' The material facts culminating in this appeal filled under section 21 of the Sindh Rented Premises Ordinance, 1979, briefly, are that Flat No,43, on the third floor of the building known as "Seema Estate" constructed on Plot No,1K/47, situated in Nazimabad No,1, Karachi, originally belonged to one Mst. Seema Begum, which was purchased by respondent Mst. Akhtar Jehan Begum, through a registered deed dated 16-4-1989. Appellant Muhammad Anis, who was tenant of Mst. Seema Begum in respect of above premises on a rent of Rs,1,000 p.m. Had defaulted in payment of rent with effect from 1-1-1988. He was accordingly served with a notice under section 18 of the Sindh Rented Premises Ordinance, 1979, with regard to the change of ownership. The failure of the appellant to pay or tender rent due to respondent led the parties into this litigation.
2. The appellant who was served with the summons personally did not appear before the Rent Controller on 23-11-1989. The process-server was examined on oath and on 3-1-1990, the service against the appellant was held satisfactory. The case was then adjourned to 3-2-1990 for filing of written statement and on this date also the appellant did not appear before the Rent Controller and consequently the case proceeded ex parte. On 3-3-1990, the application for ejectment was accepted, and the appellant was allowed two months' time to vacate the demised premises.
3. Since the appellant failed to vacate the demised premises, an application for execution was filed before the Rent Controller on 21-5-1990. A notice was issued to appellant, who at his own showing applied for adjournment on 11-8-1990. Various adjournments were then sought, and it was only on 3-11-1990 that an application under Order 9, Rule 13, C.P.C. Was moved on behalf of the appellant for setting aside ex parte order dated 3-3-1990, which was dismissed on 3-1-1991. It is in these circumstances that the present appeal has been filed.
4. I have heard Mr. Latif-ur-Rehman, learned counsel for the appellant and Mr. Ghulam Ali Khokhar, learned counsel for the respondent, who is on preadmission notice.
5. The learned counsel for the appellant has referred to several points but eventually confined his argument in the main to three contentions:
(I) That the service of summons on the appellant was not effected properly and consequently the proceedings taken ex parte were illegal.
(ii) That the note dated 23-11-1989 recorded by the Reader in the order sheet on the basis of which the service against the appellant was held satisfactory was illegal and it did not authorise the Rent Controller on a subsequent date to proceed ex parte.
(iii) That the appellant was lying ill and consequently he could not make the application under Order 9, rule 13, C.P.C., within time, and the delay, if any was liable to be condoned on this ground.
6. The perusal of the record shows that the appellant was served in person for his appearance before the Rent Controller on 23-11-1989. He, however, failed to appear before the Rent Controller, and consquently after recording the statement of process-server on oath, the Rent Controller held the service good, which ultimately resulted into an ex parte order of ejectment passed on 3-3-1990.
The appellant has not seriously questioned the factum of service of summons upon him. The explanation furnished by him in this behalf finds place in paragraph 8 of the memorandum of appeal in the following words:- "That the respondent's brother Syed Razi Ahmed served him some light refreshment with tea with his own hands and after taking tea the sense of the appellant became ineffective which he thought it may be due to high blood pressure and it need him to believe that the respondent with the collaboration of her brother obtained his signature for the purpose of proving service of the said ex parte Rent case on the appellant. The Bailiff's report dated 18-11-1989 regarding the service of summons of the said Rent case is the result of malpractice and mechanisation of the respondent and her brother Syed Razi Ahmed, consequent upon which the said rent case was proceeded ex parte and finally an ex parte judgment dated 3-3-1990 announced by the learned lower Court."
9. It may be added that the appellant has not disputed the genuineness of his signature on the copy of summons, which is duly proved by the process-server, who had no reason to depose falsely against him. In cases, where the defendant/opponent is served with summons personally, the starting point of limitation is the date on which the decree/order is passed. Article 164 of the Limitation Act, 1908, prescribes a period of thirty days for making an application under Order 9, rule 13, C.P.C., which will be counted from the date of decree or where the summons was not duly served, when the applicant has knowledge of the decree. On the face of the record the application under Order 9, rule 13, C.P.C. Could have been filed upto 3-4-1990, but the same was delayed till 3- 11-1990, and was barred by time by seven months.
10. Even if it is assumed for the sake of arguments that the appellant was not served properly and only his signatures were obtained, it is clear from the record that he had notice of execution application on 11-8-1990. The application under Order 9, rule 13, C.P.C. Was, however, not filed within thirty days of the knowledge, but it was filed on 3-11-1990 long after the expiry of period of limitation.
The photo-copy of medical certificate, which is placed on record simply suggests that the appellant was operated upon for hernia on 3-10-1990. There is nothing on record to even faintly suggest that the appellant was all along ill for a period of one year during which the above developments took place.
11. Mr. Latif-ur-Rehman, learned counsel for the appellant has placed reliance upon following authorities in support of his contention that fhe delay, if any, was condonable:-
(i) Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21).
(ii) Abdul Rashid v. Abdul Shamim and another 1981 CLC 550).
(iii) Mashlakhuddin v. Syed Ali Haider (1982 SCM R 570).
(iv) Mst. Rukiya Bai and others v. Mst. Aqila Begum and others (1985 SCM R 977).
(v) Navaid Hussain v. Mrs. A. Mirza (1982 CLC 1518).
(vi) Muhammad Sadiq v. Zaheer Ahmad (1984 CLC 2236).
(vii) Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat (1989 SCM R 883).
(viii) Moulvi Abdul. Ghani v. Mir Muhammad Amin and others (1990 SCM R 671).
12. There can be no cavil with the proposition of law enunciated in these cases, but having regard to the circumstances indicated above, I abstain from encumbering this judgment by a detailed examination of these cases, which are distinguishable.
13. With regard to the objection about the note recorded by the Reader, reliance is placed upon the case of Abdul Shakoor v. Syed Shahid Hussain, reported in 1984 SCM R 174, which is only an order granting leave to appeal. The facts of the present case are, however, different. On 23-11-1989, which was the first date of hearing, the Rent Controller was on leave and in his absence the Reader had noted down the following:- "P.O. Is on leave. Case called. Applicant Advocate present. Notice returned served with the endorsement of bailiff. None is present for the opponent side. Put off to 2-12-1989 for orders."
The order in this case was passed by the Rent Controller himself on 3-1-1990 after he recorded the statement of process server on oath. No irregularity or C illegality was committed by adopting this procedure.
14. Even otherwise the delay in filing an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, cannot be condoned as the provisions of section 5 of the Limitation Act, 1908, are not applicable to such appeals. If any authority is needed the case reported as Syed Muhammad v. Mazhar All Khan (PLD 1981 Kar. 76), may he cited with advantage.
15. For the foregoing reasons the appeal against the order dated 3-3-1990 being barred by time is dismissed in limine. Two months' time is, however, allowed to appellant to vacate the demised premises.
' Consequently C.M.A. No,33 of 1991 is also dismissed.