1989 PLP 3431 (MLD)

This appeal is directed against the order passed by the learned Controller whereby application under Order 9 Rule 13 C.P.C. filed by the appellants was dismissed and the order of ejectment passed earlier was confirmed. In the application under Order 9 Rules 13 C.P.C. the facts leading to the order of ejectment passed in this case are that the appellants had engaged a counsel and they were required to attend the case only when necessary for evidence and to be called by their Advocate. The appellants remitted rent for the month of January, 1988 which was accepted by the respondents. By letter dated 24-1-1988 the respondents refunded the rent for 3 days as the appellants were to vacate the premises by 28-1-1988 as ordered by the Controller. The appellants then made inquiries and came to know on 2-2-1988 that on 29-11-1987 the Controller had passed the order of ejectment. 1t was further stated that in October, 1987 their Advocate had gone out of station and time for filing appellant's affidavit of evidence was allowed upto 2-11-1987. On that date as their Advocate was busy in the High Court, he did not attend the case. The junior counsel and the Court clerk attended the case on 2-11-1987 and they were told by the reader that the case has been dismissed. On 24-9-1987 the appellants had not attended the Court and were not aware of the proceedings. The respondents filed and denied that the appellant's counsel and his Court clerk attended the case on 2-11-1987 or were informed that the case has been dismissed. In fact it was fixed for filing appellant's affidavit of evidence and case could not have been dismissed. On that date as no affidavit had been filed, the appellant's side was closed and case was fixed for arguments on 16-11-1987. It has further been stated that it was the duty of the appellants to attend the Court who have been negligent in prosecuting the case. By the impugned order, the appellant's application dated 4-2-1988 was dismissed. Mr. A. R. Akhtar, the learned counsel for the appellants has contended that it is a case of error of judgment and misinformation on the part of the Advocate for the appellants and for this mistake the appellants should not suffer. A close analysis of the facts on record will show that on 2-11-1987 when the case was fixed for hearing the junior counsel and the clerk are alleged to have appeared in the Court. Their affidavits are not in the file of the rent case but Mr. A. Akhtar informs that those affidavits were filed in support of application under section 21 rule 26 C.P.C. in execution proceeding. He has filed copy of these affidavits in order to substantiate his contention. It will be pertinent to reproduce relevant portions of these affidavits which read as follows: - The Court Clerk has stated as follows:- `That I have been attending to this case and on 2-11-1987 alongwith Mr. Asif Advocate came to this Court. We made enquiries from the Reader and he told us that this case has been dismissed for non- prosecution. On hearing this, we did not attend to this case as we were acting for the Opponent we did worry much and also did not check the Court Diary for several days.' The junior counsel has stated as follows:- 'That on 2-11-1987 1 came to this Hon'ble Court and made enquiries about this Rent Case. The Reader told me that the case has been dismissed for default or to that effect. I did not make any further enquiries in the case nor could report this fact to my senior Counsel. I was not well aware of the purpose for which the case was fixed on 2-11 1987. I came to know about the ex parte judgment through HBL, letter dated 31-1-1988." These are the only two relevant paragraphs from which the happening on the relevant date can be ascertained. It would be proper to first examine the facts on record and in that background appreciate the allegations in the affidavits. From the order sheet it is clear that on 24-9-1987 when application for adjournment was filed by the Court clerk the case was fixed at 1 p.m. for cross-examination of the respondents witness who was present. The appellants were absent. At 1.20 p.m. as the appellants and their Advocate were not present the cross-examination of the respondent's witness was closed and case was adjourned to 11-10-1987 for filing affidavit of evidence of the appellants. On that date the advocate for the appellants filed application for adjournment and the case was put off to 2-11-1987 for the same purpose. It seems that no step was taken for opening the respondents side. On 2-11-1987 as the appellants and their Advocate did not appear nor filed affidavit for evidence, the appellants side was closed and case was fixed on 16-11-1987 for arguments. Again on 16-11-1987 the appellants and their Advocate were not present. After hearing the arguments the case was adjourned to 29-11-1987 for judgment. which was accordingly announced. The appellants filed application under Order 9 Rule 13 1 C.P.C on 4-2-1988 which was dismissed. A reading of the afore stated paragraphs give the impression that the l averments are sketchy and superficial and do not inspire confidence. On 2-11-1987 the case was fixed for tiling affidavit of evidence of the appellants therefore, the question of dismissal of the case did not arise as the respondents had examined their witnesses. The affidavits do not state at what time they attended the case. After receiving the information no further inquiries were made and the matter was left. The learned counsel has not been able to point out whether after alleged order of dismissal of the case the appellants had applied for certified copy of the order or merely on alleged information from the Readers they remained silent more than two months and had not taken care to ascertain I the correct position. It is strange that during 24-9-1987 till the end of January, 1988 the appellants did not even inquire about the progress of the matter. Even if the appellants were not required to attend the Court, which does not seem to be correct, they should have been vigilant to pursue the matter and inquire about it from time to time from their Advocate. In appeals and revisions it is possible to say that the parties are not required to attend the Court but in suits and rent cases as evidence has to be recorded their presence is necessary particularly when the case is fixed for filing affidavit of evidence. The conduct of the appellants has been negligent. Mr. A. R. Akhtar the learned counsel for the appellants further contended that in the impugned order the reasons for rejecting the application and D contentions of the appellants have not been stated and only summary order has been passed. I have perused the order and find that it does not suffer from any ambiguity. Although the order does not enter in minute details it does no manifest injustice. For these reasons the appeal is dismissed, in limine. M.Y.H./H-158/K Appeal dismissed.