P L D 2001 Supreme Court 372 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.‑‑‑This appeal with the leave of the Court is directed against the order dated 21‑7‑1997 of the Lahore High Court, Lahore, dismissing the appeal in lirmne.

2. Brief facts forming the background in this appeal are that on 1‑6‑1995 the respondent filed a petition for the eviction of the appellant of Shop No.3 Property No.3‑III‑3‑S=12, Kabeer Street, Urdu Bazar, Lahore. which is in occupation of the appellant on the monthly rent of Rs.2,

200. The petition for eviction proceeded on the ground that the respondent‑landlady require the demised shop in good faith for the personal use of her husband. On 16‑7‑1995, the appellant appeared in person for the first time and sought adjournment to file the reply. The petition was accordingly adjourned to 31‑7‑1995. On the last‑mentioned date, the reply was not filed and the case was adjourned to 10‑9‑1995 for the same purpose. Again the adjournment was sought and the case was posted to 21‑9‑1995. On the lest mentioned date, again the power of attorney of the counsel for the appellant was filed and the case was adjourned to 27‑9‑1995 for filing the replication. On this date, the learned Rent Controller passed the following order:‑‑

3. On 1‑10‑1995, the. petition was dismissed in the following terms:‑‑

4. The appellant filed am appeal which too was dismissed and the findings of the learned Rent Controller were upheld. 5. ‑The appellant then filed S.A.O. No.85 of 1.997 before the learned Lahore High Court, wherein the learned counsel for the appellant contended that the two lines' order of the learned Rent Controller dated 1‑10‑1995 was not sustainable as the medical certificate of the learned counsel for the appellant‑tenant had been produced on 1‑10‑1995 but still the case was processed further at about 10‑00 a.m. and, therefore, the adjournment sought by the learned counsel for the appellant ought to have been granted. Reliance was placed in support of the plea of the appellant on Shafi Muhammad v. Muzaffar‑ud‑Din and others 1990 SCMR

530. The learned Judge in Chambers of, the High Court, however, dismissed this S.A.O. on the following reasoning:‑‑ "The precedent case is of no help to the appellant for the simple reason that on a date of hearing earlier, i.e. on 27‑9‑1995, the adjournment/postponement for the submission of written statement/reply to the ejectment application on. 1‑10‑1995 was clapped with the following sentence:‑‑ Even the reliance placed on the Medical Certificate the then learned counsel for the appellant‑tenant is of no avail to the appellant. Such an effort was neither reflected in the order dated 1‑10‑1995 nor it is the case of the appellant himself that the plea to that effect was raised on the date or even on 27‑6‑1996, before the learned Appellate Bench. Not finding any force in this appeal, the same is dismissed in limine. "

6. Leave to appeal was granted to consider whether in the circumstances of this case, the absence of the learned counsel for the appellant on the ground of his illness duly supported by the medical certificate issued by his Physician and his personal affidavit has been rightly brushed aside by the learned Rent Controller in his impugned order without considering the request of the learned counsel for adjournment, had unjustifiably struck off the appellant's defence without providing him an opportunity to file written statement within Court hours on that day and further that the impugned order has not been justifiably upheld by the learned First Appellate Court as well as the learned High Court.

7. Learned counsel for the parties also addressed the arguments on merits of the case which need not be reproduced at this juncture.

8. Mr. Muhammad Shahzad Shaukat, learned counsel appearing on behalf of the appellant, contended that the learned counsel for the appellant engaged in the Court of learned Rent Controller had fallen ill and had sought adjournment on very genuine and well‑founded ground of his indisposition duly supported not only by an affidavit sworn in by the learned counsel himself but also by the medical certificate which should have found favour with the learned Rent Controller, the learned Additional District Judge and also the learned High Court but to the misfortunate of the appellant, the plea was not entertained.

9. Ch. Arshad Mahmood, learned A.S.C. appearing on behalf of the respondent has defended the impugned order on the reasoning which weighed with the learned two Courts below and the learned Single Judge in Chambers of the High Court. ,

10. We have noticed the delaying tactics of the appellant before the learned Rent Controller as indicated earlier. Nonetheless point worthy of note is that when the counsel was engaged, he had sought adjournment on the ground of his illness duly supported by not only the medical certificate issued by a competent doctor but also the personal affidavit of the learned counsel. We acknowledge the deteriorating unethical professional practices particularly by the medical profession wherein certificates of the nature produced by the learned counsel in support of his plea have become saleable commodity. Nonetheless there can be few, honourable exceptions on this score and in the instant case it. is an exception to the unethical conduct and malpractices that have crept in the various professions.

11. After considering the contentions raised by the learned counsel for the parties and perusal of the record .and the ratio in the case of Shafi Muhammad v. Muzaffar‑ud‑Din and others 1990 SCMR 530 of this Court. we are inclined to accept this appeal, set aside the impugned orders passed by the two Courts below and upheld by the learned Judge in the Chambers of the High Court through the impugned judgment and remand the case to the learned Rent Controller to decide it afresh on the merits. Costs shall follow the event. Q.M.H./M.A.K:/M‑214/S Appeal allowed.