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First Rent Appeal No.107 and 36 of 1986 of 1984, decided on 5th August, 1986.

‑‑‑Ss. 15 & 21‑‑Civil Procedure Code (V of 1908), O.IX, R.13‑ Ejectment‑‑Ex parte‑‑Advocate for tenant choosing to remain absent on date of hearing without sufficient cause although his presence was established on date prior to date he remained absent and he had notice of said date of hearing‑‑Ex parte order of ejectment passed by Rent Controller as well as his order rejecting application of tenant for restoration of case, held, called for no interference.

P' L D 1964 SC 97 ref.

S.S. Hamid for Appellant.

Rahmat Ellahi for Respondent.

Date of hearing: 5th August, 1986.

Respondent had filed application for ejectment against the appellant which proceeded before the Controller and the matter was fixed on 13‑7‑1983. It was declared a holiday and the matter was taken up on 16‑7‑1983 when it was adjourned to 13‑8‑1983. According to the order sheet of the Controller the learned counsel for the parties were present on that day and the matter was adjourned to 5‑9‑1983 when it was again adjourned to 10‑10‑1983. On this date the appellants and their advocates were absent, the respondent closed her side and the matter was adjourned to 1‑11‑1983. The appellant did not file affidavit of evidence therefore final order was passed on 6‑12‑1983 and the ejectment application was granted. The appellant filed an application for setting aside the ex parte order passed against them which was dismissed on 14‑12‑1985. The appellants have filed two appeals viz. F.R.A. No.107/84 against the order of ejectment passed by the Controller and F.R.A. No.36/86 against the order passed on 14‑12‑1985 by which the application under Order IX, Rule 13 was dismissed. Pre‑admission notice was issued to the respondent and I have heard both the learned counsel for the parties.

Mr. S.S.Hamid the learned counsel for the appellants has contended that after 13‑7‑1983 no notice was served for the next date of hearing therefore the ex parte order passed by the Controller is illegal and should be set aside. In this regard the learned counsel has relied on P L D 1964 S.C. 97. In the present case there is a distinguishing factor that on 13‑8‑1983 according to the order sheet both the learned counsel were present and the matter was adjourned to 5‑9‑1983. If the presence of learned counsel for the appellant is established then it was not necessary to issue notice for the next date of hearing. The crucial point which arises is whether on 13‑8‑1983 the learned counsel for the appellants was present in Court or not. In this regard I have examined the affidavit filed by the parties, the order sheet and the record of the Controller. In none of the affidavits filed by the appellants it is mentioned that on 13‑8‑1983 the advocate for the appellants was not present and the diary sheet was wrongly written. In this regard it is pertinent to mention the relevant paragraphs of the application for setting aside the ex parte order. It reads as follows:-------------

"1. That the case was fixed for cross‑examination on 13‑7‑1983 for cross‑examination of the attorney of the applicant but since it was Friday the case could not be heard. No notice of further date was served on the opponent or his counsel.

2. That the counsel of opponent went on Haj pilgrimage in the month of August and returned in the first week of October but he was ill and could not attend his cases. He was already granted general adjournment from 20‑8‑1983 to 15‑10‑1983. 3. That during this period the opponent was seriously ill and could not contact the advocate for attending Court and believed that he served a fresh notice from Court as the case was fixed on Friday.

4. That the advocate after coming back from Haj remained unwell meanwhile the cross‑examination of the opponent was also closed on 1‑11‑1983 and an ex parte order of ejectment was passed on 6‑12‑1983 which fact came to light after long enquiries on 5‑1‑1983 that the final order was passed on 6‑12‑1983 and so at once an application for certified copy of the same was filed."

Mr.S.S.Hamid the learned counsel for the appellant states that he had filed rejoining in which he had explained that he was not present on 13‑8‑1983. Such rejoinder is not on record. I had given the file to Mr. S.S.Hamid advocate who after looking into it could not trace out the rejoinder. Mr. Rehmat Ellahi the learned counsel for the respondent also states that no copy of the rejoining was supplied to him. In the averments quoted above there is nothing to show that on 13‑8‑1983 the advocate for the appellants did not appear in Court. The learned counsel has stated that he had proceeded for Haj on A 28‑8‑1983 and general adjournment had been granted from 20‑8‑1983. In these circumstances his presence in Karachi on 13‑8‑1983 cannot be disputed. I had asked both the learned counsel to state whether they recollect that on 13‑8‑1983 both the learned counsel had attended the Court. Mr. S.S. Hamid Advocate states that he did not attend while Mr.Rehmat Ellahi the learned counsel for the respondent states that he clearly recollects that on that date the learned counsel for the appellants was present in Court. These are two dismetrically opposite statement made by two senior counsel. In these circumstances I will rely on the order sheet of the learned Controller. It is pertinent to note that even in the Memo of Appeal it has not been stated that on 13‑8‑1983 the advocate for the appellants did not attend the Court and order sheet of the Controller was wrongly written. It merely reiterates the facts stated in the application for setting aside the order. In these circumstances I am not inclined to accept the version that the appellant's advocate was not present on 13‑8‑1983. As his presence is established the absence on the subsequent dates was without any sufficient cause because the next date was known to the advocate and if he was proceeding for Haj he ought to have informed the party who was duty bound to attend the Court. In this view of the matter the order passed by the learned Controller requires no interference. Both the appeals are dismissed in limine.

M.Y.H./N‑31/K Appeals dismissed.

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