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P L D 2004 Karachi 555

 

Before Rehmat Hussain Jafferi, J

 

Malik ABDUL KADIR—Petitioner

 

Versus

 

ATIQUE ARMED through Legal Heirs and another—Respondents

 

Constitutional Petition No.956 of 2002, decided on 19th March, 2004.

 

Qalander Bux Phulpoto for Petitioners.

 

A.M. Mubeen Khan for Respondent.

 

Date of hearing: 20th February, 2004.

 

 

JUDGMENT

 

The facts giving rise to the Constitutional petition are that in the year 1976 Atique Ahmed Predecessor-in-interest of the Respondents is to be filed an Ejectment Application under section 13 of the then West Pakistan Urban Rent Restriction Ordinance 1959 (hereinafter referred to as Ordinance, 1959) against the petitioner on the ground of default in payment of rent. During the pending adjudication of the ejectment application, West Pakistan Urban Rent Restriction Ordinance 1959 was repealed by Sindh Rent Premises Ordinance, 1979 (herein after referred to as Ordinance 1979). By virtue of section 27(3) of Ordinance 1979, the said Ejectment Application was proceeded under the Ordinance 1979. On 31-1-1991, the learned Rent Controller allowed the Ejectment Application and directed the petitioner to vacate the premises within 60 days. On 9-3-1991, the petitioner filed an appeal under section 21 of Ordinance 1979 before this Court. On 8-11-2000 the appeal was dismissed for non-prosecution. On 18-8-2001, the petitioner filed’ an application under Order XLI, rule 19 read with section 151, C.P.C for restoration of appeal. As the application was time-barred therefore, the petitioner also filed an application under section- 5 of the Limitation Act for condoning the delay in filing Restoration Application. During pending decision of these two applications, section 21 of Ordinance. 1979 was amended by which the appellate forum was changed from High Court to District Court. In .pursuance of the said amendment, this Court sent the case to the District Court for deciding the said applications vide order dated 4-9-2001. The matter was received by the District Court. The learned District Judge transferred the matter to IInd Additional District Judge for disposal according to law. The matter was heard by the learned 1lnd Additional District Judge, who dismissed both the applications by order dated 24-9-2002. The petitioner was dissatisfied with the said order, therefore, he has filed the present Constitutional Petition to challenge the said Order.

 

The learned Advocate for the Petitioner has stated that the time for filing Restoration Application is three years as provided under Article 181 of the Limitation Act but the Appellate Court applied’ Article 168 of the Limitation Act, which is not applicable in the rent proceedings. He has further stated that the Advocate for the Petitioner was paralysed, therefor, he could not attend the Court. Hence there was sufficient cause for non-attending the Court on the date of hearing, therefore, the impugned order is required to be set aside. He has relied upon the case of Yousif v. Fazal Kareem reported in 1983 CLC 2219 at page 2221, it has been observed as under:–

 

“I will now examine the contention whether Article 168 of the Act applied to an application for restoration of an appeal filed under the Ordinance which was dismissed for default. The Ordinance is admittedly as special as well as a local law within the meaning of section 29 of the Act. It is not disputed that under the Ordinance, the period of limitation prescribed for filing an appeal before this Court is different from the period prescribed, therefor, in the 1st Schedule to the Act. In these circumstance, in my humble view only those provisions of the Act which are mentioned in clause ‘(a) of subsection (2) of section 29 of the Act will be applicable and therefore, Article 168 of the Act which prescribes the period for filing of an application for restoration of appeal dismissed for non appearance will not be attracted. However, in absence of any specific Article in the Act being applicable to such applications, the same should be filed within a reasonable time which in my view should be equivalent to the period prescribed in the residuary Article 181 of the Act, as three years.”

 

On the other hand, the learned Advocate for the Respondents is to be, has stated that no time was fixed in the Ordinance, 1979 for moving the Restoration Application, therefore, the Limitation Act being general law applicable to all statutes will be applicable and Article 168 of Limitation Act is in respect of restoration of Application, provides 30 days period; that the Appeal was dismissed on 8-11-2000 but the Restoration Application was filed on 18-8-2001 after more than 8 months, therefore., the application was time-barred,’ which was required to be dismissed. He has further stated that for condonation of time, the petitioner was required to furnish sufficient cause but he failed to-do so as before the Appellate Court. Mr. Muhammad Aslam Bhutto, Advocate was representing the Petitioner but neither he nor the Petitioner appeared before the Appellate Court, therefore, the Appeal was rightly dismissed.

 

I have given due consideration to the arguments and have gone through the record of this case very carefully and law involved in the matter.

 

In the case of Yousif (supra) a Single Bench of this Court has observed that section 29 of the Limitation Act will be applicable in the rent proceedings as the time provided for filing of the Appeal before this Court and the Limitation Act is different; as such section 29 of Limitation Act will ‘be applicable therefore, section 5 of Limitation Act will not be applicable, to which I agree. The learned Judge further observed that as no time of limitation was mentioned for filing of the Restoration Application in the Ordinance, 1979, therefore, within a reasonable time, which may be equivalent to the period prescribed in the residuary Article 181 of Limitation Act as three years will be applicable.

 

With utmost respect to the Honourable Judge, I am unable to agree with the said proposition for the following reasons.

 

It will be advantageous to reproduce section 29 of the Limitation Act to understand the correct position. The said provisions reads as under;–

 

“29. Saving.–(1)… … … … … … … … … … … …

 

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law–

 

(a) the provision contained in section 4, sections 9 to 18 /and section 22 shall apply only to so far as, and to the extent to which, they are not expressly excluded by such special or local law; and .

 

(b) the remaining provisions of this Act shall not apply.”

 

A bare reading of the above provisions of law show that where any special or local law prescribes for any Suit, Appeal or Application, a, period of limitation different from the period prescribed thereof by the 1st Schedule, the provisions of section 3 of Limitation Act, shall apply, as if such period was prescribed, therefor, to that Schedule. It further provides that for the purpose of determining any period of limitation prescribed for any Suit, Appeal or Application by any special or local law, the provisions contained in section 4, sections 9 to 18 and 22 shall apply only in so for and to the extent to which they are not expressly excluded by such special or local law. Under section 29(2)(b), it is further provided that the remaining provisions of this Act, namely Limitation Act were not applied.

 

The Limitation Act has not defined “special” or “local law” but sections 41 and 42 of P.P.C. define special and local law. For advantageous sake they are as under:–

 

“41. Special Law.–A special law is a law applicable to a’ particular subject.

 

42. Local Law.–A `local law’ is law applicable only to a particular part of the territories comprised in Pakistan.”

 

Before we enter into discussion, it is pertinent to point out that the Limitation Act is general law, laid down the general rules of limitation applicable to all cases dealt with by the Act.

 

It will be noticed that Criminal Procedure Code is a general law’ Laving down procedure, generally for the trial of criminal case but it also contains some special provisions of law in the shape of section 417(4), Cr.P.C. But it may also contain some other provisions specifying a bar of time for particular class of cases, which are of special character. For example Anti-Terrorism Act, 1997, no doubt is a special law in respect of offence provided under P.P.C. and procedure provided under Criminal Procedure Code but is a general law regulating the rights of particular class of the offenders “aril cases regulating relationship of terrorists and offences of terrorism but it contains special provisions specifying bar of time for filing of Appeals such as section 25(3) of Anti-Terrorism Act, 1997. It also contains special provisions of procedure of trial of accused person in absentia specifying bar of time for setting aside the judgment before the trial Court. Such as section 19(12) of Anti- Terrorism Act, 1997. Thus the section 25(3) and section 19(3) of Anti- Terrorism Act would be special law within the meaning of section 29 of Limitation Act. In similar manner the Land Revenue Act may be a general law regulating relationship between the revenue-payer and revenue-receiver or rent payer or rent receiver. It is general law in the sense that it lays down the general rules governing such relationship but it may contain special provisions relating to bar of time in specific case different from the general law of limitation. Such law will be a special law with reference to the law generally governing the subject-matter of that kind of relationship. In the similar manner Ordinance, 1979 may be a special law in comparison to other laws on the subject but it is a general law regulating the relationship between the landlord and tenant. It is general law in the sense that it lays down the general rules governing such relationship; but it may contain special provisions’ relating to bar of time in a special cases different from the general law. Those laws will be special laws within the meaning of section 29 of the Limitation Act.

 

Thus special lay; is law applicable to a particular subject as defined in section 41 of P.P.C. and enacted for special cases which can also entertain special circumstances in conflict with general law laying down or applicable generally to all cases with which general law deal.

 

In the present case, under Article 156 of Limitation Act, the time for filing an Appeal before High Court is 90 days but under Ordinance. 1979 (before the amendment) the time for filing the Appeal before the High Court was 30 days. As such the said provision viz. section 21(1) of Ordinance, 1979 was a special law within the meaning of section 29 of the Limitation Act, therefore, section 5 of Limitation Act was not applicable to Appeals if filed after the period of limitation mentioned under the then section 21(1) of Ordinance, 1979. But it is pointed out now that the amendment has been made in the section 21 by which the appeal lies before the District Court. Under Article 152 of Limitation Act the period provided for filing Appeal before the District Court, is 30 days whereas time provided for filing Appeal before the District Court under section 21(1) of Ordinance, 1979 is also 30 days. As such both the periods are same. Section 29 would come into operation if different period of limitation is provided in the special law from the Limitation Act, therefore the section 5 of Limitation Act will be applicable to Appeals filed before the District Court if they are filed after the period of limitation for the simple reason that the Limitation Act is general law which is applicable to all cases dealt with by the Limitation Act in which section 29 of Limitation Act is hot applicable.

 

Honourable Supreme Court of our neighbouring country India in a case of Kaushalya Rani v. Gopal Singh AIR 1964 Supreme Court 260, has observed as under:–

 

“(7). It has been observed in some of the cases decided by the High Courts that the Code (Cr.P.C.) is not a special or a local law within the meaning of S.29(2) of the Limitation Act, that is to say, so far as the entire Code is concerned because it is a general law laying down procedure, generally, for the trial of criminal cases. But the specific question with which we ire here concerned is whether the provisions contained in S.417(4) of the Code is a special law. The whole Code is indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character. For example, a Land Revenue Code may be a general law regulating the relationship between the revenue-payer and the revenue-receiver or the rent-payer and the rent receiver. It is a general law in the sense that it lays down the general rule governing such relationship, but it may contain special provisions relating to bar of time, in specified cases different from the general law of limitation. Such a law will be a ‘special law’ with reference to the law generally governing the subject-matter of that kind of relationship. A `special law’, therefore, means a law enacted for special cases, in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by section 417(3) and (1) read together, it will be special law contained within the general law. As the Limitation Act has not defined `special law’, it is neither necessary nor expedient to attempt a definition. Thus, the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation.”

 

The question involved in the present matter is of Application for restoration of Appeal, which was dismissed in default. In the Ordinance, 1979, no period of limitation is fixed for filing such Application but such period has been mentioned in Limitation Act under Article 168, which provides a period of .30 days for “re-admission of an Appeal dismissed for want of prosecution”. It will be noticed that in section 29, three different words are mentioned viz. “Suit”, “Appeal” and “Application”.

 

These three words carry different meaning and connotation. Suits are different from appeals and vice versa. Whereas Suits and Appeals would be quite different from Applications and vice versa. Thus “Application” would be such which will not fall within the category of Suit and Appeal. When the law makers have used three words in section 29 of the Limitation Act then it emphasis that the implication of section 29 will be applicable in three separate and different categories of subject and rights accrued through filing of Suit, Appeal and Application. For re-admitting an Appeal neither the Suit nor the Appeal is to be filed but an Application is required to be filed and that Application would come within the meaning of word “Application” mentioned in section 29 of Limitation Act. No time limit is fixed for filing an Application for re admission of Appeal, in the Ordinance, 1979. As no time is provided for filing application for re-admission of appeal in the Ordinance, 1979, therefore, section 29 of Limitation Act will not be applicable in such situation. The Limitation Act being the general law lays down the general rule of Limitation, will be applicable to all cases dealt with by the Limitation Act. The Limitation Act deals with this situation in the shape of Article 168, which provides a period of limitation of 30 days for filing an Application for the re-admission of the Appeal dismissed for want of prosecution. Thus it will be Article 168 of Limitation Act which will govern the present proceedings.

 

The appeal was dismissed on 8-11-2000 but the same u. as filed on 18-8-2001, therefore, the Appeal was time-barred. It was required to have been dismissed by invoking the provisions of section 3 of Limitation Act. When the provisions of section 3 of Limitation. Act was attracted in such type of matters then section 4 to 25 of Limitation Act would be applicable, hence the provisions of section 5 of the Limitation Act would also be applicable for condoning the delay under which sufficient cause is to be shown for not making the Application within the period of limitation.

 

In the present case the petitioner alleged that on 8-11-2002, his Advocate Mr. Muhammad Aslam Bhutto was under paralysis, therefore, he did not appear before the Court as such on the said ground, the petitioner wanted that the delay of filing an Application may be condoned. In the present case the said Advocate was not present but the petitioner himself was also not present on that date. No sufficient cause was shown for his absence. The record reveals that Mr. Muhammad Aslam Bhutto, Advocate filed power of attorney on behalf of petitioner on 9-3-1991. The petitioner in his application under section 5 of the Limitation Act, in para.2 stated that his Advocate was lying on bed for the last 5 years. Thus the petitioner knew that before 4 years of dismissal of the appeal, his Advocate was bedridden, therefore, it was incumbent upon him to have- engaged some other Advocate or pursued the matter personally but he did not do so which clearly shows the gross negligence on the part of the petitioner. As such no sufficient cause was shown within the meaning of section 5 of the Limitation Act for condoning the delay.

 

After considering the material available on record, I am of the considered view that the impugned order does not suffer from any material irregularity or illegality, therefore, it does nit require any interference. ‘The petition is dismissed.

 

H.B.T./A-74/K Petition dismissed.

 

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