' This second appeal was filed on the 12th of April, 1977 against the order of the Appellate Court passed under section 15 of the West Pakistan Urban Rent Restriction Ordinance dated 15-3-1977.
The appeal was accompanied by a copy of the order of the Additional District Judge, but the copy of the order of the Rent Controller was not attached to it. For this reason C. M. No, 1558-C/1977 was filed seeking exemption for the time being from the production of the certified copy on the ground that notwithstanding an application for such copy being submitted, the same has not been furnished by the Copying Agency. Since the period of limitation for the filing of the appeal had not expired, I admitted the appeal and passed an order of stay of ejectment. I, however, dismissed C.
M. 1558-CP7 holding that no ground was made out for exemption from production of certified copy of the order of the Rent Controller. I directed that the appellant shall file copy at his own risk.
2. On the 26th of May, 1977, C. M. No, 2042-C/1977 was submitted by the respondent for vacation of the stay order. It was alleged at the time of hearing of this petition that the appeal is liable to be dismissed on account of the default of the appellant to file copy of the order of the Rent Controller.
It was further stated at the bar that the appellant had not even applied for the said copy.
3. On a notice served upon the learned counsel for the appellant, he put in appearance and filed a copy of the order of the Rent Controller dated 25-11-1976. It appears that the application for this copy was submitted on the 16th of April, 1977 and it was obtained on the 18th of April, 1977 within three days. Clearly the application for copy was made after the passing of the order of admission of the appeal dated 13-4-1977. It is, therefore, established that the affidavit Ned along with C. M. No, 158-C/1977 and sworn on 12th April, 1977 that the appellant had already applied for obtaining the certified copy was false to the knowledge of the appellant.
4. On this basis the learned counsel for the respondent argued that the appellant has not complied with the provisions of Order XLIL rule 2, C. P. C. Which is applicable mutatis rnutanais to appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance and as such the appeal should be treated as not having been properly filed. He relied upon Ghulam Hussain and 3 others v.
Bahadar and others (1) in which this question was considered in relation to an appeal against Court's decree. It was held that a second appeal filed without tie judgment of the trial Court is improperly constituted. The learned counsel also placed reliance upon Maula Bakhsh v. Abdul Hamid and 4 others (2), Maula Bakhsh v. Abdul Hamid and 4 others (3), Maula Bakhsh v.
Muhammad Ishaq (4) for the proposition that Order XLII of the C. P. C. Is applicable to an appeal filed under section 15(4) of the a bove Ordinance.
5. The learned counsel for the appellant on the other hand argued that the provision of C. P. C.
Particularly Order XLII, rule 2 is not applicable to the case where a Rent Controller has passed the initial order. He urged that the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance is a persona designata and not a Court while Order XLII, C. P. C. Applies to an appeal in which the first decree is passed by a Court. He further relied upon Khalr Muhammad Nizamani v.
Abdul QudJus (5) and argued that non-filing of a copy the Rent Controller's order in a second appeal under the above provision is a mere irregularity. He also cited Azad
(1) PLD 1954 Lab. 361 (2)1971 SC M R 145
(3) PLD 1971 Lab. 512 (4) PLD 1972 Lab. 173 (5)PLD 1965 Kar. 367 & K. Government v. Shaheen Timber Trading Corporation (1) for the same principle.
6. It is clear from the facts of this case that the limitation period for the appeal expired on the 15th of April, 1977. The appellant was entitled to 30 days period for filing appeal and a further period of one day which was spent in obtaining the copy of the order of the Appellate Authority. This copy was applied for on the 11th April, 177 and was supplied the same day. He was, therefore, entitled to file the appeal within 31 days from 15-3-1977. The appeal could thus have been filed by the 15th of April, 1977. The application for copy of the order of the Rent Controller was submitted one day after the expiry of the period of limitation. The appellant is not, therefore, entitled to any further period spent in obtaining this copy.
7. There is no application under section 5 of the Limitation Act nor has any ground been disclosed for the delay in filing the application for a copy of the order of the Rent Controller. In the circumstances of this case it was not even possible to disclose such reason in view of the consciousness of the appellant to the necessity of filing of a copy of the order of the Rent Controller in second appeal filed under section 15(4) of the Ordinance as is evident from his false assertion made in C. M. No, 1558-C/1977 dated 12th April, 1977 and the affidavit submitted in support of it that he had already applied for such a copy. In these circumstances the appellant cannot have the advantage of section 5 of the Limitation Act if once it is found that the appeal without such copy is improperly constituted or is now barred by limitation.
8. The moot question is whether the argument of the learned counsel for the respondent about the necessity of filing the certified copy of the order of the Rent Controller has any force. In this connection reference shall have to be made to the provision of section 15(4) of the Ordinance which reads as follows :- "Section 15(4).-Any party aggrieved by an order passed on appeal by the Appellate Authority appointed by the Government under clause (a) of subsection (1), and if an Appellate Authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of Appellate Authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final.
' Explanation.--An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of Controller and as an appeal from the Appellate Order under section 103 of the Code if it is from an order of the Appellate Authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings."
9. It is evident from the explanation that the appeal to the High Court is not only governed by the provisions of section 100 of the C.P.C. But also by the other provisions of C. P. C. Including its First Schedule relating to appeals. Reference has been made to the applicability of Part VI of the C. P. C.
Also
(1) PLD /965 Azad J & K 9 ' but it has been held in Maula Bakhsh v. Abdul Hamid and 4 others and Maula . Bakhsh v. Abdul Hamid and 4 others; that this reference appears to be a to Part VII of that Code which applies to appeals. It is, therefore, clear that all the provisions in the Civil Procedure Code relating to appeals in Part VII thereto or its Schedule I are applicable to appeals under section 15(4) of the Urban Rent Restriction Ordinance. The explanation to this provision further states that the provisions of Part VII and the First Schedule shall apply "with such modification as the context may require". This provision in the nature of mutatis mutandis was necessary since the Code of Civil Procedure allows appeals against decrees of the Courts, except in cases governed by its section 104 and Order XLII.
Section 100, C. P. C, also deals with appeal against decrees. Section 15 of the Ordinance on the other hand envisages appeals against orders. Application of provisions of appeals against decrees to appeals against orders renders unavoidable the imposition of condition that such provisions shall apply with such modification as the context may require.
10. Order XLII, rule 2, C. P. C. Added by the Lahore High Court which is being relied upon by the learned counsel for the respondent provides that.
"In addition to the copies specified in Order XLI, rule 1 (these copies are copies of the judgment and decree of the Appellate Court) the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith."
Being in Schedule I of the Code this provision is applicable to a second appeal under section 15(4) of the Ordinance with the necessary modification V at the words "shall be accompanied by a copy of the judgment of the Court of first instance" will be read as referring to the copy of the judgment of the '9 Rent Controller. That copy must be filed unless it is dispensed with by this Court.
10-A. The authorities relied upon by the learned counsel for the respondent bold Order XXII, C. P. C.
Applicable to an appeal under section 15(4) of the Ordinance, in view of the provisions of Order XXII, rule 11, C. P. C. Which provide specifically for a betterment of appeal. On the same principle Order XIX, rule 2, C. P. C. Will apply to appeals under the Ordinance. I, therefore, agree with the argument of the learned counsel for the respondent that if the filing of such a copy is not dispersed with by the High Court, it is mandatory for the appellant to place such copy on record within the period of limitation. B If the provisions of rule 2 of Order XLII, C. P. C. Are not complied with the appeal cannot be treated to be properly constituted. In any case after the expiry of the period of limitation for an appeal, such en appeal would be liable to be dismissed as barred by time.
11. The authorities relied upon by the learned counsel for the appellant are clearly distinguishable.
The Karachi authority also dealt with a similar situation in regard to a second appeal under section 15(4) of the Ordinance. In that case too, the appeal was filed without the certified copy of the judgment of the Rent Controller. The appeal was held maintainable in view of the order of condonation passed by the High Court. In the present case I have already rejected the application of the appellant for exempting him from the filing of the copy. I had further directed him to place such a copy on record at his own risk which meant that the delay if any would not be condoned.
12. Before parting with this case I may refer to Muhammad Daud v. Abbas Ali (1) in which it was held that an appeal filed before the District Judge without certified copy of the judgment of the Rent Controller is not defective or incompetent, That case is also distinguishable since the procedure of an appeal before District Judge is provided in section 15(3) of the Ordinance which does not provide for the memorandum of appeal to be accompanied by a certified copy of the order appealed against. It was held that Order XLII rule 1, C. P. C. Was not applicable to such appeal. In a case under section 15(4) the situation would be altogether different. As stated above, here the appeal is regulated by the provisions of the Code of Civil Procedure. The said authority is, therefore, distinguishable.
13. The upshot of this discussion is that the appeal is liable to be dismissed as improperly constituted and alternatively as barred by time. I dismiss it as such with costs.
14. Since a false affidavit has been given by the appellant to support his petition C. M. No 1558- C/1977, a notice shall be served upon him to show cause why he should not be convicted and sentenced under section 193, P. P. C.
(1) P I. D 1975 Lab. 699