' This First Rent Appeal is directed against the ejectment order passed by IXth. Rent Controller Karachi South vide order dated 3-9-1999 in Rent Case No, 1074 of 1998.
2. Brief facts giving rise to this appeal are that the respondent/applicant filed an ejectment application against Muhammad Iqbal Kharal (late), husband of appellant, in respect of tenement No, 6/48, 6th. Floor, Abid Chambers, Shahra-e-Liaquat, Karachi, on the ground of default in payment of rent.
3. The respondent had served notice upon appellant under section 18 of the Sindh Rented Premises Ordinance, 1979 on 10-6-1997 approaching thereby to pay the rent from July, 1997 to the respondent. The appellant deliberately and intentionally failed to pay the rent to the respondent within the stipulated time. The appellant did not pay the rent from June, 1997 up to June, 1998 which outstanding rent accumulated to Rs,4,017, as such the appellant committed wilful and deliberate default in payment of rent and was liable to be ejected from the disputed premises. The ejectment application was filed against Muhammad Iqbal Kharal, the husband of present appellant, as the respondent had no knowledge of his death but later on appellant, Shamim Bano, moved an application for impleading her and other legal heirs of deceased as opponent in ejectment application. She stated in her application that Muhammad Iqbal Kharal has expired on 24-5-1998.
The respondent thereafter came to know about the death of appellant/opponent. The application was allowed and his legal heirs were impleaded as opponents. The appellant and other legal heirs of Muhammad Iqbal Kharal filed their written statement. The respondent filed affidavit in evidence on 24-11-1998. The appellant and his counsel used to remain absent frequently and the case was being adjourned from time to time due to their absence. Several times the side was closed and subsequently opened on the basis of no objection given by the respondent. The result was that appellant and his counsel failed to cross-examine the respondent despite the fact several opportunities were given to them. Thereafter, case was adjourned to 5-7-1999 for filing of affidavit- in-evidence of the appellant and subsequently on 13-7-1999 but they failed to file affidavit-in- evidence and as a result of which side of opponent/appellant was closed on 13-7-1999. The learned Rent Controller on the basis of evidence adduced by respondent came to the conclusion that the appellant had committed default in payment of rent and they neither cross-examined the respondent nor they filed their affidavit-inevidence. The impugned order was passed on 3-9-1999 and the appeal was presented on 1-3-2000 i,e, after the lapse of about six months. Even the copy of the order was applied for the first time on 25-2-2000. As such the appeal was barred by the period stated above.
4. It is contended by Mr. Rao M. Shakir Naqshbandi, learned counsel for the appellant that the impugned order is null and void, and therefore, time would not run against the said order. It is argued that the ejectment application was filed against dead person, therefore, the same was not maintainable in law. It is pleaded that the learned Rent Controller had no jurisdiction in the matter and the order so passed has no value in the eyes of law. The reference is made to Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others (PLD 1970 Lahore page 6), Syed Nazir Hassan v. Settlement Commissioner, Lyallpur and another (PLD 1974 Lahore page 434), Jamal Shah v. Azad Government of State of Jammu and Kashmir through Chief Secretary and 7 others (1991 MLD 1243), Muhammad Gul Kakar v. Province of Baluchistan (1986 PLC (C.S.) page 560) and Municipal Corporation of Karachi v. Baradio Jumoo Mughal (AIR (33) 1946 Sindh 20).
5. Mr. Riazuddin, Advocate for the respondent, has stated that the respondent had no knowledge about the death of Muhammad Iqbal Kharal as the rent in M.R.A. No, 1505 of 1996 was being deposited in his name. The copy of ledger No,400 of 1996 is brought on record as Annexure "A" to the written statement. It is stated that as soon as the appellant moved an application, they were impleaded as party. It is argued that the pleas raised by learned counsel for the appellant have neither been taken in the written statement nor it was their case before the learned Rent Controller.
It is contended that ejectment application was filed on 9-7-1998 and the appellant and other legal heirs were impleaded as party on 1-9-1998. They engaged counsel and filed their written statement but subsequently failed to cross-examine the respondent and failed to file their own affidavit-in- evidence. It is contended that impugned order was passed on 3-9-1999 and the appeal was presented on 1-3-2000. The appeal is barred by time and the Limitation Act would not be applicable in rent matters. The reference is made to cases of Abdul Ghaffar and others v. Mumtaz (PLD 1982 SC 88) and Syed Muhammad v. Mazhar Ali Khan (PLD 1981 Karachi 76).
6. The perusal of record shows that rent was being deposited by Muhammad Iqbal Kharal, and therefore, the respondent/applicant had no knowledge about the death of the deceased Muhammad Iqbal Kharal. Ultimately, after filing of the ejectment application, appellant and her sons and daughters were impleaded as party. They engaged their counsel and filed their written statement but subsequently they failed to pursue their matter before the learned Rent Controller.
Neither they cross-examined the applicant/respondent nor filed their affidavit-in-evidence. The impugned order was passed on 3-9-1999 but they failed to apply for certified copy till 25-2-2000.
The appellant and her sons and daughters were in knowledge of the proceedings as they were party in rent case and were contesting the matter, therefore, at this stage they cannot plead that the ejectment application was not maintainable as the same was filed against dead person. On their request they were joined as party, they filed their written statement and did not plead before the learned Rent Controller/trial Court that the ejectment application was not maintainable. The application is filed for condonation of delay by the appellant with her affidavit in support of the same, wherein she has stated that she has engaged three Advocates but they did not appear on the relevant dates and failed to apprise her about the progress of the case. This First Rent Appeal is badly time-barred for which no sufficient cause has been shown and the appellant has levelled certain allegations against her own counsel but on some queries of the Court, the learned counsel for the appellant stated that no such complaint has been made against the Advocates to the Bar Council. Period of thirty days for filing an appeal is provided under section 21 of the Sindh Rented Premises Ordinance, 1979 which is a special law and as such section 5 of the Limitation Act would not be applicable for condonation of the delay. Even otherwise, no sufficient cause has been shown to condone such a long period of six months, which has created a substantial right to other side.
The reference can be made to the cases of Abdul Ghaffar and others v. Mumtaz (PLD 1982 SC 88) and Syed Muhammad v. Mazhar Ali Khan (PLD 1981 Karachi 76).
7. The case law referred to by the learned counsel for appellant has no relevance and bearing to the facts and circumstances of the case in hand. The case law referred to by the appellant pertains to the orders which are without jurisdiction and nullity but here in the instant case, the Court which passed ejectment order was competent to pass such an order and the same is perfectly legal and valid. The appellants were heard and afforded proper opportunity to plead their case.
8. This F.R.A. No,219 of 2000 is badly time-barred and the same was dismissed in limine by a short order dated 18-4-2000. Here are the reasons for the same. The appellant to vacate the premises within 60 days from passing of this order.