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Civil Petition for Special Leave to Appeal No. 573 of 1973, decided on 6th November, 1979.
(On appeal from the order of the Lahore High Court, Lahore, dated 26‑9.1978 in S. A. O. No. 451 of 1978).
----Ss. 13 & 15 read with Civil Procedure Code (V of 1908), O. IX‑ Dismissal of second appeal by High Court for non‑appearance of tenant appellant‑Application for restoration also refused by High Court‑Failure of clerk of counsel to notice case in cause list not considered by High Court to be sufficient for allowing indulgence of restoration of appeal‑No illegality found to have been committed in drawing such inference by High Court nor discretion exercised in a manner opposed to accepted princi ples of justice and equity‑Possession of disputed shop also found to have been delivered to landlord about one year back‑Petition for leave to appeal, held, without merit and dismissed.
Munir Ahmad, Advocate with Tanveer Ahmad, Advocate‑on‑Record for Petitioner.
Respondent in person.
Date of hearing : 6th November 1979.
‑The petitioner, a tenant, seeks special leave to appeal against an order of the Lahore High Court, Lahore, dated 26‑9‑1978, refusing the restoration of a second appeal against an order of eviction which was dismissed in default on an earlier date i. e. 16‑9‑1978.
2. The respondent‑landlord sought the eviction of the petitioner from a shop for its reconstruction. The Rent Controller dismissed the application on 13‑3‑1977. The Addl. District Judge on appeal directed the ejectment of the petitioner giving him a month's time to vacate the shop. The peti tioner filed a second appeal. It was listed for hearing in the High Court on 16‑9‑1978. The matter was called before interval but none appeared and it was Put off till after interval. Again it was called at i2‑35 noon and none appeared. An order dismissing the matter for non‑prosecution was, there fore, passed. On 21‑9‑1978 an application was moved seeking restoration of the second appeal, which was heard on 26‑9‑1978 and rejected Hence this petition.
3. The explanation given by the petitioner for his failure to prose cute the matter on 16‑9‑78 turned out to be that the counsel engaged in the case had gone abroad after making arrangement for the prosecution of the matter. It was the clerk of the counsel who omitted to note the fixation of the second appeal in the cause list of the day and could not instruct the counsel with whom an arrangement had been made for prosecuting the matter. The petitioner himself being a resident of Gujranwala could not be present. None therefore appeared and the dis missal of the appeal on failure to prosecute it was ordered.
4. It appears that the only cause given out by the petitioner for not prosecuting the case was the failure of the clerk of the counsel to notice the case in the cause list in which it found a place. This ground was note considered by the learned Judge in the High Court sufficient in the circum stances of this case for allowing the indulgence of restoration of the second appeal. We do not find that in drawing such an inference any illegality has been committed or that the discretion has been exercised in a manner opposed to accepted principles of justice and equity. We are also informed by the petitioner that he bad handed over the possession of the shop in execution of the decree of ejectment about a year back. In the circumstances, we do not find any merit in the petition, which is dismissed.
Petition dismissed
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