' QAZI MUHAMMAD FAROOQ, J.---This appeal, by leave to the Court, is meant to impugn the judgment dated 31-3-1999 of a learned Single Judge of the High Court of Sindh Karachi whereby on 'acceptance of respondents first rent appeal, the order dated 4-9-1998 of the learned Rent Controller (Central) Karachi, dismissing the respondent's application under sections 19/22 of the Sindh Rented Premises Ordinance, 1979, seeking withdrawal of writ of possession and stay of execution application till the disposal of the objection petition filed in reply thereof was set aside and the case was remanded with the following observations:- ' "Therefore, while accepting this appeal and setting aside the impugned order, I remand the case to the IIIrd Rent Controller, Karachi Central to determine the question of acknowledgment as well as objections of the appellant and to expeditiously dispose of the execution application preferably within three months after giving the parties opportunity to lead evidence if they so choose."
2. Briefly, the facts culminating in this appeal are these. The appellant/bank being the landlord of the tenement involved in this case had filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, for eviction of the respondent on twin grounds of personal need and default. The application was allowed by the learned Rent Controller Karachi on 30-4-1990 and the respondent was directed to vacate the premises within sixty days. The order attained finality for want of an appeal. An execution application under section 22 of the Ordinance was filed by the appellant on 19-2-1998. Notice of the application was issued to the respondent who appeared before the Court alongwith his counsel but did not file any objection petition in spite of an adjournment granted for the purpose. A writ of possession was accordingly issued on 5-3-1998. However, on the same day an objection petition alongwith an application seeking withdrawal of the writ of possession and stay of execution application pending the decision of the objection petition was filed by the respondent. The application was dismissed on 4- 9-1998 but the appeal preferred by the respondent against the said order was accepted by the High Court and the case was remanded as stated above.
3. Leave was granted to consider whether in absence of specific application of Limitation Act, the execution application under section 22 of the Ordinance will be governed under Article 181 of the Limitation Act or otherwise.
4. Raja Muhammad Akram, learned counsel for the appellant, contended at the outset that an execution application under section 22 of the Ordinance cannot be governed by Article 181 of the Limitation Act as no period for filing of an execution application has been provided by the Ordinance. He further contended that the impugned judgment was against the scheme and spirit of the Ordinance. Another contention raised by him was to the effect that the impugned judgment was essentially based on a judgment of the Sindh High Court reported as Mehmood Elahi Farooqui v. Messrs United Bank Limited PLD 1998 Karachi 133 but while placing reliance on the observations made therein with regard to Article 181 of the, Limitation Act the High Court ignored this fact that the authorities i.e, Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 and Hassan Khan Durrani v.
Mehboob Khan 1987 CLC 2185 on which the same was based pertained to a civil suit and not an execution application under the Ordinance. It was lastly argued that the order of eviction of the respondent was executed and possession of tenanted premises was delivered to the appellant much before filing of the appeal, therefore, the appeal ought to have been dismissed straightaway.
5. On the other hand, Ch. Muhammad Ikram, learned counsel for the respondent, supported the impugned judgment by contending that the provisions of Article 181 of the Limitation Act have not been expressly excluded by the Ordinance and the delay in filing the execution application was too inordinate and unreasonable to be ignored.
6. Before proceeding further it is necessary to reproduce hereunder section 22 of the Ordinance which was substituted by Sindh Rented Premises (Amendment) Act, 1986. It is worded thus:-- ' "Final orders passed under this Ordinance shall be executed by the Controller and all questions arising between parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit.
Explanation.---In the execution proceedings relating to the order of ejectment, no payment, compromise or agreement shall be valid unless such payment, compromise or agreement is made before or with the permission of the authority passing the order."
7. It is common ground that no period of limitation has been prescribed for filing of an execution application under section 22 of the Ordinance. However, it has been held in the impugned judgment that an execution application filed beyond a period of three years provided by Article 181 of the Limitation Act would be liable to be dismissed as time-barred. The view is based on Mehmood Elahi Farooqui v. Messrs United Bank Limited PLD 1998 Karachi 133; the principle of laches; practice of the High Courts whereby a revision petition under section 115, C.P.C. Filed beyond ninety days or three years was not entertained before promulgation of Act III of 1992 when no period was prescribed for filing of such an application and the following observations:-- ' "All this discussion indicates that the Courts have applied period of limitation as provided in the Limitation Act for regulating its proceedings even where the legislators have not prescribed any period. It is being done in order to discipline the litigants and to disentitle a petitioner who remains inactive for a longer period and who is found guilty of laches. In such circumstances, it cannot be said that a successful landlord after obtaining an order of eviction against his tenant can file execution application under section 22 of the Ordinance, 1979 at any time according to his sweet- will."
8. The Ordinance is a local and special law and in view of its scheme and purpose the intention of Legislature behind section 22 appears to be that final orders under the Ordinance should be executed by the Rent Controller in a manner which is simple and free from limitation-related complications. For this very reason perhaps it has not been provided therein that an order of eviction passed by the Rent Controller shall be executed as a decree as has been provided in Punjab/N.-W.F.P./Balochistan Rent Restriction Ordinance, 1959 and the Cantonment Rent Restriction Act, 1963. The High Court has not only overlooked the intention of Legislature behind section 22 of the Ordinance but by making Article 181 of the Limitation Act its integral part has also assumed the function of legislation and removed a defect or supplied an omission which can be done only by the Legislature. It would have been more appropriate if the omission or the defect had only been pointed out and the corrective action left to the Legislature because it is not the function of the Courts to plug the gaps or remove the defects in an enactment. The significance of intention of Legislature underlying the Ordinance is amply highlighted in Abdul Ghaffar and others v. Mst.
Mumtaz PLD 1982 SC 88 wherein it was held that condonation of delay in filing an appeal under section 21 of the Ordinance cannot be sought on the strength of the provisions of section 5 of the Limitation Act and the argument that the principles underlying section 5 of the Limitation Act should have been applied by the High Court was repelled with the observation, inter alia, that the intention underlying the Sindh Rented Premises Ordinance, 1979 is too clear to permit any serious discussion on the argument. An execution application under section 22 of the Ordinance is certainly not governed by Article 181 of the Limitation Act.
9. We do not feel persuaded to agree with the reasons given by the High Court for arriving at the conclusion that an execution application under section 22 of the Ordinance would be hit by the bar of limitation if filed after three years of the final order passed by the Rent Controller. No doubt Article 181 of the Limitation Act finds mention in the case of Mehmood Elahi Farooqui (supra) but the question of its application to an execution application under section 22 of the Ordinance was not determined independently aid the view on which implicit reliance has been placed by the High Court is based on the observations made in the cases of Mehboob Khan PLD 1990 SC 778 and Hassan Khan Durrani 1987 CLC 2185. Both the authorities relied upon have no nexus whatsoever with the Ordinance and it is nowhere mentioned therein that an execution application under section 22 of the Ordinance is governed by Article 181 of the Limitation Act. Those cases had arisen from an application for execution of a consent decree passed in a suit for specific performance of a contract in respect of immovable property and the observations made therein pertain to the effect of omission of Article 182 of the Limitation Act by the Law Reforms Ordinance, 1972. As a matter of fact in the case of Mehmood Elahi Farooqui (supra) the question of limitation was not discussed in detail being ancillary and devoid of substance. The principle of lathes is pressed into service in Constitutional petitions and not in rent appeals. It is true that the execution application was filed after considerable delay but in the absence of any time frame in regard to filing of an execution application delay is immaterial particularly when it is not by itself sufficient to establish waiver on the part of the landlord. Besides, it appears from the record that instead of complying with the order of the Rent Controller to vacate the premises within sixty days the respondent had left the country and delay in filing the execution application had occurred mainly on account of his machination. As regards the erstwhile practice of the High Court in respect of entertainment of belatedly filed revision petitions it will be enough to say that it was a hallmark of general law and not of any local and special law.
10. The matter, however, does not end here because the grounds of the rent appeal filed by the respondent make it manifest that the possession of the demised premises was delivered to the landlord before filing of the appeal by the respondent in the High Court. Relevant portion of the grounds of appeal may be reproduced hereunder advantageously. It reads as follows:-- ' "Appellant's application under section 19 of Sindh Rented Premises Ordinance was dismissed and writ of possession was ordered to be issued. Which writ was executed without any notice on 18-9- 1998 by breaking open locks in the absence of appellant."
' The possession of the demised premises had already been delivered to the appellant, therefore, there was no live issue to be adjudicated upon and the appeal was liable to be dismissed on that score alone.
' For the reasons stated above, the appeal is allowed, the impugned judgment is set aside and the objection petition is dismissed. Parties to bear their own costs.