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First Rent Appeal No.672 of 1986, decided on 2nd February, 1987.

---Ss.15 & 21--Civil Procedure Code (V of 1908), O.IX, R.13- Ejectment--Ejectment application allowed by Rent Controller when tenant remained absent on dates fixed for his cross-examination and did not attend even after getting repeated adjournments at his request- Tenant's application filed under O. IX, R.13, C.P.C. dismissed by Rent Controller--- Absence of tenant not explained by him--Tenant taking plea of sickness but his plea was not supported by medical certificate- Where tenant completely ignored proceedings and showed lack of interest and negligence in matter, order of Rent Controller allowing ejectment application of landlord and dismissing tenant's application filed under O. IX, R. 13, C.P.C. was upheld in circumstances.

S. S. Hamid for Appellant.

Muhammad Yousuf for Respondent.

Date of hearing: 2nd February, 1987.

The respondent had filed case for ejectment of the appellant in which the parties had filed their affidavit of evidence during the proceedings. The respondent had closed his side on 13-7-1985 and thereafter matter was fixed for cross-examination of the appellant and his witnesses. The matter kept on adjourning when on 5-4-1986 the advocate for the appellant filed application for adjournment on the ground that due to illness the appellant is unable to attend the Court. The learned Controller observing that the witnesses of the appellant were absent without any reason and as the advocate for the respondent had strongly opposed adjournment and the matter was quite old he adjourned it to 12-4-1986 subject to payment of cost of RS-100. On 12-4-1986 some one for the advocate for the appellant moved an application for adjournment as the advocate for the appellant had gone to Khozdar for an urgent work. This application was dismissed on the same date. The learned Controller noted that the matter was fixed for cross-examination of the appellant and his witnesses and the application did not explain their absence. On that date the matter was adjourned to 19-4-1986 for arguments. Again on this date application for adjournment was filed by the appellant on the ground that he had gone to Shevan Sharif where he fell ill and he was unable to attend the Court. This application was also dismissed on the same day. The matter was put off to 30-4-1986 for final orders. The advocates were allowed to file written arguments in the meantime. The matter was called on 30-4-1986 when the advocate for the respondent was present but the appellant and his advocate were absent and the matter was adjourned to 10-5-1986 for the same purpose. It was again adjourned to 12-5-1986 for final orders again the appellant and his advocate were absent and the matter was put off to 13-5-1986. On this date the respondent's advocate was present and none was present for the appellant and the matter was adjourned to 15-5-1986 for final orders. On this date the case was allowed to 17-5-1986 for orders when the ejectment application was allowed with costs.

The appellant filed an application under Order 9 Rule 13 C.P.C. on 1-7-1986. Notice was issued and the respondent filed his objection to the application. The learned Controller by the impugned order dismissed the application.

Mr. S.S. Hamid the learned counsel for the appellant has contended that the respondent can be compensated by costs. This can hardly be an argument for challenging the order. From a perusal of the entire record it seems that the appellant had not appeared on 5-4-1986 but his advocate was present and the case was adjourned to 12-4-1986. Again as stated earlier it was adjourned to 19 -4-1986 when the application for adjournment of the appellant was dismissed. But on 19-4-1986 although the application was made and was found on record by the learned Controller the appellant and his advocate were absent and thereafter they remained absent till the final order was passed on 17-5-1986. In these circumstances it cannot be urged that the appellants were not aware of the proceedings. In fact he through his advocate was taking part in proceedings right upto 15-4-1986 when an application for adjournment had been presented and rejected. The absence of the appellant and his advocate from 19-4 1986 onwards has not been explained. However, in his affidavit the appellant has stated that on 10-5-1986 he was sick at Hala and was unable to attend the Court. The learned Controller had rightly noted that the absence of the appellant on 12-5-1986 has not been explained.

Mr. S.S. Hamid has argued that 10-5-1986 is a typographical error and it ought to be read as 10-4-1986. Upto this date except the oral submission by the appellant's advocate no step has been taken to correct this alleged error. He has not filed any affidavit to correct it nor such a plea has been taken in the memo of appeal. Even otherwise if the appellant was sick on 10-4-1986 then the application for adjournment which was filed on 12-5-1986 would have mentioned his earlier sickness. That application proceeded on the premises that the appellant's advocate had gone to Khozdar.

The appellant while taking the plea of sickness had made a statement in his affidavit but it was not supported by any medical certificate and, therefore, the learned Controller rightly disbelieved his version. The appellant in completely ignoring the preceding from 19-4-1986 onwards shows his lack of interest or complete negligence in the matter. Even if his side was closed he could be participated in the proceeding, argued the case and after the final order was passed could have filed an appeal against the impunged order in which even the plea mentioned in application under Order 9 Rule 13 C.P.C. could have been incorporated. He has remained absent and slept over the matter and has not filed any appeal against the order of ejectment. The order of Rent Controller is just and proper and does not require interference. The appeal is dismissed. The appellant is directed to hand over vacant possession of the premises to the respondent within two months from today.

M.Y.H./M-95/K Appeal dismissed.

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