2002 PLP 3239 (YLR)

Qamar‑uz‑Zaman for Respondents. Date of hearing: 1st February, 2002. Briefly stated the facts of the case are that respondent No.2 filed an ejectment application, against the appellants which was contested and the learned trial Court, allowed the same vide order dated 16‑10‑1999. Aggrieved, appellants preferred an appeal but in the memo. of appeal, respondents Nos.2 and 3, who were not party to the ejectment proceedings, were also impleaded as such, therefore, the objection was raised by respondent's counsel for their deletion. Learned Court in appeal vide order dated 3‑4‑2000, adjourned the case with the direction as sunder:‑-- "The point for examination is that as to whether respondents Nos.2 and 3, are necessary parties and on this point, the argument, shall be heard from learned counsel for the parties on the next date. " Case was adjourned to 6‑4‑2000. On 6‑4‑2000, learned Presiding Officer was on leave. Reader adjourned the case for 18‑4‑2000, when none represents the appellants consequently appeal was dismissed for non‑prosecution; the appellants, moved an application for seeking restoration of the appeal on 29‑4‑2000, which has been rejected by the learned appellate Court on 27‑9‑2000, primarily discussing the previous conduct. of the appellants, holding that the appellants throughout have been trying to prolong the proceedings of the case.

2. Learned counsel for the appellants, contends that the order impugned is without lawful authority, because the main appeal was not fixed for hearing on 18‑4‑2000, rather, was fixed for considering the point noted in the order dated 3‑4‑2000, reproduced above, thus when the appeal was not so fixed, it could not have been dismissed for non‑prosecution.

3. Conversely, learned counsel for respondents has taken me through the order sheet of the Court in appeal and contends that the conduct of the appellants, disentitle them for the grant of discretionary relief. However, learned counsel has not been able to rebut the factual position of the record, that the case was adjourned to 6‑4‑2000 for, considering the point about the impleadment or otherwise, of respondents Nos.2 and 3 and on said date, learned Presiding Officer being on leave, matter was adjourned to 18‑4‑2000. Obviously, 18‑4‑2000, was the date fixed in absence of the learned Presiding Officer, by the Reader, or even by the Duty Judge, but for the purpose of considering the point noted in the order dated 3‑4‑2000, resultantly, appeal was not fixed on that date therefore, same could not have been dismissed for non‑prosecution. At the best, the Court should have decided the point fixed for consideration, as noted in the order mentioned above, against the appellants and then fixed the case for hearing of the appeal on merits. In the light of above, and also in the interest of justice, the impugned order is not sustainable in the eyes of law, which is hereby set aside. However, as regard the argument of learned counsel for the respondent that the appellants had been trying to prolong and lingering on the matter, I have perused the order sheet and. find that the appellants, are deliberately trying to prolong the matter and delaying the same, thus this appeal is allowed subject to payment of costs of Rs.5,

000. Parties are directed to appear before the Court below on 18‑2‑2002, on which date appellants shall pay the costs. Otherwise, this appeal would be deemed to have been dismissed. Moreover, learned appellate Court, after hearing the parties, on the merits of the case as also on the point noted in the order dated 3‑4‑2000, decide the matter within two months from the first date of appearance of the parties. Learned counsel for the respondents, at the very out set, has objected to the maintainability of the present S.A.O. and stated that this has been filed against the order dated 27‑9‑2000, whereby the application of the appellants for seeking restoration of his appeal, dismissed for non‑prosecution on 18‑4‑2000, was dismissed, thus no S.A.O. is competent.

2. I have heard learned counsel for the parties and find that the present appeal is incompetent. However, in the interest of justice, appeal is treated as writ petition. Office is directed to number the matter as writ petition. After hearing learned counsel for the parties and the point noted in the order dated 26‑10‑2000, this petition is admitted to regular hearing. Vide separate judgment of even date, this petition is allowed. H.B.T./M‑1015/L. Petition allowed.