1. ANWARUL HAQ, C. J.-This order will dispose of Civil Petition for Special Leave to Appeal bearing No. 663 of 1978 and Criminal Miscellaneous Applica--tion No. 5 of 1979, praying for action by way of contempt against the respondents mentioned therein.
2. The main petition is by the tenant Akbar Khan against whom an order of ejectment was' obtained by the respondent Muhammad Razzaq from the Rent Controller, Lahore, on the 17th of October 1972, on the ground of default in the payment of rent. The petitioner's appeal was dismissed by the learned Additional District Judge, Lahore, on the 25th of April 1973. Thereupon he filed a second appeal in the High Court on. The 16th of May 1973, and along with the appeal he submitted an application for dispensing with the certified copy of the order of the Rent Controller as required by rule 2 of Order XLII of the Civil Procedure. Code. However, this prayer was not accepted by a learned Judge of the High Court who observed in his order of the 18th of May 1973 that "the filing of certified copy of the order of the Rent Controller cannot be dispensed with. The appellant will file the same at his own risk".
3. It appears that the petitioner had applied for a certified copy of the Rent Controller's order on the 14th of May 1973, but his application was returned to him by the District Court on the 2nd of June 1973, with the remark that the record had already been sent to the High Court. Thereafter he applied for the certified copy in question to the High Court on the 20th of October 1973, and then filed it for the purposes of this appeal on the 6th of November 1973. On the 28th of November 1978, he applied for condonation of delay under section 5 of the Limitation Act. In the meantime the respondent landlord also made an application in the High Court praying that the appeal be dismissed as barred by time, since the certified copy of the judgment of the Rent Controller had not been filed in time by the petitioner despite the order of the High Court dated the 18th of May 1973.
4. By an order made on the 29th of November 1978, a learned Judge of Lahore High Court has refused to condone delay under section 5 of the Limitation Act, in the matter of the filing of the certified copy of the Rent Controller's order, and has consequently dismissed the petitioner's second appeal, mainly on the ground that the petitioner had failed to explain the delay which had occurred on his part from the 2nd of June 1973, in the 20th of October 1973 in applying for the certified copy after he had been informed that the record had been sent to the High Court.
5. Leave to app; al is sought on the following grounds;
(a) That the order made by the High Court on the 18th of May 1973, refusing to dispense with the certified copy of the Rent Controller's order, was neither legally correct, nor justified on merits, and, accordingly, the petitioner's second appeal could not have been dismissed as time barred for want of the copy in question; and,
(b) That as the time required for obtaining a certified copy of the Rent Controllers order could not have been deducted under section 12 of the Limitation Act, it is clear that failure to file the certified copy in question did not have any effect on the competency of the second appeal filed by the petitioner, which had been presented within time in the High Court on the 16th of May 1973, along with a certified copy of the judgment and decree of the learned Additional District Judge acting as the first appellate Court; and, therefore, the appeal could not be treated as barred by time simply on account of this omission.
6. After hearing Mr. Zamir Zaidi, learned counsel for the petitioner, at some length, we have formed the view that there is no merit in either of these submissions.
7. According to the explanation to section 15(4) of the West Pakistan Rent Restriction Ordinance, 1959, a second appeal under the Ordinance is governed by the provisions of section 100 of the Civil Procedure Code read with the provisions of Part VI, and of the First Schedule to the Code. Now rule 2 of Order XLII of the. Code. As added by the Lahore High Court in 1926 requires, "in addition to the copies specified in Order XLI, rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the appellate Court dispenses therewith." In the present case an application in this behalf was made by the petitioner, but the same was rejected by the High Court by its order dated the 18th of May 1973. Thereafter the petitioner did file the copy in question, but it was filed after considerable delay, and it was for this reason that an application was later submitted under section 5 of the Limitation Act for condonation of the delay involved. In these circumstances it is rather late in the day for the petitioner to challenge the correctness and legality of the order of the High Court dated the 18th of May 1973. He not only accepted the order, but tried to comply with it, although at a belated stage.
8. Even otherwise, we have not been able to appreciate as to how the order was neither legally correct nor justified on the facts. The relevant rule clearly makes it obligatory that a copy of the trial Court's order should be filed with the second appeal, but the High Court has the: discretion to dispense with the same. If the discretion was not exercised in favour of the petitioner at the appropriate time, it does not thereby, invalidate the order. Mr. Zamir Zaidi referred us to Khair Muhammad Nizamant v. Abdul Qaddus (PLD 1965 Kar. 367) in which it was observed that the omission to file a certified copy of the trial Court's judgment can be condoned by the Court, and in the circumstances of the case the learned Judge was inclined to condone the same. We do net see how this case helps the petitioner, as it was on a consideration of the circumstances of that case that the learned Judge decided to condone the omission and to dispense with the filing of the copy in question; but in the present case such dispensation was not granted, and the order remained unchallenged for more than five years.
9. Again in Noor Muhammad v. Ch. Ghulam Muhammad and others (PLD, 1978 Lab. 819), it was observed by a learned Judge of the Lahore High Court that the power to dispense with the production of certified copies should be liberally exercised. This observation again is of no assistance to the petitioner, as the petitioner had not only accepted the order of the High Court dated the 18th of May 1973, but had even tried to comply with it. It is, accordingly, too late now to rely on this precedent for contending that dispensation should have been granted in 1973. As a result, we are of the view that there is no question of interfering with the order made by the High Court on the 18th of May 1973, refusing to dispense with the filing of the certified copy of the order of the Rent Controller.
10. The second contention advanced by Mr. Zamir Zaidi, namely, that as the time requisite for obtaining a certified copy of the Rent Controller's order could not be deducted under section 12 of the Limitation Act, therefore, any omission in this behalf would have no effect on the competency of the appeal, nor, on the question of its limitation, is entirely misconceived. The question of the competency of the appeal is independent of the question of limitation applicable in the matter of its presentation or institution. We have already seen that in terms of the explanation to section 15(4) of the West Pakistan Rent Restriction Ordinance, 1959, a second appeal against the order of Rent Controller is to be governed by section 100 of the Civil Procedure Code read with Part VI of the same Code and the First Schedule thereto. Rule 2 of Order XLII of the Code a clearly lays down that a certified copy of the Rent Controller's order must be filed along with the second appeal. This requirement has been interpreted by judicial authorities to be a mandatory requirement, and failure to comply with it renders the appeal invalid or incompetent.
11. We may in this connection refer to Ghulam Hussain and 3 others v. Bahadar and others (PLD 1954 Lab. 361), in which it was held, following Devala v. Hiru (67 1 C 670), Maula Ram Mal v. Siri Ram (I L R 2 Lab. 227), and Naul and others v. Mula and others (AIR 1926 Lah. 626), "that a memorandum of second appeal to the High Court must be accompanied by a copy of the judgment of the Court of first instance, and if the latter is not presented till after the period of limitation has expired the appeal should ordinarily be rejected as barred by limitation", as such a memorandum is not a valid presentation. In the same case the question of computing the period of limitation under section 12 was also discussed, and following the authorities mentioned therein it was reiterated that "under the law the appellant is not entitled as of right to deduct the period spent in. Obtaining a copy of the first Court's judgment, but if the period had expired, High Court may allow the time spent in obtaining that copy if he had filed the copy on the day he obtained it or very soon afterwards". In other words, both the points now raised by Mr. Zamir Zaidi arose in this case, and the answers returned were against the petitioner.
12. More recently the same questions fell to be decided by two different learned Judges of the Lahore High Court and views similar to those taken by the same High Court in 1954 were expressed. In Kala v. Allah Dad (PLD 1977 Lab. 376), it was held by Sardar Muhammad Iqbal, Chief Justice, that filing of certified copy of the trial Court's judgment along with the memorandum of second appeal in the High Court under Order XLII, rule 2 of the Civil Procedure Code was mandatory, and in the absence of the same, unless its filing is dispensed with, the filing of the appeal would be defective and incompetent. However, the time requisite in obtaining a certified copy of the judgment and decree of the Court of the first instance could legitimately be allowed under section 5 of the Limitation Act.
13. Again in Muhammad Hanif v. Faqir Muhammad (PLD 1977 Lab. 1214), Aftab Hussain, J., took the same view as to the mandatory requirement contained in rule 2 Order XLII of the Code, and observed that if these, provisions are not complied with the appeal could not by treated to be properly constituted; and that, in any case, after the expiry of the period of limitation for an appeal, an appeal would be liable to be dismissed as barred by time.
14. The three judgments of the Lahore High Court, mentioned above, are in conformity with the view taken in earlier cases on the same subject, and nothing was said at the Bar by Mr. Zamir Zaidi to persuade us to the contrary. As a result, we are in respectful agreement with the opinion expressed in these' cases that the filing of a certified copy .Of he judgment and decree of the Court of the first instance is a mandatory requirement, and if they are not filed along with the memorandum of second appeal in the High Court, then the appeal cannot be said to be properly constituted, unless the requirement has been dispensed with by the High Court in terms of the relevant rule itself; and if the certified copy is filed after the expiry of the period of limitation, then the appeal is to be treated as time barred, unless the delay is condoned under section 5 of the Limitation Act in the peculiar circumstances of the case concerned.
15. In the instant case, we have already noticed that after the application of the petitioner for obtaining the certified copy of the Rent Controller's, order had been returned to him by the High Court on the 2nd June 1973, he took more than four months until the 20th of October 1973, o in applying to the High Court for the same. In the application submitted by him for condonation of delay five years later, no explanation was given for this delay. As it is well settled that in such cases each day's delay has to be explained, the learned Judge in the High Court was right in refusing to condone delay, and dismissing the petitioner's appeal as barred by time.
16. For the foregoing reasons the main petition fails and is hereby dismissed.
17. Coming now to the miscellaneous application made by the petitioner for action by way of contempt, the allegations are that the petitioner had obtained an order from this Court on the 8th of January 1979, directing the maintenance of status quo, but in spite of that order he was forcibly dispossessed from the premises in dispute by the landlord acting with the aid of the bailiff of the civil Court concerned. It is stated that the interim order had been obtained at 1-15 p.m. And was shown to the respondents at 4-00 p.m. At the spot, but they refused to respect the same.
18. On behalf of the respondents, the position taken up is that at the time they ejected the petitioner, they were not informed by him or by his relations, who were present at the spot, that the petitioner had obtained any stay order from the Supreme Court. Their position is that they had carried out the ejectment of the petitioner at about 12.00 noon. The respondents have further stated that they could not even think of disobeying the order of this Court. In view of the fact that the assertions made by the contending parties involve a factual inquiry, and it is possible that the ejectment may, indeed, have been effected before the interim order of this Court reached the spot on the same day, and the further fact that E we have also dismissed the petition for leave to appeal presented by the petitioner, we consider that this is not a fit cast for action by way of contempt. We would, accordingly, dismiss this miscellaneous application as well.