1. ' The appellant through this first rent appeal has assailed the order, dated 8-10-1997 passed by Additional Controller of Rents, Karachi Cantonment, in Rent Case No,49 of 1992 whereby the ejectment application filed by respondent was allowed and the appellant was ordered to vacate the shop in question within a period of 60 days of the order.
2. ' The brief facts of the case are that applicant/respondent Noor Ahmed owned Shop No,9, Mansfield Street, Saddar, Karachi. The opponent was tenant of said shop on monthly rent of Rs,600.
3. The appellant committed wilful default for a period of about two years. The amount of arrears outstanding against him was Rs,14,400. The appellant acknowledged to deposit the rent with Nazir of the Court but the default had already been committed.
4. ' The applicant was heart patient and he needed the shop in good faith for his personal bona fide need. He had a crippled polio affected son namely Mansoor Ahmed, aged about 18 years and he was to be accommodated in the shop alongwith his another young and married brother Zamir Ahmed, who had to run General-cum-Cold Drink Store.
5. ' The respondent in his written statement stated that the shop was let out to him in November, 1982 at monthly rent of Rs,300 and the tenancy agreement was reduced into writing on 3-3-1984 and the rent for the period of 11 months was paid in advance at the rate of 300 per month. Thereafter, the respondent did not issue any rent receipt. In the year 1988, the rent was enhanced from Rs,300 per month to Rs,600. The appellant again paid rent in advance for the whole year from January, 1988 to December, 1988 which continued till the year 1991. The appellant used to pay the rent but the receipts were not being issued. It is stated that the respondent refused to receive rent from January, 1992 as he wanted to enhance the rent. The appellant sent money order on 6-1-1992 of Rs,7,200 but the respondent refused to accept the same. Thereafter the appellant started depositing rent in Court. The respondent denied to have made any default in payment of rent. He denied that the landlord was heart patient and required the premises for his personal bona fide need. The appellant denied that the son of landlord was crippled by polio ailment.
6. ' The learned Rent Controller framed the following issues:--
(i) Whether the applicant/landlord requires the disputed shop in question in good faith for the bona fide need of the applicant and for the bona fide need of his crippled polio affected young son?
(ii) Whether the respondent/tenant has committed default in payment of rent regarding disputed shop in question?
7. (iii)Whether the rent agreement dated 3-3-1984 presented by the opponent/tenant is genuine and legally sustainable?
8. ' The respondent/applicant landlord examined himself. He produced his legal notice, reply thereto and 16 medical certificates issued by National Institute of Cardio Vascular Diseases and Dr. Ziauddin Hospital. His son namely Mansoor Ahmed who was suffering from polio ailment was examined by the landlord. He further examined P.W. Noor Ahmed. The opponent/appellant examined himself and produced the application for depositing the rent in Court, money order coupons and receipts. P.W. Noor Ahmed stated that rent agreement, dated 3-3-1984 produced by tenant was false and forged. The learned Rent Controller after evaluating the evidence of the parties came to the conclusion that the appellant was wilful defaulter and that the premises in question were required to appellant in good faith for his personal use. He allowed the ejectment application on 8-10-1997.
9. ' The respondent was issued pre-admission notice on this First Rent Appeal, who has filed his counter-affidavit wherein the preliminary objection has been raised, that the F.R.A. Is barred by time. Section 24 of the Rent Restriction Act provides 30 days' time to prefer an appeal. The ejectment order was passed on 8th October, 1997 whereas the application for certified copies was moved by the appellant on 30-10-1997. These stamps were supplied on 24-12-1997. The certified copy of impugned order was delivered on 26-12-1997. The appellant presented this appeal on 10-1- 1998.
10. ' It is contended by learned counsel for appellant that no notice was issued to him by the copying branch and therefore, time is to be computed from the date when such notice has been issued by the copying branch. It is submitted that the appellant was not required to pursue the matter in copying agency. It is contended that since the notice was not issued, therefore, his appeal was within time and the period consumed in obtaining copy is to be deducted as prescribed by sections 4 and 12 of Limitation Act. The reliance is placed upon the case of Dr. Obaidur Raza Khan v.
11. Mst. Saghera Bano and another 1994 CLC 1302, Haji Fakir Muhammad v. Abdul Raziak and another PLD 1992 Karachi 398.
12. ' Mr. Obaidur Rehman learned counsel for respondent has stated that the impugned Order was passed in open Court in presence of the parties on 8-10-1997. The respondent applied for certified copies of the judgment on 10-10-1997 and the copy was delivered to him on 13-10-1996 but the appellant applied for certified copy on 30-10-1997. He did not supply the stamps till 24-12-1997 and received the copy on 26-12-1997. He filed an appeal on 10-1-1998.
13. ' It is manifest on the record that the appeal is badly time-barred and no explanation has been furnished by the learned counsel for appellant. Sections 4 and 12 of Limitation Act are of no help to the appellant as he himself was at fault and therefore, time cannot be deducted. The order was passed on 8-10-1997. The appellant applied for copies on 30-10-1997 i,e, after the lapse of 22 days.
14. The cost was estimated on same day. The stamps were supplied by the respondent on 24-12-1997.
15. It was for the appellant to be vigilant and he failed to put his efforts and due diligence to avoid delay. The time between making application and the supplying of stamps cannot be termed to be the time (requisite for obtaining copy). The appellant failed to supply the stamps within time and obtain the copy. The appeal is filed after the lapse of about 66 days. There is no application for condoning this inordinate delay. The reference can be made to a case of Fateh Muhammad and others v. Malik Qadir Bux 1975 SCM R 157 wherein their lordships have held as under:-- "It is well-settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay unless such as was caused by circumstances over which he had no control and which he could not by due diligence be avoided, can form part of time 'requisite' for obtaining the copy. The time between the date of which the 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.
16. ' The question then is whether the delay be condoned under the provisions of section 5 of the Limitation Act, 1908. In this behalf it would be seen that the order of the High Court having been announced on 8th October 1973, petitioners had sixty days to file this petition, excluding the time requisite for obtaining copy of the order. They are presumed to know that delay of each day, after expiry of the prescribed period of limitation, unless satisfactorily explained, is fatal."
17. Section 5 of the Limitation Act is not applicable in Rent Restriction Laws as the time for filing an appeal is not prescribed by Limitation Act but it is prescribed in the Act itself. As such, section 5 of the Limitation Act, has no applicability in the matter. The reference can be made to a case of Abdul Ghaffar and others v. Mst: Mumtaz PLD 1982 SC 88. The appeal is barred by time which created substantive right in the other side and the same cannot be lightly brushed aside.
18. ' Consequently the F.R.A. No,37 of 1998 is dismissed in limine with no orders as to cost.
19. ' The appellant to hand over vacant possession of shop to respondents within 90 days after the passing of this order.