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Civil Appeal No. 48‑K of 1985, decided on 9th November, 1985.
(On appeal from the judgment and order of the Sind High Court, dated 23‑12‑1984, in F.R.A. 40 of 1982).
(a) Constitution of Pakistan (1973)‑‑
‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.21‑ Leave to appeal granted to examine legality of order dismissing appeal under S.21(1) of Ordinance (XVII of 1979), for non‑prosecution.
(b) Sind Rented Premises Ordinance (XVII of 1979)‑‑
‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), O. XLI, R. 19 Appeal against ejectment‑‑ Adjournment sought on ground of counsel's illenss, refused‑‑Appeal dismissed for non‑prosecution Application for re‑admission of appeal also dismissed‑‑Medical certificate in support of illness considered doubtful‑‑Counsel failing to satisfy Court that the appellant was prevented from appearing for sufficient cause‑‑High Court not having exercised its discretion arbitrarily in refusing adjournment in circumstances of case and no sufficient ground having been made out for readmission of appeal on merits, Supreme Court found no illegality in impugned order and dismissed appeal.
Faizanul Haq, Advocate‑on‑Record for Appellant.
A.K. Idrees, Advocate Supreme Court and A., Aziz Dastgir Advocate‑on‑Record for Respondent.
Date of hearing: 9th December, 1985.
Leave was granted in this appeal in order to examine the legality of the order, dated 2nd September, 1984, passed by a learned Single Judge of the Sind High Court, whereby he dismissed the appeal of the present appellant, under section 21(1) of the Sind Rented Premises Ordinance, 1979, for non‑prosecution.
2. The facts relevant for the present purpose are that upon .the application of respondent, the Rent Controller ordered the eviction of the appellant from the premises in dispute on 1st December, 1981. The appellant thereupon filed an appeal under section 21 of the Sind Rented Premises Ordinance which was fixed for regular hearing before the learned Single Judge of the High Court on 2nd September, 1984. On this date Mr. Zaheer Hussain Chishti, learned counsel representing the appellant sent an application for adjournment through another counsel, namely, Mr. A.Q. Malik on the ground that the former was suffering from fever. This request was opposed by the counsel for the respondent who stated to the Court that Mr. Zaheer Hussain Chishti was hale and hearty, and that the ground urged for adjournment was incorrect. The learned Judge taking into consideration the past conduct of Mr. Zaheer Hussain Chishti who had obtained several adjournments on the ground of illness before dismissed the application and also the appeal for non‑prosecution. Subsequently on 22nd September, 1984, an application under Order XLI, Rule 19, C . P. C . for readmission of the appeal was submitted along with a medical certificate in support of the illness of the appellant's Advocate. By the impugned order, dated 23rd December, 1984, the learned Single Judge dismissed this application also. In this order the learned Judge recalled that Mr. S. Hamid, Advocate, for the respondent had made statement at the bar that Mr. Zaheer Hussain Chishti was not suffering from fever and that he was quite well. Learned Judge was of the view that after obtaining stay of the impugned order of eviction before him, an attempt was being made to prolong the proceedings as in the past the appeal had been dismissed for non‑prosecution.
3. We have heard the learned counsel appearing for the parties today. On a first impression we thought that the illness of the counsel appearing for the petitioner supported by the medical certificate was a sufficient ground for restoration of the appeal. However, learned counsel for the respondent pointed out that the certificate appears to be a fake one for the simple reason that it bears the date of 2nd September, 1984 and yet it was not produced along with the application for adjournment submitted on the said date. We feel that the delay in submitting the certificate much after the date of its issue was a material factor to be taken into consideration. If Mr. Chishti could send an application signed by himself for adjournment, he could as well forward the medical certificate alongwith it to the Court. In any case as the fact of the illness of Mr. Chishti was denied categorically before the learned Judge, it was for him to satisfy the Court that the appellant or his counsel was prevented from appearing in the Court for sufficient cause.
4. The other ground of objection that requires consideration was whether in presence of Mr. A.Q. Malik who was holding brief for Mr. Chishti, the Court could dismiss the appeal for non‑prosecution. It has been submitted on behalf of the respondent that Mr. A.Q. Malik was holding brief only for the purpose of submitting the application for adjournment and did not advance any argument in support of the appeal. This statement has not been challenged on behalf of the appellant. Therefore, the Court was right in holding that there was no one to prosecute the appeal and was competent to dismiss the same for non‑prosecution.
5. On an overall consideration of the facts and circumstances of this case we are satisfied that the learned Judge in the High Court did not exercise his discretion to refuse adjournment of the case on 2nd September, 1984, arbitrarily. As there was no sufficient ground made out for readmission of the appeal on the merits of the case, we find n Illegality in the order. In the result this appeal is dismissed with no order as to costs.
M.I. Appeal dismissed.
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