The facts which have led up to this appeal are that on the 15th of March 1965 the appellant which is the Evacuee Trust Board demanded from the respondent of Rs. 9,600 as arrears of rent calculated at the rate of two hundred rupees for the period 1st April 1960 to 31 March 1964. The respondent paid 5.000 rupees under protest but thereafter on the 13th of July 1965 filed an application under section 4 of the West Pakistan Urban Rent Restriction Ordinance (Ordinance VI of 1959) asking the Controller to fix the fair rent. The appellant raised the preliminary objection that the Ordinance was not applicable to Trust property and a preliminary issue was therefore framed which the Controller decided against the appellant.
2. The appellant then filed an appeal under section 15 of the Ordinance which was dismissed on the 14th February 1968 by the learned II Additional District Judge, Hyderabad and against this appellate judgment the present II appeal has been filed.
3. Although the respondent was un-represented and has been ex parte in this Court Mr. Ajmal Mian, learned counsel who appeared for the appellant candidly brought to my notice the fact that the present appeal was time-barred and he had made an application under section 5 of the Limitation Act for condonation. The period of limitation is prescribed by section 15 of the Ordinance and section 5 of the Limitation Act does not therefore in express terms apply. Learned counsel have however, invited my attention to a decision of this Court reported as Hatim A.I v. Zulekha Bibi (PLD 1964 Kar. 399) in which the same question was considered by Mr. Justice Waheeduddin Ahmad then a Judge of the High Court and commenting upon the fact that the lower Appellate Court hadst accepted the contention that section 5 of the Limitation Act would not apply, his Lordship went on to observe:- "I have not been impressed by the reasoning of the Appellate Authority. On plain reading of section 29(2) of the Limitation Act it would appear that it only lays down that where special or local law provides for a period different from the period pres--cribed by the First Schedule provisions of the Limitation Act will only apply to the extent expressly specified in the section. Un--doubtedly in such cases section 5 of the Limitation Act would not apply and only sections 4, 9 to 18 and 22 would apply in,, so far and to the extent to which they are not expressly excluded by special or local law.
Thus in order to attract this pro--vision of law two important factors must be kept under con-- sideration. Firstly, whether the special law has prescribed for the appeal a different period of limitation from that prescribed under the First Schedule and, secondly whether under it, the application of sections 4, 9 to 18 and 22 has in any way been curtailed for computing limitation.
Otherwise these provision: of law shall have to be taken into consideration for the purport determining any period prescribed for any appeal by it. Clearly in such event section 5 of the Limitation Act would not be applicable and shall have to be excluded from consideration."
I am in respectful agreement with these observations and have nothing to add and accordingly hold that section 5 of the Limita--petition Act applies and that I have power to condone the delay.
4. Having power to condone the delay is one thing and the question whether in the present circumstances delay should be condoned is quite another. The order in question was made on the 14th February 1968 and not until the 5th of March 1968 was an application made for a certified copy. An affidavit have been filed in support of the application under section 5 of the Limitation Act by one Shafi Mohammad who is the senior Sub---Inspector in the office of the Evacuee Trust Section of the Deputy Commissioner's Office In Hyderabad and it states that the Advocate, meaning the Advocate who appeared for the appellants in the first Appellate Court, did not supply a certified copy to the Government until the 28th of March 1968. The copy was actually delivered by the Court on tine 21st of March and there is no explanation given whatever as to why the advo-- cate did not give it until 7 days later to his client. Even so, the appeal in this Court was not filed until the 22nd April 1968 and the explanation that is offered for this is contained in paragraph 3 of this affidavit which reads thus:- "That no action could be taken in the matter till 10-4-1968 due to an oversight of the clerk concerned. Thereafter the case was dealt with by various officers of the deptt. And finally this deponent reached Karachi in the night of 21-4-68 and has con--tacted the Advocate Mr. Ajmal Mian in the morning of 22-4-1968, for giving instructions. The appeal has been filed on the same day."
Now really this explanation amounts to no explanation at all; it virtually says that the matter was delayed because it was delayed. Certainly on behalf of a private party such an explanation would not have been accepted and I see no reason why a different standard should be set up for Government. The delay is about twenty days and is as I have said not adequately explained. B Moreover, in cases of delay it must be remembered that it is not for the appellant merely to explain the actual delay beyond the period of limitation but to show that his conduct throughout the period has been vigilant enough for the Court to condone the delay that has in fact occurred. If the appeal is filed within the limitation period even though it be upon the last date, then it is within time and the Court cannot say that it should have been filed earlier if the appellant had been more vigilant. Where however, delay has occurred then I think that it is up to the appellant C to show that his conduct throughout the period between the date of the impugned judgment and the filing of the appeal has been of such a character that it would be proper to condone the period of delay that has occurred beyond the period of limitation. Mr. Ajmal Mian had to concede that, by any standard, the delay had not been explained adequately even if the question is merely of explaining the delay of 20 days, without taking into account the previous conduct of the appellant. I hold therefore, that the present appeal is barred by time and that I must dismiss it upon that ground alone.
5. Upon the merits of the matter Mr. Ajmal Mian claims that the question has become largely academic for his client. The claim was put forward that the provisions of the Ordinance do not apply to properties belonging to the appellant and this claim has been rejected by both the Courts below and here I think they were clearly right (See Rahim Bux v. Ahmad Bux (PLD 1964 SC 189).
After the judgments of the lower Courts were delivered however, Mr. Ajmal Mian states that Government have by Notification of 22nd June 1968 directed that the provisions of the Ordinance shall not apply to properties owned by the appellant. That the Government had this power is perfectly clear; section 3 of the Ordinance expressly gives powers to Government to exempt any particular building or rented land or class of building or rented lands from the provisions of the Ordinance. Despite the judg--ments therefore, the appellant would be entitled to rely upon this Notification if it exists. Nor can my present judgment stand in the way of their relying upon this notification because I am pro--posing to dismiss this appeal not upon merits but purely upon the ground of limitation and therefore my judgment cannot be regard--ed as necessarily endorsing the view of the Courts below. Even if it did, if there is such a Notification, obviously it will prevail.
6. In the result, I therefore, dismiss this appeal as time barred; since the respondents are ex parte, I make no order as to costs.