1. ' The appellant has challenged the order dated 7-4-1996, passed by learned IIIrd Senior Civil Judge/Rent Controller, Karachi (South), whereby the eviction application of the respondent was allowed and the appellant was ordered to vacate the possession of case premises within one month's time.
2. ' The relevant facts for filling of this appeal are that respondent Bashir Ahmed Memon, Official Assignee, was appointed as Receiver of the properties, namely, Zainab Market; constructed on plot No,26/6, Sheet No,SB-5, Saddar Bazar Quarters, Karachi, for all purposes by this Court is Suit No,131 of 1992 on 18-4-1993, filed by one of the co-owners of the said property. The appellant, Messrs Pak Libya Holding Co. (Pvt) Ltd. Had shops Nos. 101, 102, 105, 134 and 136, situated on the first floor of the said property at a monthly rent of Rs,2,678. The respondent after the appointment as Receiver, issued notices to all the tenants asking to deposit the rent with him. However, the appellant failed to deposit the monthly rent of the aforesaid shops in spite of so many repeated notices. The case of the respondent further was that though the fact of appointment of the applicant as a Receiver was well within the knowledge of the appellant, yet he did not pay, tender or send the rent to the respondent, thus, has committed wilful default in payment of monthly rent with effect from, 18-4- 1993 and continued the same till the filing of the ejectment application.
3. ' During the proceedings before the Rent Controller the appellant was not served though so many notices were issued through bailiff as well as registered post. Every time the bailiff reported that the premises were locked. Ultimately the orders of substituted service by way of pasting as well as through publication in daily newspaper Mashrique was done on 11-2-1996 and such publication was published in daily Mashrique on 26-2-1996, even then the appellant did not appear and ultimately the rent case was decided ex parte against him.
4. ' In support of the ex parte proof the respondent filed his affidavit in evidence wherein he affirmed all the averments agitated by him in the rent case. Nothing in rebuttal to that effect was brought on record by the appellant, as such the rent application was allowed.
5. ' I have heard Mr. Arshad Kiyani, the learned counsel for the appellants and Mr. Muhammad Azizur Rahman, the learned counsel for the respondent at length and have gone through the record and proceedings of the rent case.
6. ' The learned counsel for the appellant mainly contended that the fact of filing rent case by the respondent and its subsequent ex parte decision was not in the knowledge of the appellant.
7. According to him neither notices were served upon the appellant nor he came to know that any publication to that effect was published in daily Mashrique dated 26-2-1996, as such ex parte order passed against him is liable to be set aside. He further contended that the above mentioned premises were given to the appellant by one Sualeheen S. Paracha, sole proprietor of Messrs Mahboob Bux Carpets while loan agreement executed in between them, whereby possession of the premises was handed over to the appellant for the purpose of storing hypothecated stocks of carpets and the title of the said godown premises would be transferred in the name of the appellant company. It is further argued that in the subsequent loan agreement borrower Sualeheen S. Paracha failed to pay the amount of loan as per agreement and committed an offence of breach of trust by selling the hypothecated stocks of the appellant without his written consent, as such he filed Suit No,641 of 1996 for recovery of loan amount which was decreed in his favour on 30-9-1996. He lastly contended that he came to know about the ex parte order when the notice with regard to attachment of property was affixed, as such the delay in filing of appeal would be counted from the date of knowledge, viz. 22-4-1996. In support he referred the case law reported in 1984 CLC 1618, 1993 CLC 1076, 1995 CLC 315 and PLD 1993 Lahore 706.
8. ' On the other hand, Mr. Muhammad Azizur Rahman, the learned counsel for the respondent, vehemently opposed the contentions of the learned counsel for the appellant and argued that the appeal is time-barred and is liable to be dismissed on this score alone. According to him, there is no provision provided in the Rent Restriction Ordinance, whereby delay in filing the appeals can be condoned as such there is no option except to dismiss the appeal being time-barred. According to him, the impugned order was passed on 7-4-1996 and the application for grant of copies was preferred by the appellant on 22-4-1996 and fees were estimated and deposited on 23-4-1996 and copy was made ready and certified on 24-4-1996 and 25-4-1996, whereas stamps were supplied on 8-5-1996 and copy was delivered on the same day and the appeal was filed on 19-5-1996, as such there is delay of 8 days in filing of the appeal. According to him, the delay would be countable from the day the copies were made ready and were certified which was well within the knowledge of the appellant as he deposited the fees a day earlier. He deliberately provided the stamps on 8- 5-1996 and got the copies on the same day. On this point the learned counsel for the respondent refers to the case of Fateh Muhammad and others v. Malik Qadir Bux, 1975 SCMR 157. He next contended that it was well within the knowledge of the appellant that the respondent was appointed as Receiver by this Court in Civil Suit No,131 of 1992, filed by one of the co-owners of Messrs Mahboob Bux Carpets, the owners of Zainab Market. Admittedly the appellant had not challenged the said decision, as such by the above-referred judgment the Receiver became the owner of Zainab Market and was entitled to receive the rent and in consequences of which he sent so many notices to the appellant for paying the rent which he failed to do so. In rebuttal to the appellant's contention that the premises in question were not given on rent to the appellant, the learned counsel for the respondent has referred to paragraph (8) of the loan agreement and argued that according to this paragraph the premises were given on rent at the rate of Rs,4 per square ft. Per month to the appellant. He lastly contended that the appellant has not mentioned any of the grounds argued appellant's counsel, but on the contrary his version is falsified by him and the appellant in paragraph (4) of the rent appeal has categorically said that he came to know in the second week of April about the pendency of rent case against him when his staff went to the shops for the purpose of confirming as to whether attachment orders of the shops were intact or not. He came to know about the ejectment case after perusing the affixed notice of the trial Court on the doors of the shops. In support of his contention he relied upon the following case law:
(1) 1975 SCMR 157;
(2) PLD 1976 Karachi 105:
(3) PLD 1981 Karachi 76: ' I am in full agreement with the contentions raised by the respondent's counsel. The appellant has mainly challenged the impugned order on the ground that the learned Rent Controller has passed an illegal ex-parte order against him behind his back without his knowledge. Paragraph (4) of the appeal clearly shows that the filing of ejectment case as well as pendency of rent case was well within his knowledge and according to his own saying he got that confirmed through the notice affixed on the door of the premises in question. It would be appropriate to refer paragraph (4) of the appeal, which is reproduced as under: "4. That the Appellant was never in physical possession of the first floor shops of Zainab Market. In fact the hypothecated stock of Carpets was stored therein. The Respondent opted to serve the Court notices on the address of shops in question and it was natural and evident that the Appellant cannot be served and it happen so. That is why the Appellant only came to know in the second week of April of the pendency of Rent Case when staff of Appellant went to the shops for the purpose of confirming as to whether the attachment orders of the shops are intact or not, came to know about the ejectment case after perusing the affixed notices of the trial Court on the doors of shops."
9. ' This version taken by the appellant in the appeal falsifies his entire case as argued before this Court. Irrespective of this, whatever the learned counsel has argued today not even a single contention has been taken down in the memo of appeal, as such he cannot argue out of pleadings and such arguments have no value in the eye of law. Adverting to the delay in filing of appeal, it is seen that the impugned order was passed on 7-4-1996, whereas application for grant of certified copy was made by the appellant on 22-4-1996, fee was estimated and deposited on 23-4-1996 and copy was made ready on 24-4-1996, whereas stamps were supplied on 8-5-1996, as such the appellant, had deliberately avoided to deposit the stamps and received the copy of the order on the date it was made ready and has, thus, committed wilful delay in presenting the appeal within time.
10. According to section 21 of the Ordinance, appeal is to be preferred within 30 days. No provision of any sort has been laid down under this Ordinance whereby delay in filing the appeal can be condoned. The time requisite for obtaining a copy has been defined by the Hon'ble Supreme Court in the case of Fateh Muhammad and others v. Malik Qadir Bux, reported in 1975 SCMR 157. In this authority it has been held that the time between the date on which copy is ready for delivery and the date on which the applicant chooses to take delivery thereof is not a portion of the time requisite for obtaining a copy. In such situation delay cannot be condoned under section 5 of the Limitation Act, if conduct of litigant is negligent and not due to circumstances beyond his control.
11. Same view has been followed by this Court in the case of Syed Jalilur Rahman and 7 others v. Mst.
12. Rasheeda Begum and 10 others, PLD 1976 Kar.
105. This Court in the case of Syed Muhammad v. Nazar Ali Khan, PLD 1981 Kar 76 has held that provisions of section 5 of the Limitation Act are not applicable to the appeals under section 21 of the Ordinance.
13. Applying the abovementioned principles of law, it is held that the appeal apparently is time- barred. The case law referred by the appellant's counsel is on different facts and circumstances and has no bearing with the case in hand.
14. ' For all the foregoing reasons the appeal is dismissed. The order of the learned Rent Controller is maintained. However, the appellant is allowed one month's time to vacate the premises and hand over its possession to the respondent.
15. ' These are the reasons of the short order dated 1-10-1998.