2005 PLP 1966 (YLR)

Laws Cited

Representation

• ----Art.199---Constitutional petition--Dismissal in default---Restoration---Constitutional petition against concurrent judgments of Rent Controller and Appellate Authority was adjourned several times on the request of petitioners---Finally petitioners and their counsel having failed to appear on the date of hearing, Constitutional petition was dismissed for non-prosecution---Application for restora tion of petition was not supported by' affidavit and no cogent reason was given by petitioners as to why they were not present at the time when matter was called in Court---Petitioners, right from the beginning, had acted in gross negligent manner---Since application for restoration was not supported by affidavit of petitioners, application having no merits was dismissed.
• Mazhar Ali M. Siddiqui for Petitioners.
• Jai Jai Veshnu for Respondents.
• 2. On 23-6-2003, notice was issued to the respondents, thereafter matter was adjourned from time to time. On 8th December, 2003 the petition was again adjourned by consent of the parties to 20-1-2003 and on 20-1-2003 the matter was again adjourned to 26-1-2004, as the learned Advocate for the petitioners was not well. On 26-11-2004, as the petitioners and his Advocate were not present, the petition was dismissed for non-prosecution. The application for restoration was filed which was allowed on 23-2-2004 by consent of the parties and matter was adjourned to 10-3-2004. On 10-3-2004 petition was adjourned to 5-4-2004 as the learned Advocate for the petitioners was not prepared with the brief. 5th April 2004 was declared as holiday, and matter was fixed on 21-4-2004 for hearing on which date again adjourned to 4-5-2004 at the request of learned Advocate for the petitioners as he was not well. On 4-5-2004 none was present on behalf of the petitioners and matter was dismissed for non-prosecution. Application for restoration being M.A. No.436 of 2004 was filed. Notice was issued on 30-8-2004. On 11-10-2004 my learned brother Mushir Alam, J. adjourned the matter to 27-10-2004 while directing the learned counsel for the petitioners to make out a case on merits when the application for restoration may be considered on the next date of hearing. On 27-10-2004 board was discharged and matter was again listed on 23rd November, 2004 on which date none was present on behalf of the petitioners and application was dismissed for non-prosecution. The petitioners' Advocate filed application for restoration of petition.
• 3. Heard learned Advocate for the petitioners as well as respondents. Before dealing with the application being M.A. No.570 of 2004 for restoration of M.A. No.436 of 2004 an application for restoration of the petition dismissed for non-prosecution on 4-5-2004. I would like to discuss the merits of the petition in terms of order passed by my learned brother Mushir Alam, J on 11-10-2004.
• 5. Mr. Mazhar Ali learned Advocate for the petitioners frankly conceded that the property bearing No.34/53/1 is a .different property than the premises in question. Learned Advocate further conceded that Abdul Latif opponent No.1 is brother of petitioner No.2 and maternal uncle of petitioner No.1, however, he did not contest the proceeding. Learned Advocate failed to point out anything from the record that as to how and under what capacity they are in possession of the property in question. He further failed to point out that they or Mr. Abdul Latif ever tendered the rent to respondent/landlord and or deposited rent at any time in the name of respondent. Admittedly the petitioners are in possession of the property in question and contesting the matters from last 20 years without any title and deprived the respondent (landlord) from using his own property. The petitioners have no case on merits.
• Coming to the application for restoration, said application is supported by the affidavit of learned Advocate for the petitioners only and was not supported by an affidavit of petitioners giving any cogent reason why they were not present at the time when the matter was called in Court. From the record it appears that the petitioner right from the beginning has acted in gross negligence manner. The petition was dismissed for non-prosecution first on 26-1-2004, thereafter restored by the consent of the parties and again dismissed for non-prosecution on 23-11-2004. The application for restoration was dismissed for non-prosecution on 4-5-2004. Since the application is not supported by the personal affidavit of the petitioners listed application has no merits and is accordingly dismissed.

Headnotes / Summary

Judgment & Decree