2011 PLP 1739 (MLD)

SALMAN HAMID, J.

Present Constitutional Petition (C.P), having been dismissed by this court for non-prosecution on 9-8-2010, instant Application under Order IX Rule 9 read with section 151, C.P.C. (Restoration Application), was filed on 18-8-2010, which was put up for orders in court on 27-8-2010, and notice was issued to Additional Advocate General for 13-9-2010, (perhaps due to mistake). Again Restoration Application was fixed for hearing in court on 1-10-2010. None was present on behalf of the petitioner; therefore it was adjourned to a date in office. On 14-1-2011, Restoration Application was once again fixed for hearing and on such date Mr. Sadhu Ram, Advocate appeared on behalf of respondents Nos.1 and

2. At joint request Restoration Application was adjourned to 24-1-2011, with an observation that it would be taken up along with C.P and would be heard and decided on merits. However, on 24-1-2011, request for adjournment was made on behalf of the counsel for respondents Nos.1 and 2 on the ground that the counsel was unwell. Time was allowed and the hearing was adjourned to 31-1-2011. Again on 31-1-2011, request was made on behalf of the counsel for the respondents Nos.1 and 2, on the same ground that he is unwell. Resultantly, hearing was adjourned to 4-2-2011, with a caution that if on the adjourned date learned counsel for the respondents Nos.1 and 2 would not be available to argue the Restoration Application, the same would be heard and decided in his absence. Yet again on 4-2-2011, learned counsel for the respondents Nos.1 and 2, was called absent. Keeping in view the apprehension of the learned counsel for the petitioner that the respondents Nos.1 and 2, are proceeding expeditiously before the executing court in getting enforced Order dated 21-12-2010, whereby it was ordered by the executing court that the possession of the Shop in question be handed over to the respondents Nos.1 and 2, Restoration Application was heard in absence of learned counsel for the respondents Nos.1 and 2.

2. Background of the case in hand is that in January 2002, the respondents Nos.1 and 2, demanded the petitioner to vacate their shop bearing No.DS-16/2, Ward-A Nasirabad (the Shop) inasmuch as it was required by them and/or by respondent No.2, son of respondent No.1, for his personal bona fide need to commence his business therein as he was doing his business in a rented shop far away from the Shop which was required for personal bona fide need. From the record of the file it seems that such bona fide need of the respondents Nos.1 and 2 was denied by the petitioner and/or an amount of Rs.200,000 was demanded for vacating the Shop. Confronted with such a situation, Rent Case No.2 of 2002 was filed before 1st Senior Civil Judge and Rent Controller, Larkana, which was subsequently transferred to Senior Civil Judge and Rent Controller, Kamber, when new District Kamber-Shandadkot at Kamber came into being, and Rent Case No.2 of 2002 was registered as Rent Case No.4 of 2005.

3. Written statement was filed by the petitioner wherein the allegation of demand of Rs.200,000 was denied. Personal bona fide need of the respondents Nos.1 and 2 was also disputed. It was stated in the written statement that the respondents Nos. 1 and 2 are owners of other shops and that some shops had also been sold by them. It was also stated in the written statement that the Rent Case was filed only to have the rent of the Shop increased, which in the first instance was Rs.100 a month and was subsequently enhanced to Rs.130 a month. It was also mentioned in the written statement by the petitioner that earlier in time Rent Case No.9 of 1994 was filed, which was dismissed in December, 2000. In view of such position, it was prayed by the petitioner that the Rent Case, filed by the respondents Nos.1 and 2 be dismissed.

4. After trial of Rent Case No.4 of 2005, before the Senior Civil Judge and Rent Controller, Kamber, he allowed the same in terms of his judgment dated 30-10-2006, when the Rent Controller came to the conclusion that indeed the respondent No. 2, who is the real son of the respondent No.1 is doing his business in a rented premises and that the Shop was in fact required by them for their personal bona fide need to do their own business therein.

5. Above judgment dated 30-10-2006, was challenged by the petitioner by way of filing of First Rent Appeal No.3 of 2006, before the Additional District Judge, Kamber. The Additional District Judge, Kamber, also in terms of his judgment dated 11-6-2009, dismissed the First Rent Appeal and uphold the Judgment dated 30-6-2006, of the Rent Controller, Kamber, by observing that the impugned judgment does not suffer from any illegality or infirmity. The learned Additional District Judge, Kamber, came to such conclusion after going through the record of the Rent Case and the judgment minutely as clearly reflected in his judgment of 11-6-2009.

6. Aggrieved and dissatisfied by the concurrent findings of the above two courts, present C.P was filed by the petitioner on or about 28-8-2009, with which Miscellaneous Application No.1749 of 2009, for stay was also preferred. C.P. along with the M.A. came up for katcha peshi/order before this court on 4-9-2009, when this court was pleased to suspend the operation of the impugned Orders and was further pleased to admit the C.P and ordered notice to the respondents.

7. It appears that from 4-9-2009, upto 9-8-2010, for one reason or the other the petitioner remained successful in getting adjournments after adjournments in the C.P. The record of C.P would show that despite giving many, "last chances" to the petitioner and/or his various counsel to argue the case, it was not argued at all. It seems that in order to forestall the hearing of C.P, the petitioner from time to time engaged new counsel and such new counsel appeared before the court with the request that some time may be granted to prepare the case. The record of the file would show that the first counsel of the petitioner was Mr. Naseer Muhammad Siyal, Advocate, who filed his vakalatnama on 28-8-2009, then Mr. Faiz Muhammad Larik, Advocate filed his vakalatnama on behalf of the petitioner on 10-2-2010, followed by vakalatnama of Mr. Abdul Rehman, Advocate, who filed his vakalatnama on 24-5-2010. Thereafter, Messrs Aftab Ahmed Gorar and company filed their vakalatnama on behalf of the petitioner on 22-6-2010, and lastly Mr. Imdad Ali Mashori, Advocate filed his vakalatnama on 18-8-2010. It may be noted that none of the learned counsel moved application for withdrawal of their vakalatnama, filed on behalf of the petitioner. However on 2-7-2010, names of Messrs Aftab Ahmed Gorar and Abdul Rehman A. Bhutto at the request of petitioner, who was present in person on such date were ordered to be deleted from the cover of the file and they were discharged. Rest of the learned counsel deemed to continue to appear on behalf of the petitioner as none of them sought discharge. On 9-8-2010, when this C.P was dismissed for non-prosecution at least three learned counsel were representing the petitioner.

8. Grounds taken by the petitioner in the affidavit filed in support of the restoration application that due to, "poverty" he could not pay professional fee to his, "previous advocate", hence his advocate had withdrawn his vakalatnama under the circumstances is not tenable. It is also mentioned in the affidavit of the petitioner that the C.P was adjourned to a date in office on the last date of hearing as such he was not aware of the date. The affidavit of the petitioner further mentions that the petitioner engaged Mr. lmdad Ali Mashori, Advocate, and when he approached this court on 11-8-2010, for filing of vakalatnama and fixation of the date of C.P he came to know that the C.P was dismissed for non prosecution on 9-8-2010. It is also mentioned in the affidavit of petitioner that he is an illiterate person and had no knowledge about date of hearing and therefore his absence on such date was neither deliberate nor wilful.

9. As against above claims of the petitioner on oath, the record of the file would show that on 2-7-2010, the petitioner was present in person on which date Mr. Aftab Ahmed Gorar Advocate, and Mr. Abdul Rehman Bhutto, Advocate were also present and informed the court that the petitioner intends to engage another advocate. Under the circumstances, this court granted time to the petitioner to engage new counsel and adjourned the matter to 21-7-2010. Names of Messrs Aftab Ahmed Gorar and Abdul Rehman Bhutto were ordered to be deleted from cover of the file and they were discharged. On 21-7-2010, this C.P was discharged, and thereafter it was fixed for katcha peshi and hearing of M.A No.1749 of 2009, on 9-8-2010, on which date it was dismissed for non-prosecution.

10. Saying that the petitioner is a poor man and could not pay professional fee to his previous counsel is hardly a ground, keeping in view the fact that in all six counsel were engaged by the petitioner in the C.P and out of such six counsel names of only two learned counsel had been deleted and/or were discharged. It is difficult to conceive that a poor person could afford six different counsel in a case and pay their fees. Even otherwise this is no ground to remain away from the case. Thus on the date of dismissal of C.P, i.e. 9-8-2010, still vakalatnama of three counsel were available on the record of the file. Petitioner's argument that due to poverty he could not pay professional fee to his previous counsel, hence previous counsel had withdrawn his vakalatnama does not find support from the record of the file. It is not clear as to which of the counsel's fee the petitioner could not pay with the result that such counsel did not appear. As long as vakalatnamas of the learned counsel for the petitioner were available on the record of the file, such learned counsel were duty bound under to have safeguarded the interest of the petitioner. This having not been done, the petitioner would be at liberty to have redressal of his grievance as provided under the law.

11. The argument that the petitioner was not aware of the date of hearing of C.P is without merit, for two fold reasons. Firstly, Order dated 2-7-2010, would clearly show that the petitioner sought time to engage new counsel and the C.P was adjourned to 21-7-2010. Therefore, under the circumstances, the petitioner was under obligation and duty bound to have engaged counsel well before 21-7-2010, so that the new counsel could appear on his behalf on 21-7-2010, after filing vakalatnama in advance in the C.P, more particularly because many last chances had been given to the petitioner to proceed with the matter. This unfortunately was not done by the petitioner. Secondly, in the objections filed by the respondent No.1 to the Restoration Application it is specifically mentioned that the petitioner was present in court premises outside the court room on 9-8-2010, and despite call of the C.P. he chose to remain away. It may be noticed that this specific allegation has not been denied by the petitioner, which under the circumstances would be taken as true and correct. Moreover, in the affidavit, the petitioner has stated that he engaged Mr. Imdad Ali Mashori, Advocate, and thereafter he came to the court on 11-8-2010, and found out that the C.P. was dismissed on 9-8-2010. This assertion of the petitioner again shows that at-least on 9-8-2010, or between a period 9-8-2010 and 11-8-2010, petitioner engaged Mr. lmdad Ali Mashori, Advocate as his new counsel in the C.P., who signed his vakalatnama during such period and handed it over to the petitioner for its filing in court in the C.P. and on 11-8-2010, the petitioner came to the court for such purpose and found out that C.P., was dismissed on 9-8-2010. As against this fact, the record of the file would show that Mr. lmdad Ali Mashori, Advocate filed his vakalatnama on 18-8-2010, at the time of filing of restoration application and it was not filed on 11-8-2010, as claimed by the petitioner. It therefore, shows that the petitioner was well aware of the date of C.P., when it was fixed in court on 9-8-2010, however he and his counsel chose to remain away. Therefore their absence on 9-8-2010 is taken as deliberate and intentional to cause delay in decision of C.P. and make the respondents Nos.1 and 2 run from pillar to post in obtaining possession of the Shop in the garb of ex parte stay Order, passed by this court on 4-9-2009 i.e. at-least, 11 months prior to the date of dismissal of C.P. for non-prosecution. Mala fide conduct of the petitioner speaks volumes which disentitles him from seeking relief of restoration. He who seeks equity must also do equity.

12. Looking at all the above aspects of the case, be such are in respect of merits of C.P. itself or in respect of the Restoration Application, it would become clear that throughout, the petitioner has deliberately acted negligently and took the court proceedings for granted and remained away. Consequently under such state of affairs this court is not inclined to slant in his favour.

13. For all above reasons, the Restoration Application is dismissed being meritless, however, with no order as to costs. S.A.K./G-31/K Application dismissed.