' SHAFI-UR-REHMAN, J.-The petitioner, a tenant, seeks special leave to appeal against an order of the Lahore High Court, Lahore, dated 26-9-1978, refusing the restoration of a second appeal against an order of eviction which was dismissed in default on an earlier date 1. e. 16-9-1978.
2. The respondent-landlord sought the eviction of the petitioner from a shop for its reconstruction.
The Rent Controller dismissed the application on 13-3-1977. The Addl. District Judge on appeal directed the ejectment of the petitioner giving him a month's time to vacate the shop. The petitioner filed a second appeal. It was listed for hearing in the High Court on 16-9-1978. The matter was called before interval but none appeared and it was put off till after interval. Again it was called at 12-35 noon and none appeared. An ing the matter for non-prosecution was, therefore, passed. On 21-9-1978 an application was moved seeking restoration of the second appeal which was heard on 26-9-1978 and rejected. Hence this petition.
3. The explanation given by the petitioner for his failure to prosecute the matter on 16-9-78 turned out to be that the counsel engaged in the case had gone abroad after making arrangement for the prosecution of the matter. It was the clerk of the counsel who omitted to note the fixation of the second appeal in the cause list of the day and could not instruct the counsel with whom an arrangement had been made for prosecuting the matter, The petitioner himself being a resident of Gujranwala could not be present. None therefore appeared and the dismissal of the appeal on failure to prosecute it was ordered.
4. It appears that the only cause given out by the petitioner for not prosecuting the case was the failure of the clerk of the counsel to notice the case in the cause list in which it found a place. This ground was not considered by the learned Judge in the High Court sufficient in the circumstances of this case for allowing the indulgence of restoration of the second appeal. We do not find that in drawing such an inference any illegality has been committed or that the discretion has been exercised in a manner opposed to accepted principles of justice and equity. We are also informed by the petitioner that he had handed over the possession of the shop in execution of the decree of ejectment about a year back. In the circumstances, we do not find any merit in the petition which is dismissed. Petition dionioed