2000 PLP 1114 (SCMR)

CH. MUHAMMAD ARIF,. J.

In this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 leave is claimed by the petitioner against order dated 2-11-1999 passed by a learned Judge in Chambers of the Lahore Court, Rawalpindi Bench, Rawalpindi in FAO No.41 of 1990 during its pendency alongside Regular First Appeal No.3 of 1989 which reads thus: "In spite of repeated adjournments, learned counsel for the appellant are not appearing. Although the appellant has engaged three counsel i.e. Sh. Maqbool Ahmad, Advocate, Hafiz S.A. Rehman, Advocate and Kh. Farooq Ahmed, Advocate, yet this matter is lingering on since 1990 and the operation of the impugned order was suspended by this Court on 24-11-1990. The appellant requests for adjournment. We are not inclined to extend the stay granted to the appellant on 24-11-1990 subsequently modified vide order dated 11-11-1996. The respondent would be at liberty to file the execution petition against the appellant. However, the main appeal is adjourned to a date fixed by the office." It may be pointed out that the abovementioned stay order dated 24-11-1990 was passed by a learned Judge in Chambers and it was thereafter that F.A.O. No.41 of 1990 and C.M. No.922/C of 1990 were directed to be heard alongwith R.F.A. No.3 of 1989 (on 1-6-1992).

2. According to Mr. Sardar Muhammad Ghazi, learned Advocate Supreme Court appearing in support of this petition, the order of suspension remained operative throughout. Hearing of F.A.O. No.41 of 1990 along with F.R.A. No.3 of 1989 was directed as the latter appeal had arisen out of a suit filed by the petitioners for possession through specific performance of agreement dated 29-5-1992 and for perpetual injunction restraining the respondent from alienating the suit property i.e. House No.A/90, Lala Rukh Wah Cantt. District Rawalpindi, which was dismissed on 12-1-1989. On 11-11-1996 the petitioner was directed to deposit the future monthly rent with the learned Rent Controller by 5th of each succeeding month and further directed that non-deposit of arrears or the monthly rent shall warrant straightaway eviction of the petitioner from the premises. It was also ordered that F.A.O. No.41 of 1990 alongwith FRA No.3/89 shall be fixed for hearing on 8-12-1996. The petitioner challenged order dated 11-11-1996 in this Court through C.P. No.665 of 1996 which was dismissed on 22-1-1997. This Court allowed two weeks' time to the petitioner to comply with order dated I1-11-1996. This was done and the arrears of rent amounting to Rs.38,000 were deposited and the monthly rent is being continuously deposited with the Court of Rent Controller, Wah Cantt. Further, that the case did come up for hearing on 29-9-1997 but was adjourned. No hearing of FAO No.41 of 1990 took place on 20-11-1997, 18-12-1997 and 16-3-1998 although the counsel for the petitioner was present in Court. The impugned order dated 2-11-1999 was passed, the stay granted him on 24-I1-1990 was not extended and the injunctive order was recalled. He has reiterated the prayer-clause of this petition which makes the following reading:-- "It is, therefore, prayed that in the circumstances the petition may graciously be converted into an appeal and order dated 2-I1-1999, passed by the Lahore High Court Rawalpindi Bench recalling the injunctive order may graciously be set aside and the injunctive order dated 24-11-1990 may please be restored till the hearing of R.F.A. No. 3 of 1989 and F. A. O. No. 41 of 1990 take place." At this juncture, Mr. Ghazi was asked to state whether the petitioner raised any plea before the High Court on or even after 2nd of November, 1999 showing any reason/ground justifying absence of his learned counsel on 2-I1-1999 but his reply was in the negative and that only the instant petition was resorted to on 17-11-1999.

4. We are afraid the petitioner is himself to blame for not putting forward his case in relation to the alleged failure on the part of his outside-counsel to make it to Rawalpindi on 2-11-1999. Even otherwise, the cause is pending in the High Court for the last about a decade and the petitioner may, if so advised, make an appropriate move for expeditious/early disposal of the matter by the High Court.

5. With the above observation, the instant petition is dismissed and leave refused. Q. M. H. /M. A. K./K-4/S Petition dismissed.