or arbitrarily. That being so, the refusal of the learned Additional District Judge to condone the delay is not open to interference in Constitutional jurisdiction of this Court.
11. Learned counsel raised an argument in the alternative that the delay in this case had impliedly been condoned at the time of admission of the appeal and as such the learned Additional District Judge was not competent to reopen the question of limitation and to hold that the appeal was time-barred. In amplification of this argument, it was submitted by the learned counsel that the appeal filed before the learned Additional District Judge was accompanied by an application under section 5 of the Limitation Act. Learned Additional District Judge was, therefore, quite aware of the question of limitation and yet he admitted the appeal to regular hearing which fact, according to the learned counsel, constituted implied condonation of delay. In support of his submission, learned counsel relied on Syed Faiz Ali Shah v. Chief Administrator, Auqaf Lahore (1).
Facts in the present case were that a Letters Patent Appeal was filed beyond limitation. Office recorded a note on the memo. Of appeal that it was barred by limitation but the Division Bench admitted the appeal by passing the following order -We, however, direct that this appeal shall be set down for hearing ' When the appeal actually came up for hearing before another Division Bench, the Court suo motu raised the question of limitation and dismissed the appeal as time-bared without affording an opportunity to the appellant to explain the delay and to seek its condonation. Matter was taken to the Supreme Court and their Lordships of the Supreme Court held that "the word 'however' used in the order of the admitting Bench as already pointed out would not have been used if the admitting Bench had not been conscious of the office note_ regarding limitation. It seems to indicate that notwithstanding the office note the admitting Bench admitted the appeal for regular hearing and this it could only have done after condoning the delay as required by the rule quoted above . . . . - "In our view, since the order of the admitting Bench was susceptible of interpretation that the delay, if any, had been condoned, it could well have misled the appellant and his learned counsel into believing that the delay having been already condoned, no further application for the condonation of the delay, if any, was necessary. In the circumstances, it was only fair that the Bench finally hearing the appeal should have when raising the question suo motu, without any objection from the respondent, given an opportunity to the appellant to explain the delay". In this view of the matter, the Honourable Supreme Court allowed the appeal, condoned the delay holding that "in the circumstances, we are of the view that there were sufficient grounds in this case for condoning the delay."
' Judgment of the Supreme Court afore-referred proceeds on its own facts and even so, it has not been categorically held therein that by the admission of the appeal, delay stood condoned impliedly. If that were so, their Lordships themselves would not have condoned the delay as was done
(1) 1974 SCM R 33 in the precedent case. What their Lordships clearly held was that the order of the Letters Patent Bench admitting the appeal, in view of the office note on memo. Of the appeal regarding limitation, was susceptible of interpretation that the delay, if any, had been condoned which could have misled the appellant and his counsel into believing that the delay had already been condoned.
Judgment of the Supreme Court relied upon by the learned counsel, therefore, does not help him.
' On the other hand, learned counsel appearing for contesting respondent who assisted the Court at motion hearing referred to a Division Bench judgment of this Court in Aon Muhammad v.
Rehabilitation Commissioner (1) wherein it was held that "it is well-settled that there could not have been ex parte condonation or extension of time and even in cases where ex parte condonations are made, the affected parties can always, on coming to know of such orders, take exception thereto and claim that the matter is barred by time, the extension of time, if any, is illegal and that effect to plea of limitation should be given. Ex pane condonations of delay would be illegal as being opposed to violation of the principles of natural justice, as well as against law There are various authorities to the effect that even after admission of the cases ex parte, the Court subsequently hearing the matter could dismiss the same as barred by time We hold that this Bench can go into the question of limitation and mere admission of appeal is no bar in that respect".
' In view of the discussion held above, argument of the learned counsel raised in the alternative has also no force.
12. Learned counsel for the petitioner could not dispute the concurrent findings of the two Courts that the notice under section 13-A of the Ordinance was served on the petitioner. It is also an admitted fact that the petitioner was in occupation of the premises in dispute as a tenant under the previous owner, respondent No,
2. It was, therefore, rightly held by the learned Reni. Controller and the learned Additional District Judge that the petitioner became a tenant under respondent No, 2 and was liable to pay rent to him. Learned counsel, however, contended on the authority of Muhammad Jabal v. Attaullah Nisar etc. (2), that the petitioner could not be summarily ejected on the issue of relationship of landlord and tenant having been found against him. Learned counsel submitted that the learned Additional District Judge having affirmed the finding of the learned Rent Controller on the preliminary issue should have remanded the case for fresh decision after framing proper issues relating to default etc. As was directed to be done in the case cited by him. This submission, too, is without any merit. In the case relied upon by the learned counsel, tenants did not take the position that the landlords were not the transferees of the servant quarters or that these were owned by someone else. They denied the relationship of landlord and tenant on the ground that they were not served with the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. It was, therefore, held that the plea taken by the tenants could not be equated with the plea of denial of the title of the landlord and as such they could not be ejected forthwith on the finding that the relationship of landlord and tenant existed. Equitable principle' of forfeiture of tenancy owing to the tenant's denial of the title of the landlord was, however, affirmed with the observation "But this principle' can be invoked only in such cases where the denial is in clear
(1) PLD 1966 Lab. 319 1984 CLC 454 Un mistakable terms". On the facts of the present case, judgment cited by the learned counsel goes against the petitioner who denied the title of his landlord, respondent No, 1 in most unambiguous terms. He not only questioned the sale of the premises in dispute in favour of respondent No, 1 in the ejectment proceedings. He had also filed a civil suit challenging the legality of the said sale. Not only that, he, despite having received the notice under section 13-A, did not pay rent to respondent No, 1 and as alleged by him continued depositing it in the name of his previous landlord. This conduct of the petitioner was also clearly indicative of his denial of landlord's title. In these circumstances, equitable principle referred to above was eminently attracted to the petitioner's case and he was rightly ordered to be ejected summarily after the preliminary issue was found against him. On the admitted position, petitioner was a defaulter and as such no further enquiry into the question of default was called for. In the precedent case, facts were different. Tenants therein were sought to be evicted on the ground of default for the period prior to the institution of the ejectment applications. Tenants had led evidence to show that they had paid the rent for the period in question though they admitted that they had not paid rent after the institution of ejectment applications. Relying on their admissions, learned Rent Controller had ordered their ejectment forthwith. On Second Appeal, High Court set aside the order of ejectment with the direction that "Rent Controller should decide the applications afresh after framing proper issues in accordance with the pleadings of the parties". In the present case, it is not the case of the petitioner that he had paid the rent to respondent No, 1 for the period in question. He was, therefore, rightly ordered to be ejected forthwith.
13. Upshot of the above discussion is that none of the contentions raised by the learned counsel for the petitioner has any merit. This petition is, therefore, dismissed in limine.