1. ' The brief facts giving rise to this appeal are that on 3-7-1991 Mst. Shirin Begum, respondent No,1 and Mr. M.M.K.A. Zai, respondent No,2 (hereinafter referred as the "Landlord") filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, in the Court of VIIth Rent Controller Karachi South (being Rent Case No,1104 of 1991) for eviction of Mst. Fatima Begum widow of Muhammad Yunus (hereinafter referred to as the "Tenant" on the ground of default in payment of rent from March, 1991 onwards in respect of Flat No,3 Block 5, Raja Mension, Yaqoob Khan Road, Karachi. Mst. Fatima Begum died during the pendency of the proceedings and her son namely Abdul Jabbar was brought on record in her place. Respondent No,2 described himself as Attorney of respondent No,1 in the Ejectment Application. In the Written Statement, the tenant denied having committed any default, stated that he had paid all the arrears of rent and was paying the current rent in accordance with the compromise between the parties in the Supreme Court of Pakistan in C.A. 81-K of 1985 which was approved by the Supreme Court of Pakistan by its order, dated 28-2- 1991. Mr.Zai, Attorney of the landlord filed an affidavit-in-evidence in support of the application on 19-7-1993 wherein he gave the details of the default and the arrears of rent due from the tenant. He was not cross-examined and thereafter, the tenant failed to lead any evidence in rebuttal.
2. Consequently, the Rent Controller came to the conclusion that the tenant had failed to pay the rent from March, 1991 and by order, dated 22-3-1996 allowed the application and directed the tenant to hand over vacant peaceful possession of the premises to the landlord within 90 days of the order.
3. ' Being aggrieved by the said order the tenant (Appellant herein) filed this F.R.A. On 4-8-1997 through Mrs. Salima Nasiruddin, Advocate. The tenant also filed an application under section 5 of the Limitation Act for condonation of delay in filing the appeal (C.M.A. No,544 of 1997). On 10-9-1997 when the appeal came up for Katcha Peshi, Mr. Zai (respondent No,2) appeared and submitted that the appeal was time-barred. The Court directed the office to call for the Record and Proceedings of the rent case from the Rent Controller and adjourned the hearing to a date after receipt of the R&P. On 13-11-1997 respondent No,2 undertook not to eject the tenant till the matter is considered for admission. The hearing of the Katcha Peshi and the applications were adjourned several times on the ground of illness of the learned counsel for the appellant. It appears that the appellant changed his counsel several times during this period. On 25-5-1998 Mr. Raziq Khan, Advocate appeared for the tenant when he and Mr. Zai agreed that the matter be adjourned and the appeal be disposed of finally on the subsequent date. On 17-8-1998 Miss Soofia Saeed filed power on behalf of the tenant and sought time to obtain material instruction from her client. By consent the hearing was adjourned to 24-8-1998. Today Mr. Niaz Hussain Khichi, Advocate filed Vakalatnama on behalf of the appellant and argued the appeal along with Miss Soffia Saeed.
4. ' The first point to be decided before proceeding with the consideration of the appeal on merits is the question of limitation. Admittedly, the Rent Controller passed the order of ejectment on 22-3- 1996 and the appeal was filed on 4-8-1997 which was beyond the period of 30 days provided for filing an appeal in the High Court. The certified copy of the impugned order shows that the application for it was made on 26-7-1997 and it was supplied on 30-7-1997. When asked to explain the delay in filing the appeal, the learned counsel submitted that it was an ex parte order for which there is no period of limitation as held in 1985 CLC 25. When I asked him to explain what he meant by ex parte order, he replied that on 22-3-1997 when the tenant went to the Rent Controller's Court he was informed that the application had been dismissed and therefore, it is an ex parte order and the period of limitation should be counted from the date when he acquired knowledge of the same which was on 26-7-1997. He also added that the appellant had not been supplied with a copy of the affidavit-in-evidence of the landlord's witness and consequently the impugned order is ultra vires, without jurisdiction, non-maintainable and liable to be set aside. This contention of the learned counsel is not supported by the R&P of the Rent Case which is before me. It would be advantageous to reproduce a few Orders from the Diary Sheet of the Rent Case No,1104 of 1991 as follows: "26-5-1993 Case called. None present for applicant side. It is 12 noon. Advocate for opponent is present. Put off to 19-7-1993 for A.E. Of applicant.
5. 19-7-1993 Case called. Advocate for the applicant is present and filed Affidavit in evidence of M.M.K.
6. Zai. None present from opponent side. Put off to 5-8-1993 for cross.
7. 5-8-1993 Ctse called. Advocate for the applicant present. None present from opponent side. In the interest of justice case adjourned to 24-8-1993 for cross.
8. 20-9-1993 Case called. Munshi of Advocate for the applicant is present. None present from opponent side. P 0. Is busy in General Election duty of N.A.
181. P.S.
80. Put of for 25-10-1993 for cross.
9. 25-10-1993 Case called. Advocate for applicant is present. Applicant M.M.K. Zai is also present for cross, since opponent is repeatedly called absent since morning without any notice. It is 12.25 of the noon. Today case is fixed for cross of applicant and none is attending from opponent side, I, therefore, close the side of opponent for cross of applicant. Now for 13-11-1993 for filing A.E. Of opponent.
10. 14-12-1993 Case called. Munshi of Advocate for the applicant is present. Abdul Jabbar is present for opponent. A.E. Of opponent not filed. Put off to 17-1-1994 for A/E/O.
11. 14-2-1994 Case called. Advocate of the applicant is present. Advocate of the opponent filed application for adjournment. Order on it. Put off to 8-3-1994 for A/E/O.
12. 8-3-1994 Case called. Advocate of the applicant is present. Applicant is also present in person and filed application for adjournment. Order on it. Put off to 12-4-1994 for A/E/O.
13. 21-7-1994. Case called. Advocate for applicant is present. While Advocate for opponent as well as his Advocate are repeatedly called absent since morning without intimation. It is now 11-45 a.m.
14. Perusal of record shows that today case is fixed for filing of affidavit in evidence by opponent but as mentioned above none is in attendance on behalf of opwggpLissuc12,Iclslethe side of the opponent for filing the affidavit in evidence. Put of to 21-8-1994 for arguments." (Under linings added).
15. ' The R&P also shows that Mrs. Salima Nasiruddin who was appearing for the tenant filed an application, dated 1-8-1994 for opening the side of the tenant but the same was dismissed for non- prosecution on 19-10-1996.
16. ' In view of the Court orders passed on various dates as reproduced above and the tenant's failed effort to cross-examine the landlord's witness, it cannot be argued that the impugned order was passed in the absence of the tenant. The contention that a copy of the affidavit-in-evidence was not supplied to the tenant or his counsel also does not hold ground. If the tenant chooses to remain absent on several dates of hearing and does not prosecute his application, it does not lie in his mouth to allege that he was not supplied a copy of the affidavit-in-evidence.
17. It is the duty of the litigant as well as his counsel to attend to their case diligently. Apparently, the tenant and his Advocate were grossly negligent. They remained absent and did not appear on several dates of hearing when the matter was adjourned first for cross-examination of the witness and later for filing of affidavit-in-evidence of the tenant and thereafter, for hearing of the application to allow the tenant to cross-examine landlord's witness. The impugned order for ejectment was passed on the basis of the evidence brought on the record which was within the knowledge of the tenant. It cannot be termed as ultra vires, without jurisdiction or mala fide in any sense. The order was passed on 22-3-1996 and the appeal should have been filed within 30 days of the order excluding the time required to obtain a copy of the same which admittedly has not been done.
18. ' The provisions of the Limitation Act are not applicable to the Sindh Rented Premises Ordinance, 1979. Consequently, an application under section 5 of the Limitation Act cannot be used by the tenant to bring the appeal within the period of limitation.
19. ' In view of the above discussion, I have no alternative but to dismiss the appeal as being barred by limitation with costs of Rs,3,000 to be paid by the appellant to the respondents.
20. ' Consequently, all miscellaneous applications also stand dismissed.