This is a landlord's second appeal under section 15(4) of the Punjab Urnab Rent Restirction Ordinance, 1959 against the order of the Additional District Judge, Lahore dated 18-5-1992 affirming the order of the Rent Controller dated 14-1-1991 whereby the appellant's application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 seeking eviction of the respondents from property bearing No.S-90-R-10, Urdu Bazar, Lahore had been dismissed.
2. This appeal had earlier been allowed by a learned Single Judge Gul Zarin Kiani, J. On 3-3-1993.
That order was, however, challenged by the respondents by filing an appeal before the Supreme Court of Pakistan which was allowed on 11-4-1995 on the ground that the appeal of the appellant before this Court was barred by time for the condonation of which the appellant had moved an application under section 5 of the Limitation Act, 1908 but that application was not considered nor had the delay been condoned before the appeal was decided on merits.
3. In first question which, therefore, arises is of limitation. It is not disputed by the appellant's learned counsel that this appeal has been filed beyond the prescribed period of limitation. He has, however, argued that at the time when the first appeal was decided by the Additional District Judge the view prevailing with the Courts was that no second appeal can be filed in cases where the ejectment petition had been instituted prior to coming in force of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1991 which was overruled by the Supreme Court of Pakistan in Haji M. Ibrahim etc. v. Mst. Surrayiaun Nisa and others PLD 1992 SC 637. He stated that after the judgment of the Supreme Court the appellant applied for certified copy of the impugned judgment which was made available on 19-10-1992 whereafter the appeal was filed on 20-10-1992 without any further delay. The learned counsel has maintained that in these circumstances the appellant is entitled to have the delay in filing the appeal condoned. Reliance has been placed upon East and West Steamship Company v. Queens Land Insurance Co. Ltd. PLD 1961 Karachi 317, Hatim A.I v. Mst.
Zulekhabibi and others PLD 1964 Karachi 399 Evacuee Trust Board, Government of Pakistan, Lahore and another v. Muslim High School through its Secretary PLD 1973 Karachi 618, Allah Din v. Ghulam Muhammad etc. NLR 1980 Civil (Lahore) 509.
4. The learned counsel for the -respondents has opposed the application, both on merits as also by raising a preliminary objection that section 5 of the Limitation Act, 1908 does not apply to the second appeal before this Court and as such delay in filing the appeal cannot be condoned.
Support in this behalf has been sought from the pronouncement of the Supreme Court in A.I Muhammad and others v. Fazal Hussain and others 1983 SCMR 1239.
5. According to the averments made in the application under section 5 of the Limitation Act, 1908, the appeal is barred by 20 days, condonation of which-- has been sought by filing the present application. However, I am afraid, this application does not lie inasmuch section 5 of the Limitation Act, 1908 does not apply to second appeal before this Court in view of section 29(2) of the Limitation Act, 1908.
6. Admittedly the limitation provided by section 15(4) of the Punjab Urban Rent Restriction Ordinance, 1959 for filing second appeal is 30 days while according to Article 156 of the Limitation Act, 1908 second appeal in this Court could be filed within 90 days. Thus limitation prescribed for filing second appeal under special law i.e. Punjab Urban Rent Restriction Ordinance, 1959 being different from the period prescribed by the Limitation Act for filing second appeal, section 5 of the Act stands excluded in view of the clear language employed in subsection (2) of section 29 of the Limitation Act. The controversy in this behalf stands settled by the Supreme Court of Pakistan in A.I Muhammad's case supra and, therefore, need not be dilated upon any further. The application under section 5 of the Limitation Act, 1908, therefore, merit rejection on this ground alone.
7. Even otherwise, having heard the learned counsel for the parties and perused the record, I am of the view that no sufficient cause for condoning the delay is made out. If the petitioner has indeed been misled by the judgment of the Supreme Court holding that no second appeal lies, the impugned judgment of the Additional District Judge could have been challenged by filing a Constitutional petition. However, no effort was made by the appellant till 6-7-1992 for obtaining the certified copies which shows that he was, as a matter of fact, not interested in challenging the order of the Additional District Judge any further.