1989SCMR261 (PLP)

‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), O. X111, R. 9‑‑Ex parte order, setting aside of‑‑Counsel for petitioner was not present in Court on relevant date and no explanation was given‑‑High Court not finding sufficient ground, dismissed application of petitioner under O. XI1I, R. 9, C.P.C.‑‑Finding recorded by f4'gh Court was based on facts and called for no interference‑‑Petition for leave to appeal dismissed. Gul Zaman Khan, Advocate Supreme Court and A.Aziz DaMtgir, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 28th February, 1988. S.A. NUSRAT, J.‑‑This order will dispose of the above two petitions which arise out of a common order of the High Court dated 5‑8‑1986 whereby two First Rent Appeals Nos. 107/84, directed against main order dated 6‑12‑1983 and 36/86 from the order of the Rent Controller dated 14‑12‑1985 rejecting the petitioner's application under Order 13, Rule 9, C.P.C. were dismissed.

2. The ejectment case before the Rent Controller was fixed on 13‑7‑1983, which was declared a holiday. Thereafter, the case was taken up on 16‑7‑1983and was adjourned to 13‑8‑1983. According to the order sheet of the Rent Controller, which was closely examined by the learned High Court, the counsel for the parties were present on that date and the matter was adjourned to 5‑9‑1983 when it was again adjourned to 10‑10‑1983. On this last date, the appellant and their counsel remained absent and the respondent's side was closed and the case adjourned to 1‑11‑1983. The petitioner did not file any affidavit of evidence and consequently final order was passed on 6‑12‑1983.

3. It was contended before the High Court that no notice was issued to the petitioner after 13‑7‑1983 for the next date of hearing. However, it was found that later, on 1:"‑8‑1983 both the learned counsel were present when the matter was adjourned to 5‑9‑1983. As the counsel for the petitioner was present on 13‑8‑1983, his earlier absence on 13‑7‑1983 was of no consequence. The learned High Court has found that no explanation whatsoever was offered to show that the counsel for the petitioner was not present in the Court on 13‑8‑1983. The learned High Court, m the absence of any evidence, rightly placed reliance on the order sheet to hold that the counsel for the petitioner was present on 13‑8‑1983 and as such Further proceedings taken in the matter were in order. As respects the other order passed by the learned Rent Controller dismissing the petitioner's application under Order 13, Rule 9, C.P.C., the learned High Court did not find any sufficient ground and the application was dismissed. The findings recorded by the learned High Court are based on facts and call for no interference. The petitions are accordingly dismissed. M.Y.H./N‑108/S ??????????????????????????????????????????????????????????????????????????????? Petitions dismissed.