ORDER SHEET

 IN THE HIGH COURT OF SINDH AT KARACHI

                   C.P. No.S-406 of 2011                 _____________________________________________________

Date                      Order With Signature Of Judge

__________________________________________________________

Hg/ priority case

1.For hg of CMA No. 1741/11

2.For hg of main case

 

24.01.2017.

          Mr. Malik Muhammad Riaz, advocate for petitioner.

          Nemo for the respondent No. 2.

 

ZAFAR AHMED RAJPUT, J:-      This Constitutional Petition  is directed against the order dated 09.02.2011, whereby the learned 6th Additional District Judge, Karachi-South, while dismissing the application under section 5 of the Limitation Act, 1908 (hereinafter referred to as Act of 1908) also dismissed F.R.A. No. 17 of 2011 holding the same as time barred.

 

2.      Brief facts of the are that the respondent No. 2, being landlord, filed an application under section 8 of the Sindh Rented Premises Ordinance, 1979 being Rent Case No. 1209 of 2003 for fixation of fair rent in respect of the Office bearing No. 28, situated on 4th Floor, Writers Chambers, MumtazHussain Road, Off I.I. Chundrigar Road, Karachi, admeasuring 750 sq. Feet against the petitioner/ opponent/ tenant, which was allowed by the learned VIth Rent Controller, Karachi-South, vide order dated 14.12.2010 with direction to petitioner to pay the rent at the rate of Rs.8/- per sq. feet per month to the respondent No. 2 for the rented premises from the date of filing of the rent application viz. 14.10.2003 with the increase of 25% after every three years up to the date of order and onwards. The petitioner was also directed to complete the deficiency in rate of the rent deposited by him till the date of the order within six months. Against the said order, the petitioner/ opponent preferred First Rent Appeal No. 17 of 2011 on 22.10.2011and admitting the fact that the said FRA was time barred. The petitioner also filed an application under section 5 of the Act of 1908, which was heard and dismissed by the learned 6th Additional District Judge, Karachi-South and in consequence thereof the FRA was also dismissed, vide order dated 09.02.2011. It is against this order that the instant Constitution Petition has been preferred by the petitioner/ opponent.

 

3.      The learned counsel for the petitioner has mainly contended that the Appellate Court seriously erred in passing impugned order only on technical ground of limitation without going through the merits of the case and without considering the application for condonation of seven days delay on personal ground of the Advocate, whereas, under the principle of natural justice, the party ought not be suffered due to the fault of the Advocate; that when a case is based on merits the question of limitation shall have no significance.

 

4.      Heard the learned counsel for the petitioner and perused the material available on record.

 

5.      It is an admitted position that the impugned order was passed on 14.12.2010 and the copy of the same was applied by the petitioner/ opponent after nine days on 23.12.2010, which was delivered to the petitioner/ opponent on 24.12.2010 and the appeal was presented by the petitioner /opponent on 22.01.2010 after the expiry of 37 days from the date of impugned order. Hence, after excluding the time requisited for obtaining certified copy of the impugned order, the appeal was filed by the petitioner with delay of seven days from the period prescribed in section 21 of the Sindh Rented Premises Ordinance, 1979.

 

6.      It may be observed that Section 5 of the Act of 1908 is not applicable to appeal filed under Sindh Rented Premises Ordinance, 1979, for the reason that the period of limitation provided for appeal under the Ordinance is absolutely different from that provided in the First Schedule of Limitation Act, 1908 and in absence of application of section 29(2) of the Act, 1908, section 5 of the Limitation Act is not applicable. Hence, the application filed by the petitioner for condonation of delay under section 5 of the Act of 1908 was itself not maintainable in law.

 

7.      Even otherwise, it reveals from the record that the advocate for the petitioner/ opponent had filed his personal affidavit to the application under section 5 of the Act of 1908 seeking condonation of delay for filing F.R.A. on the ground that he was out of city due to his personal work at his native place. However, neither the date of leaving Karachi nor his return from the alleged native place to Karachi has been mentioned in the affidavit. It is well settled principle of law that the party seeking condonation of delay is bound to explain delay of each day with cogent reasons and in absence of such explanation Court would not condone the delay as a valuable right is created in favour of opposite party. Similarly, it is the obligation of the aggrieved person to pursue his remedy with diligence and the negligency of the counsel is the negligency of the party.

 

8.      In view of the above facts and reasons, I do not find any illegality or irregularity in the impugned order, passed by the learned appellate Court, requiring any interference by this Court under its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. Hence, this Constitution Petition is dismissed, being devoid of merit, along with listed application.

 

                                                                   JUDGE