1. ' The facts giving rise to this appeal are that on 12-8-2000 applicant/ respondent who is the owner/landlord of premises/Flat No,606, Marine Drive, Block No,2, Clifton, Karachi, filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance"), in the Court of Xth Rent Controller, Karachi, South, seeking ejectment of the respondent/tenant from the demised premises on the ground of default in payment of rent.
2. ' The case of the applicant/respondent as disclosed in the ejectment application is that by an agreement, dated 1-1-1999 the demised premises was let out to the tenant/appellant at the rate of Rs,8,500 per month. Rent in advance for a period of six months w .e. f. 1-1-1999 to 30-6-1999 amounting to Rs, 51,000 was paid by the tenant to the landlord besides Rs,8,500 as security deposit, at the time of agreement. However, after June, 1999 the tenant became defaulter and failed to pay monthly rent from July, 1999 onwards. It was under the said circumstances that the landlord filed application under section 15 of the Ordinance after serving the tenant/appellant with a legal notice, dated 24-7-2000 issued through an Advocate. It is pertinent to mention that the said notice remained un-responded.
3. ' Summons/notices were issued to the tenant/appellant through bailiff registered post as well as courier service but the tenant/appellant preferred to remain absent. Service was also made through publication in daily "JASARAT", Karachi, dated 12-9-2000 for 18-9-2000 and also by way of pasting but the tenant/appellant did not appear to contest the ejectment proceedings. Resultantly, on 18-9-2000 service was held good by the learned Rent Controller. On 13-10-2000, an application for adjournment was filed on behalf of tenant/appellant which was granted by the learned Rent Controller and the case was adjourned to 16-10-2000. Again on that date another adjournment was sought, which too was granted subject to payment of costs of Rs,200 and the case was adjourned to 26-10-2000. On that date again application for adjournment was filed which was declined by the learned Rent Controller and the tenant/appellant was debarred from filing the written statement. An application for setting aside the said order dated 26-10-2000, was rejected on 6-11-2000 by the learned Rent Controller. On 7-11-2000, the attorney, Mohsin Jameel of the landlord/respondent filed his affidavit-in-evidence in ex parte proof reiterating the facts as narrated in the ejectment application. Since the evidence adduced on behalf of the landlord remained unrebutted and unchallenged, hence ejectment order was passed on 22-11-2000 and the tenant/appellant was ordered to hand over vacant physical possession of the demised premises to the landlord within 60 days from the date of order.
4. ' Since the tenant/appellant failed to comply with the order of the learned Rent Controller, hence after expiry of the period allowed by the Rent Controller, Execution Application No,4 of 2001 was filed by the landlord. However, before the execution could be carried out, the appellant/tenant appeared in Court through her counsel and filed an application supported by an affidavit stating therein that the ejectment order was sought by the landlord/decree-holder through forgery and the tenant was unaware of pendency of the case having been kept in dark. Notice was ordered to the other side, objections were filed, questioning the maintainability of the ..Application as the ejectment order had become final and conclusive. The said application was dismissed on 12-3- 2001. It was held, inter alia, amongst other reasons that on 1-3-2001 the execution of the decree was kept in abeyance with the consent of the parties in view of undertaking given by the judgment- debtor that the vacant possession of the demised premises would be handed over to the decree- holder within three days. However, on 8-3-2001 the judgment debtor/tenant engaged another Advocate who filed his Vakalatnama alongwith statement in which it was stated that the judgment-debtor would hand over the keys of the demised premises up to Sunday, but instead of handing over the keys as per undertaking given in Court, the judgment-debtor/tenant filed an application under section 12(2), C.P.C. However, it appears that while rejecting the said application, the executing Court again granted further time of three days to the judgment-debtor, but instead of vacating the demised premises, the appellant/tenant has filed this appeal.
5. ' After admitting this appeal notice was issued to other side counter-affidav" and rejoinder have been filed by the parties in respect of their respective contentions.
6. ' I have heard the learned counsel for the parties and perused the R & P of the case.
7. ' Mr. Gul Zaman Khan, learned counsel for the appellant, has cited the following case-law in support of his contentions:
(1) 1987 CLC 218 (Board of Trustees of the Port of Karachi v. Punjab Industrial Development Board);
(2) 1987 CLC 516 (Mirza Farooq Beg v. Muhammad Kashif Kamal Siddiqui);
(3) 1985 CLC 25 (Abdul Sattar v. Ali Ahmed);
(4) PLD 2001 Kar. 60 (Muhammad Saddiq and others v. Mst. Ruqaya Khanum and others)
(5) 1982 CLC 856, 1314 (Mst. Mariam. Bal Adam Ali v. Mst. Salima Khatoon);
(6) PLD 1970 Lah. 6 (Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others) and
(7) 2001 M LD 226 (Sh. Abdul Karim Kapur v. Sh. Javed Iqbal and others).
8. ' On the other hand, learned counsel for the landlord/respondent has argued that the appellant/tenant is a wilful defaulter since July, 1999 and she has not paid any rent even the cheque issued for Rs,51,000 being the rent for the month of July, 1999 to December, 1999 has bounced. The appellant/tenant deliberately and intentionally did not participate in the proceedings before the Rent Controller and in fact the appellant appears to be interested to prolong the proceedings and wants to avail the opportunity of residing in the demised premises as long as possible without making payment of any rent. With the help of the Learned counsel for the parties 1 have examined the material available on record and the certified copy filed by the respondent. The learned counsel has also pointed out that efforts were taken by the learned Rent Controller to serve the tenant through various modes. Notices/summons were sent through bailiff, through registered post pasting as well as courier service. Receipts showing the dispatch and delivery of the notices through said modes are available on record. Publication in daily 'Jasarat' , Karachi was also made whereafter an Advocate appeared on behalf of the appellant and sought time to file written statement but no written statement was filed with the result that the learned Rent Controller had no option but to debar the appellant/tenant from filing the written statement.
9. ' The learned counsel for the respondent has further argued that the appeal is time-barred having been filed on 15-3-2001 whereas the ejectment order was passed on 22-11-2000. The learned counsel has further A argued that the service was made through all the modes. Even before filing of the suit legal notice dated 24-7-2000 was served upon the appellant.
10. ' In support of his contention that Limitation Act has not been made applicable to the rent appeals and an application under section 5 of the Limitation Act is misconceived the learned counsel has placed reliance on the case of Abdul Ghaffar v. Mst. Mumtaz, reported in PLD 1982 SC 88 and Messrs M.S. Engineering Co. v. Muhammad Mushtaq, reported in 1992 CLC 95.
11. 'I have given my due consideration to the arguments advanced by the learned counsel for the parties and with their help and assistance and I have examined the record of the case. Finally the position as emerges is that the appellant/tenant was duly served through various modes including substituted service by way of publication in newspaper, pasting of summons at the outer door of the demised premises, registered post as well as courier service. At a later stage she caused her appearance through Ms. Noorjehan, Advocate, but failed to file written statement despite time having been granted. It has been rightly argued by the learned counsel for the respondent that the appellant failed to show that any action was initiated by her against Ms. Noor Jehan, Advocate, by filing any complaint before the Bar Council if the said Advocate was not appointed by her Appointment of Advocate at the execution stage has not been denied by the appellant. The said Advocate filed his Vakalatnama and gave undertaking in Court seeking time to vacate the demised premises. No proper explanation has been given by the appellant in that respect. Instead of filing an application under section 12(2), C.P.C. An appeal should have been filed at a proper stage or application for setting aside ex parte order under the relevant procedure of law should have been tiled but record shows that no appeal was filed or such application was filed at that stage. Now at this stage the appellant cannot plead ignorance and it does not lie in her mouth to say that she was unaware of the ejectment proceeding. The appellant did not refute the contents of the legal notice dated 24-7-2000 specifically referring to default committed by her and non- encashment of cheque for Rs,51,000 which had bounced.
12. ' In view of the discussion made above I do not find any substance in this appeal, which is accordingly dismissed.