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First Rent Appeal No. 225 of 1985, decided on 4th May, 1985.

‑‑‑S.24‑‑Ex parts proceedings‑‑Setting aside of‑‑Plausible explanation duly supported by affidavit for absence from Court by counsel on date of passing of ex parts order‑‑Bona fide mistake of counsel, fairly conceded by opposing counsel, held, would amount to sufficient cause for setting aside order for ex parts proceedings.

Habibuliah Samo for Appellant.

Abdul Wali Makhdoom for Respondents.

This First Rent Appeal is directed against the order, dated 16‑3‑1985 of the Additional Controller of Rent, Clifton Cantonment, Karachi whereby the eviction application was allowed and the appellant was directed to hand over the disputed property before 31‑3‑1985.

The facts which give rise to this appeal are that the respondents are owners of shop Nos. 1. 2 and 3 on plot measuring 540 square feet adjoining the Jamil Masjid Falah, Gizri, Karachi, and the appellant is tenant in respect of these shops at the monthly rent of Rs. 750. The respondents filed eviction application under section 17 of the Cantonment Rent Restriction Act, 1963 on the ground of default and personal requirement. The appellant resisted the eviction application.

It seems that on 7‑5‑1984 the appellant submitted draft issues and rent account. On 29‑10‑1984 due to the absence of the appellant order for ex parte proceedings was passed. On 27‑11‑1984 the appellant filed application for setting aside the order of ex parte proceedings duly supported by affidavit of the counsel. The respondents filed counter‑affidavit .

The learned Additional Controller by order, dated 23‑2‑1985 rejected the application. The respondent filed affidavit in ex parte proof. The learned Additional Controller, after taking into consideration the arguments of the respondents, allowed the application by his order, dated 16‑3‑1984.

The appellant being aggrieved against the above order has preferred this appeal on the grounds mentioned in the memo of appeal.

Mr. Habibullah Samo, the learned counsel for the appellant, has contended that the appellant has sufficient cause for his absence on 29‑10‑1984.

On the other hand Mr. Abdul Wali Makhdoom has submitted that the appellant has not established sufficient cause for his absence on 29‑10‑1984.

I have taken into consideration the arguments of the learned counsel for the parties and have perused the impugned order and affidavit of the learned counsel for the appellant.

It seems that the case was adjourned to 9‑10‑1984 for submission of Rent Account and issues and the case was further adjourned to 27‑10‑1984 on the request of the respondent before the Advocate of appellant could arrive. The counsel of the appellant had inadvertently noted 10‑11‑1984 instead of 29‑10‑1984. The counsel for the appellant appeared on 10‑11‑1984 when he came to know that the case was already adjourned on 29‑10‑1984 for ex parte proof.

The learned counsel for the appellant has submitted at the bar that he had by mistake entered the rent case for the 10th November.

It seems that the learned counsel for the appellant gave a plausible explanation for his absence from the Court and hence this was a fit case for setting aside the order for ex parts proceedings.

The learned counsel for the respondent has fairly conceded that this is a fit case in which sufficient cause has been shown.

In the facts and circumstances of the case, the bona fide mistake of the counsel would amount to sufficient cause for setting aside order for ex parte proceedings.

For these reasons by a short order, dated 4‑5‑1985 the appeal was allowed and the case was remanded to the Additional Controller for disposal in accordance with law within three months from 4‑5‑1985.

H.B.T. Appeal allowed.

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