1977 PLP 487 (SCMR)

Nemo for Respondent. Date of hearing : 15th September 1977. NASIM HASAN SHAH, J.‑This is a petition for leave to appeal against the order of the High Court, Lahore, passed on 4-4‑1975, whereby the second appeal of the petitioner against his ejectment was dismissed in default as also against the order dated 13‑5‑1975, whereby his application for restoration of the appeal dismissed in default was rejected.

2. The relevant facts are that the petitioner was occupying a garage which was transferred to the respondent and a P. T. O. dated 29‑10‑1960 issued in his favour. The respondent allegedly issued a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to the petitioner, but the latter did not pay or tender any rent whereupon the respondent moved the Rent Controller for the ejectment of the petitioner. The petitioner took up the plea that no notice under section 30 was served upon him, but this plea was not accepted by the Rent Controller who held that the petitioner bad "refused" to accept notice and service of notice was complete in the eye of law, with the result that the relationship of landlord and tenant had come into existence, and as the petitioner had not paid any rent he was a defaulter. Accordingly an order for ejectment was pissed against him.

3. The petitioner filed an appeal before the Additional District Judge, but he agreed with the finding of the Rent Controller and dismissed the appeal. The petitioner went up to the High Court in second appeal and the case came up for hearing on 4‑4‑1975, but no one appeared before the Court. Hence the appeal was dismissed in default. The petitioner moved an application for setting aside the above order and for restoration of the appeal to its original number on the following two grounds; (a) that the Petitioner's counsel was not a member of the High Court Bar Association could not get the cause list and (b) that the petitioner's counsel was ill on 4‑4‑1975. The learned Judge in the High Court found no merit in these submissions. He observed that if the counsel was not a member of the Bar, it was all the more necessary for him to be vigilant and to make arrangements for seeing the cause list hung in the High Court. As for the illness of the counsel, it was observed that this was not proved by any medical certificate. However, the main reason for dismissing the application was that this was a case of negligence as no arrangements were made by the counsel far seeing the list in the High Court.

4. In support of this petition for leave to appeal the same submissions, as were made in the High Court, have been repeated before us. We find that no question of law arises for consideration and the petitioner is seeking interference in a matter which pertained to the field of the discretion of the High Court. We do not consider that the High Court has exercised its discretion illegal or arbitrarily. Hence no ground for interference exists and we dismiss this petition.

5. However, two months are allowed to the petitioner to vacate the premises on condition that he continues to pay or tender rent before the 15th day of each calendar month. Petition dismissed.