1. ' ZIA PERWEZ, J.--- Petitioner is aggrieved by order, dated 28-2-2005 passed by learned IV- Additional District Judge, Karachi Central in F.R.A. No,201 of 2001 dismissing the application for restoration of the appeal filed by the petitioner under Order XLI, rule 19, C.P.C. Read with section 21 of Sindh Rented Premises Ordinance, 1979.
2. Petitioner preferred an appeal against the order of ejectment before this High Court in March, 2000. Thereafter the rent appeal was transferred to IV-Additional District Judge, Karachi Central where it was dismissed for non-prosecution on 7-2-2002. However, the appeal was restored vide order, dated 9-4-2003. Adjournments were sought by the appellant/petitioner on 23-4-2003, 15-5- 2003, 16-5-2003, 29-7-2003, 2-8-2003, 21-8-20Q3, 2-9-2003, 11-9-2003, 25-9-2003, 30-9-2003, 9- 10-2003, 11-10-1003, 23-10-2003 and 30-10-2003. Thereafter on 17-11-2003 an application under section 20(c) of ,Sindh Rented Premises Ordinance, 1979 was moved and followed by requests for adjournments. Ultimately a last chance was allowed for hearing of the main appeal as well as application moved under section 20(c) of Sindh Rented Premises Ordinance, 1979 on 6-7-2004.
2. Even after allowing the last chance when the appeal came up for hearing a further application for adjournment was moved but the learned Appellate Court observing the conduct and number of opportunities extended to the appellant, the adjournment was refused and the appeal was dismissed along with pending application and the application seeking restoration of the appeal under Order XLI, rule 19, C.P.C. Read with section 21 of the Sindh Rented Premises Ordinance, 1979 was also dismissed vide impugned order.
3. ' Notice of this petition was issued to the other side. Both the learned counsel have advanced their detailed arguments and cited case-law in support of their respective contentions.
4. ' Mr. Zahid Marghoob, learned counsel for the petitioner, has contended that the learned Appellate Court acted illegally by dismissing the appeal and not allowing subsequent restoration as on 6-7- 2004 the counsel for the appellant was unable to attend due to his illness. The respondent was also not present. The application for restoration was supported by the personal affidavit of the appellant to the effect that his counsel was not well, therefore, there was no need to file affidavit of the Advocate. The case-law favours disposal of cases on merits rather than on technicalities.
5. Learned Appellate Court acted in a harsh manner by dismissing both the pending application under section 20(c) of Sindh Rented Premises Ordinance, 1979 as well as main appeal. According to him only dismissal of the pending application was called for under the circumstances and not the main appeal as such the impugned order is opposed to the established principles of natural justice. Referring to the provisions of Order XLI, rule 19, C.P.C. Learned counsel contended that on application moved under said provision, the Court is required to restore the appeal by putting the applicant to terms and not to dismiss the application or deny, readmission of the appeal. In support of his contentions he has placed reliance on the cases of Muhammad Irfan v. Mst, Fatima Saeed 2004 CLD 830, Abdul Aziz Khan v. Noor Muhammad 1985 CLC 583, Sattar Muhammad Raja v.
6. Anwarullah Khan 1985 CLC 1550 and Iqbal Hassan v. Muhammad Anwar 1985 CLC 1957.
7. ' Mr. M.G. Dastagir, learned counsel for the respondent, after referring' to the relevant record, contended that initially the appeal was dismissed for non-prosecution, which by itself constitutes sufficient reason for the petitioner to have remained vigilant. However, instead of proceeding with the appeal after restoration, successive adjournments one after another were sought followed by an application on 17-11-2003 seeking inspection of the property at the belated stage. He further proceeded to argue that in the above manner 15 consecutive adjournments were sought which makes out a case of gross negligence. Learned Appellate Court not only provided sufficient opportunity but also forewarn the petitioner by allowing a last and final chance. The petitioner was represented by more than one Advocate and the other counsel could have advanced arguments in view of last chance, as such, no case of illegality in exercise of jurisdiction calling for interference in exercise of constitutional jurisdiction of this Court is made out. In support of his contention he has placed reliance on the cases of Abdul Rehman v. Farooq 1989 M LD 951 and. Muhammad Ashraf v.
8. Agricultural Development Bank of Pakistan 2000 CLC 1760.
9. ' Petitioner was not only allowed an opportunity after dismissal of his appeal, in fact 15 adjournments were obtained from time to time. The order of dismissal was preceded by an order allowing last and final chance although the Court is not strictly required to allow any such chance.
10. However, this state of affairs shows the indulgence provided to the petitioner but the conduct of the petitioner did not change.
11. ' Law as well as principles of natural justice having the force of law are well-settled and require that a proper and fair opportunity be afforded to the parties to pursue their case. However, this opportunity may not be made an excuse for misuse of the provisions or abuse of the judicial process. In the instant case ample opportunities were afforded to the petitioner to proceed with the appeal on merits but the record reflects gross negligence and abuse of process of Court by seeking successive adjournments. Provisions of Order XLI, 'rule .19 only come into force after it is proved before the Appellate Court that there was sufficient cause for not proceeding with the appeal. Persons concerned claiming to be unwell ought to have filed his personal affidavit duly supported by record of medical treatment to show the bona fides. In the instant case neither affidavit of the counsel has been filed nor any medical certificate to the effect of illness has been filed which gives inference that sufficient compliance of requirements of Order XLI, rule 19, C.P.C. Is not fulfilled.
12. ' The case-law cited by the learned counsel for the petitioner are not attracted to the facts of the present case being the case of gross negligence on the part of the petitioner/appellant. In cases of Iqbal Hassan and Abdul Aziz Khan (supra) learned Appellate Court while dismissing the application for readmission dismissed the appeal on merit, while in the instant case the learned Appellate Court has elaborately discussed the conduct of the petitioner. In cases of Sattar Muhammad Raja and Muhammad Irfan (supra) the side of a party for evidence was closed while in the instant case both the parties have adduced their evidence before the learned Rent Controller and ample opportunity have been afforded.
13. ' For the foregoing reasons no illegal exercise of jurisdiction or violation of law or jurisdiction calling for indulgence in exercise of C constitutional jurisdiction of this Court is made out. Petition is accordingly dismissed in limine along with listed application.
14. ' At this junction learned counsel for the petitioner requests that at least four months time may be granted for vacating the demised premises to which learned counsel for the respondent concedes.
15. Accordingly, petitioner is allowed four months time to vacate the demised premises subject to regular payment of monthly rent. It is also clarified that in case the petitioner fails to deliver vacant possession of the demised premises within the stipulated time, the ejectment will be effected without any further notice to the petitioner.