MUHAMMAD IDREES vs Mst. SHAMIM AKIITAR

ORDER

' KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about a shop bearing property No, S-90-R- 40-B situated in Urdu Bazar, Lahore. Mst.. Shamim Akhtar (hereinafter called the landlady) on 1-11- 1978 filed an application for eviction of Muhammad Idrees, petitioner tenant on the ground of default of rent. The application was allowed ex parte on 4-2-1979 on the ex parte statement of the landlady proving default in rent on the part of the petitioner who was consequently directed to vacate the shop above-mentioned.

2. The tenant/petitioner filed an application for setting aside the aforesaid ex parte order on the ground that appearance could not be put in on the date above-mentioned because he had been searching for his counsel and was unable to procure his presence. The explanation tendered was not accepted and it was held that the petitioner had intentionally avoided to appear on 4-2-1979.

The aforesaid application was consequently rejected on 2-4-1979.

3. The petitioner/tenant filed an appeal against the ejectment order dated 4-2-1979 which also met the same fate and was dismissed by the learned Additional District Judge on 6-11-1979.

4. The petitioner then filed a second appeal a being S. A.

0. No, 745 of 1979, which also did got succeed and was dismissed by the High Court on 17-3-1980.

The High Court held that the petitioner had not made out any sufficient cause for his non- appearance on 4-2-1979. However, the High Court went a step further and examining the defence of the petitioner on the point of default in the payment of rent, held that even from the receipts produced in the High Court, the default stood clearly established.

5. The petitioner/tenant has come up in a petition for leave to appeal against the same to this Court.

6. Learned counsel has tried to argue that the default on the part of his client in not appearing in the Court of the learned Rent Controller o 4-2-1979 was not deliberate inasmuch as he had at the relevant time bee looking for his counsel and it was for this reason that in his absence the ex parte ejectment order was passed. The contention has no merit. The learned Rent Controller had kept the matter postponed till 3-00 p. m. It was only towards the fag end of the day when no body appeared for the petition that he was constrained to proceed and pass ex parte ejectment order against him. The matter has been fully thrashed out by the relevant Court below and their findings on the subject are based on proper appreciation of ' evidence and the overall attending circumstances. It is pertinent to mention that throughout the whole of the day i. e. 4-2-1979, not even for once the petitioner put in any appearance and his plea that he was searching for his counsel was rightly disbelieved because had that been so he would have at least put in one appearance before the learned Rent Controller to apprise him that he should be permitted to call his counsel. Here it may be mentioned that we asked the learned counsel as to when was the concerned counsel engaged by the petitioner for appearing in the Court of the learned Rent Controller. The learned counsel at this stage asked the petitioner who was present in person in Court to give the reply. The petitioner submitted that he had engaged the counsel after ex parte order of ejectment had been passed against him. As this answer was inconsistent with the plea taken in the Courts below we again emphasised and asked the petitioner to b certain on the subject. He again insisted that the counsel had been engage by him after the ejectment order had been passed. In this state of affairs the plea taken that the petitioner had gone to search for his counsel falls to the ground. Be that as it may the learned counsel has not able to make out an case for interference in this factual finding of the concerned Courts below.

7. In this view of the matter we do not want to examine the relevant receipts etc. Which were shown to the learned Single Judge in the High Court and which he did not find sufficient to cover or repel the ex parte finding of default based on the statement of the landlady. In our opinion since the petitioner had not made out any case nor shown any sufficient cause for his absence on the relevant date for setting aside the ex parte order of ejectment passed on the statement of the landlady, there was no occasion or justification on the part of the High Court to call for or attend to the receipts which were being shown there for the first time without first crossing the hurdle of the ejectment order, or without the petitioner even having filed any written statement before the learned Rent Controller.

8. The result is that this Petition has no merit and is dismissed.

9. Before parting with this case, we may observe that the petitioner got this case fixed for stay on 26-3-1979, in Chamber before one of us on the plea that certified copy of the High Court judgment was not available and even today the case has been taken up without any such copy having been filed. This excuse has turned out to be incorrect because the landlady produced a certified copy of the order which had been obtained by her on that very day namely 26-3-1979. We must say that we do not approve of this conduct of the petitioner.