ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

 

F.R.A. No. 01 of 2017

 

 

Appellant:                      Abdul Qayyum Mughal, through

                                      Mr. Barkat Ali Metlo, Advocate.  

 

 

Respondents:                 Mrs. Tania Asad, Aftab Zia Malik and

No.1 to 3.                      Muhammad Iqbal, through Mr. Rehan Aziz

                                      Malik, Advocate.

 

Respondents:                 The Additional Controller Rents,

No. 4&5.                        Clifton Cantonment and IVth Senior

                                      Civil Judge, Karachi South.

                                     

Date of hearing:             30.01.2017

Date of order:                30.01.2017

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O R D E R.

 

Zafar Ahmed Rajput, J:-       Through instant F.R.A., the appellant / opponent / tenant has impugned the order dated 27.10.2016, passed by the learned Additional Controller of Rents, Clifton Cantonment, Karachi in Rent Case No. 41 of 2016, whereby the appellant has been directed to vacate the tenement i.e. Flat No. 1, situated on 1st Floor in building constructed on Plot bearing No.3-C, Rahat Commercial Lane No.1, Phase-VI, Defence Housing Authority, Karachi, and hand over its vacant peaceful possession to the respondent No.1 / applicant/ owner within 30 days, failing which the respondent No.1 can get the said order executed from the Court of law having jurisdiction.

 

2.       Briefly stated,  the facts of the case are that the respondent No.1 / applicant / owner the aforementioned rented premises filed a rent ejectment application under Section 17 of the Cantonment Rent Restriction Act, 1963 against the appellant / opponent / tenant in respect of the aforementioned rented premises on the ground of default in payment of arrears of rent amounting to Rs.15,000/- so also default in payment of monthly rent from the month of February, 2016 at the rate of Rs.21,000/- per month. After institution of the case, the Additional Controller of Rents, Clifton Cantonment, Karachi issued notice to the appellant / opponent through Court’s bailiff on 24.05.2016 and on 30.06.2016 Mr. Wali Muhammad Jat Advocate appeared and filed his Vakalatnama to represent the appellant. Thereafter, the appellant was given last and final chance for filing written statement on 15.08.2016 but he failed to do so. Hence, the side of the appellant was closed on 29.08.2016 and the case was proceeded exparte. The respondent No.1 was directed to file affidavit-in-exparte proof, which was filed by him on 05.09.2016 and it was thereafter the impugned order was passed.

 

3.       The instant appeal was filed by the appellant on 19.01.2017. Admitting the fact that the same is time barred by 51 days, the appellant also filed CMA No. 499 of 2017, under Section 5 of the Limitation Act, 1908 for condonation of said delay.

 

4.       The learned counsel for the appellant has mainly contended that the impugned order is illegal as the same has been passed by the learned Controller of Rents without giving any opportunity of hearing to appellant; that the appellant had engaged his counsel, namely, Wali Muhammad Jat to defend his interest but he failed to file any written statement in the case on behalf of the appellant, even he did not inform him about allowing of rent ejectment application against him, for that the appellant has moved an application against the said counsel to the Secretary Sindh Bar Council for taking action against him in accordance with law for committing professional misconduct; that under the circumstances the delay occurred in filing of instant F.R.A. was neither deliberate nor willful but due to the circumstances beyond the control of the appellant, which is liable to be condoned. In support of his contentions, the learned counsel has placed his reliance upon the decision in the case of Hassan Abbas vs. Ist Additional District and Sessions Judge and 2 others (2014 YLR 2042). He has further submitted that the respondent No.2 being Attorney of respondent No.1 was collecting the rent regularly in terms of rent agreement executed between the parties but all of sudden on 30.01.2016 he approached the appellant and asked him to vacate the rented premises within a period of 10 days on that the appellant filed Civil Suit bearing No. 181 of 2016 before the learned XIVth Civil Judge, Karachi South, which was disposed of by the learned Civil Court vide order dated 30.03.2016  on the statement of respondent No.2 that he would not dispossess the appellant other than due course of law from the rented premises. He added that after the disposal of said suit the respondent No.1 through his attorney, the respondent No.2, executed a sale agreement on 12.04.2016 with the appellant in respect of rented premises, whereby against the total sale consideration of Rs.40,00,000/- the appellant paid Rs.20,00,000/- in cash at the time of execution of said sale agreement while the balance amount was to be paid within a period of seven months from the date of signing of the agreement; as such, the appellant is occupying the subject premises not as its tenant but as its prospective owner and in this regard the appellant intends to file a suit for specific performance of contract.

 

5.       On the other hand, learned counsel for the respondents No. 2 & 3 has vehemently opposed the aforementioned CMA as well as this F.R.A. While referring Section 29(2) of Limitation Act, 1908, the learned counsel has maintained that since a period of 30 days for filing appeal has been provided in the Act of 1963 the Limitation Act 1908 is not applicable; hence the alleged delay in filing F.R.A. cannot be condoned. In support of his contentions, the learned counsel has placed his reliance upon the decision in the case of Salamatullah and 4 others vs. Settlement Commissioner, Jhang and 3 others (1988 SCMR 1863),  Akhtar Hussain Khan vs. Noor Ahmed (2002 MLD 39) and Messrs A.B.M. Engineering, Karachi vs. Mst. Zeenat Zubair Siddiqui and 2 others (1987 CLC 2318). He has further contended that mere engaging a counsel do not absolve party of his obligation to appear and to ensure proper conduct of the case therefore, the appellant was himself negligent in pursuing his case before the Controller of Rents and for that he cannot blame his counsel. In this regard, he has placed his reliance upon the decision in the case of  Chiragh Din and 4 others vs. Mst. Jannat Bibi and 6 others (PLD 1965 SC 399) and Abdur Rehman vs. Farooq  (1989 MLD 951). He has further contended that the appellant has managed a forged and manipulated sale agreement to protract the ejectment proceedings against him.

 

6.       I have considered the above submissions of both the parties as well as perused the record.

 

7.       It appears from perusal of case file that after filing of the Vakalatnama on 30.06.2016 by the counsel for the appellant, the appellant was given time for filing written statement; however, the same was not filed up to 15.08.2016; hence the side of the appellant for filing written statement was closed and thereafter the matter was proceeded exparte and finally the impugned order was passed on 27.10.2016. Even in the intervening period i.e. from the date of closing the side of the appellant for filing written statement to passing of the impugned order, no application was moved by the appellant for re-opening his side for filing written statement and apparently he was sleeping over his right and when the impugned order was passed, the instant F.R.A. has been maintained by him after delay of 51 days. It is a well settled principle of law that the provisions of Section 5 of the Limitation Act has not been extended to the appeal under the Act of 1963, which itself provide a period of 30 days for filing an appeal. Hence, there is no scope for the condonation of the delay. The case-law cited by the learned counsel for the appellant being on different footings has no applicability in this case.

 

8.       With regard to the contention of negligence of the counsel of the appellant, suffice it to say that it is the duty of the party to be conscious in respect of his interest and approach to Court without any delay and in case of failure, he must suffer and no one could be made responsible therefor. A person who having knowledge of limitation slips over matter without sufficient cause and allows remedy to run out of limitation period cannot afterwards seek indulgence of Court for condonation of delay. Similarly, the negligence of the counsel is the negligence of the party because the counsel acts on behalf of the party. In this regard it may further be noted that even after engaging a counsel it is the duty of the party in litigation to keep himself fully informed of proceedings and he is not relieved of his obligations to do so merely because he had engaged a counsel to appear on his behalf. Therefore, C.M.A. bearing No. 499 of 2017 being not maintainable is dismissed, accordingly.

 

9.       So far the merits of the case is concerned, it may be examined that even in the memo of appeal, the appellant has not denied alleged commission of default in payment of monthly rent but he has taken the defence that after 12.04.2016 he is the prospective owner of the rented premises. It is now well settled principle of law that once a person acknowledges himself to be a tenant of a landlord, the principle of estoppel as enunciated in Article 115 of Qanun-e-Shahadat Order, 1984 would come into play, debarring such tenant to deny the title of his landlord. The genuineness or otherwise of alleged sale agreement and its consequential effect would independently be determined by the Civil Court if a civil suit for specific performance of contract is filed by the appellant. Till the time the appellant/ tenant is able to establish his claim for “Specific Performance” on the basis of alleged sale agreement, the respondent No.1 / landlord would continue to enjoy the status of being owner or landlord of the premises and the relationship between the parties till such time would be regulated by the terms of tenancy and the appellant/ tenant cannot legitimately resist the maintainability of ejectment proceedings on the ground of sale agreement. The reliance in this regard is placed on the case of Mst. Seema Begum v. Muhammad Ishaq and others reported in PLD 2009 SC 45.

 

10.     Consequently, instant F.R.A. being time barred and devoid of any merit is dismissed, accordingly. The appellant is directed to vacate the tenement and handover its peaceful possession to the respondent No.1 within 30 days hereof.  

 

JUDGE

Athar Zai