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Civil Petition for Special Leave to Appeal No. 13 of 1973, decided on 1st October 1973.
(On appeal from the judgment and order of the Lahore High Court, dated the 26th of September 1972, in S. A. O. No. 298 of 1970).
--‑‑Art. 186(3)‑Point raised merely of academic interest‑Leave to appeal refused.
Saleem Ahmad Malik, Advocate‑on‑Record Supreme Court for Petitioners.
Mahmood A. Qureshi, Advocate‑on‑Record Supreme Court for Respondent.
Date of hearing t lilt October 1973.
This petition for special leave to appeal is from the order of a learned Single Judge of the Lahore High Court dismissing the second appeal of the Petitioners. The petitioners had challenged before the High Court the validity of the order of the learned Additional District Judge dismissing their application for restoration of the appeal.
The parties are son and widow of Nawabzada A. K. Mumtaz, who was a tenant under the respondent. The respondent filed an ejectment applica tion against the tenant on the grounds of default in payment of rent and of subletting. During the pendency of the application the Rent Controller passed an order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance on the 14th of July 1966, for deposit of arrears of rent and for payment of future rents. The tenant preferred an appeal from this order. The appeal was, however, consigned to the records do the 14th of May 1969, on the ground that the appellant had died on the 24th of April 1969, and no steps had been taken to bring his legal representatives on the record.
Thereafter two applications were filed on behalf of the petitioners, one for impleading them as legal heirs of the deceased tenant, and the other for restoration of the appeal and setting aside its abatement. On the 24th of November '1969, the Additional District Judge dismissed the application for non‑prosecution. On the 25th of November 1969, two more applica tions were made, one for impleading the legal representatives of the deceased tenant, and the other for restoration of the appeal. Both the applications were dismissed on the 1st of June 1970, on the grounds that no application for restoration of a previous application for restoration of appeal lay and that in any event there was no sufficient cause for the restoration. The petitioners then filed the 2nd appeal before the High Court.
It has been contended that the High Court was wrong in holding that the application for restoration of a previous application for restoration of appeal was incompetent. We are told that the application for ejectment has since been decreed. That being so the contention is merely of academe interest. The proceeding of the application not having been ‑stayed, culminated in the passing of the final order of ejectment.
It has next been contended that the High Court has failed to consider the second ground of dismissal of the applications, namely, absence of sufficient cause, and this has vitiated the order of the Court. The contention is misconceived because the High Court has considered this ground in paragraph .5 of its order. The High Court has observed as follows in the said paragraph :‑
"In the application dated 25th November 1969, Ch. Ghulam Mujtaba learned counsel for the appellant submitted that he was busy before the Supreme Court ,on that day. The learned lower appellate Court dismissed the appeal at 2‑16 p.m. as the Supreme Court does not work at that time. It was within the jurisdiction of the lower appel late Court to have considered this case as sufficient one for restoration of the appeal. This having not been shown such an order cannot 'be interfered with even if the appeal is competent against that order."
The petition is accordingly dismissed.
Leave refused.
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