MUHAMMAD ISHAQ vs AFZAL ELAHI USMANI
This petition for leave to appeal challenged the High Court's dismissal of a second appeal in default and the subsequent refusal to restore it. The petitioner, a tenant facing ejectment, had contested the service of a notice under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, arguing that the relationship of landlord and tenant was not established. The Rent Controller and the Additional District Judge had concurrently found that the petitioner refused the notice, thereby establishing the tenancy and confirming the ejectment order due to default in rent payment. In the High Court, the appeal was dismissed for non-prosecution. The petitioner sought restoration, citing his counsel's lack of access to the cause list and the counsel's illness, both of which were rejected by the High Court for lack of evidence and negligence. The Supreme Court held that no question of law arose and that the High Court had exercised its discretion neither illegally nor arbitrarily. Consequently, the petition was dismissed, though the petitioner was granted two months to vacate the premises subject to continued rent payments.
- Whether the High Court's refusal to restore an appeal dismissed in default constitutes an illegal or arbitrary exercise of discretion?
- Can a tenant who refuses to accept a notice under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, claim that the relationship of landlord and tenant was not established?
- Is the illness of counsel a sufficient ground for restoration of an appeal dismissed in default if not supported by medical evidence?
- Section 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958
ORDER
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.