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First Rent Appeal No. 606 of 1981, decided on 28th April, 1985.

Sind Rented Premises Ordinance (XV11 of 1979)--

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21--Civil Procedure Code (V of 1908), O. XLI, r. 11--Dismissal of appeal for non-prosecution on day fixed for hearing of appeal- Application for restoration of appeal filed by appellant--Counsel in his affidavit stated that he could not attend Court due to acute Vain--Such affidavit submitted after five months of dismissal of appeal--field, it was duty of counsel, that if he could not appear due to some reason on day of hearing, he should have filed application for setting aside order passed when he came to know that appeal had been dismissed for default--No sufficient cause having been shown, application for setting aside dismissal of appeal was rejected.

Joint Secretary, Ministry of Religious and -Minority Affairs and 2 others v. Mobina Begum 1985 C L C 231 ref.

P L D 1963 Kar. 424 ref.

S. Ansar Hussain for Appellant.

Muhammad Sadiq for Respondent.

Date of hearing: 28th April, 1985.

The appeal was listed for hearing on 15-11-1984. On that day neither the counsel nor the appellant were present and the appeal was dismissed for non-prosecution. On 13-12-1984 the appellant moved an application for setting aside the ex parte order and it is stated that his Advocate could not appear before this Court on 15-11-1984 for unknown reasons although a day before he had contacted him and persuaded him to appear. A counter-affidavit has been filed by the respondent denying the contents of the affidavit filed by the appellant. The counsel Mr. Nazir Hussain Sajan Allana filed an affidavit on 20-4-1985 wherein he has stated that on 15-i1-1984 he suddenly felt acute pain and due to this unexpected fact he could not attend this Court in time to proceed with this matter and on enquiry the next day he came to know that the appeal was dismissed in default.

Learned counsel for the appellant has stated that the previous counsel has filed his personal affidavit and, therefore, this appeal may be restored for regular hearing.

The application has been opposed by the learned counsel for the respondent who has stated that the appellant's counsel came to know that the case has been dismissed but did not make any application for setting aside the ex parte order. The appellant has moved this application on 13-12-1984. Reliance has been placed on a Division Bench judgment of this Court, Joint Secretary, Ministry of Religious and Minority Affairs and 2 others v. Mobina Begum, reported in 1985 CLC 231. This authority on all four applies to the facts of the present case. It was the duty of the counsel that if he could no appear due to some reason on 15-11-1984, he should have, filed an application for setting aside the order passed when he came to know that the appeal has been dismissed for default. But the counsel has filed his affidavit on 20-4-1985, almost after five months of the order of dismissal.

Learned counsel for the appellant has referred to P L D 1963 Kar. 424: As stated above the latest authority of a Division Bench of this Court has been cited by the learned counsel for the respondent which applies to the facts of this case.

No sufficient cause is shown to set aside the ex parte order passed on 15-11-1984.

The application is, therefore, rejected.

A.A.

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