Order Sheet

IN  THE  HIGH  COURT  OF  SINDH  AT  KARACHI

                       Constitutional Petition No. S – 482 of 2013      

Date	Order with signature of Judge

Petitioner                   :  Swami Narayan Temple Trust, through

                                       Mr. Neel Keshav Advocate.

Defendants 1 & 2     :  Syed Muhammad Naeem and Shahid Bashir,

                                       called absent.

Date of hearing        :  26.09.2016.

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O R D E R

NADEEM AKHTAR, J. – Through this Constitutional Petition, the petitioner / landlord has impugned the judgment delivered on 30.03.2013 by the learned V^th Additional District Judge Karachi South in FRA No.160/2012, whereby the said appeal filed by respondent No.2 / sub-lettee was allowed and the order passed on 11.01.2012 by the learned Rent Controller allowing the petitioner’s eviction application, was set aside.

2.         The relevant facts of the case are that the petitioner filed Rent Case No.264/2007 before the VII^th Rent Controller Karachi South against respondents 1 and 2 on the grounds of default in payment of rent and sub-letting of the demised premises by respondent No.1 / tenant to respondent No.2. Vide order dated 11.01.2012, the application filed by the petitioner was allowed and respondents 1 and 2 were directed to vacate the demised premises within sixty (60) days from the date of the said order. Respondent No.1 / tenant did not challenge the above order, however, an appeal bearing FRA No.160/2012 was filed by respondent No.2 / sub-lettee. As the appeal was barred by time, respondent No.2 filed an application under Section 5 of the Limitation Act, 1908, for condoning the delay in filing the appeal. Through the impugned judgment, the appeal filed by respondent No.2 was allowed and the order of eviction passed by the learned Rent Controller was set aside.

3.         Mr. Neel Keshav, learned counsel for the petitioner, submitted that the appeal filed by respondent No.2 was hopelessly barred by time. He further submitted that the said appeal was allowed without condoning the delay sought by respondent No.2 and without even deciding the application filed in this behalf. It was urged that in view of the above, the impugned judgment on the face of it is not only illegal, but is also a nullity in law.

4.         Notice of this petition was issued through all modes and was finally published in newspaper on 09.03.2015, whereafter service upon respondents 1 and 2 was held good vide order dated 17.03.2015. Despite proper service, the said respondents have chosen to remain absent. I have heard the learned counsel for the petitioner and have also examined the material available on record with his assistance.

5.         Record shows that order for eviction of respondents 1 and 2 was passed by the learned Rent Controller on 11.01.2012 ; respondent No.2 applied for its certified copy on 03.05.2012, which was made ready and was delivered to him on the same day ; and, the appeal was filed by him on 14.05.2012. Thus, the application for obtaining the certified copy of the order was filed by respondent No.2 when the prescribed limitation for filing the appeal had already expired on 10.02.2012. The appeal, which was filed on 14.05.2012, was barred by more than three (03) months. It is to be noted that the appeal was filed by respondent No.2 after eleven (11) days of obtaining the certified copy from the learned Rent Controller. Record further reveals that an application was filed before the appellate Court by respondent No.2 for condoning the delay in filing the appeal.

6.         Perusal of the impugned judgment shows that the application for condoning the delay was not decided by the appellate Court, and as such the appeal was decided without first deciding the question of limitation. It is surprising to note that the said application is not even mentioned in the impugned judgment. It is well-settled that before entertaining or deciding a case, the Court is duty-bound to ensure that it has jurisdiction in respect of the case and the case is within time. In case of any doubt or objection, it is the duty of the Court to decide these vital and fundamental questions first. In the present case, the appeal filed by respondent No.2 was admittedly barred by time as he had filed an application for condoning the delay. Despite this position, the appellate Court failed in its duty and did not exercise the jurisdiction vested in it by law. The appellate Court committed a grave error in law by entertaining and deciding a time barred appeal, and further by granting relief therein.

7.         In the above circumstances, the impugned judgment cannot be allowed to remain in the field. Accordingly, this Constitutional Petition is allowed, and resultantly the impugned judgment is hereby set aside. There will be no order as to costs.

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J U D G E