1. DORABPATEL, J.--The appellants are the tenants of a shop in Anarkah, Lahore, which is owned by the respondent. In the events that happened, the respondent obtained an order for the eviction of the appellants from his shop from the Court of Rent Controller, Lahore, therefore, the appellants had challenged their eviction in an appeal in the District Court, Lahore. But, as this appeal was dismissed on 22-1-1977, they filed a second appeal in the Lahore High Court. This appeal ryas admitted on 18-2-1977 and the appellants also obtained an interim order from the learned Judge protecting their possession pending the hearing of their appeal. Therefore, they should have been vigilant in the prosecution of their appeal. But, when the appeal came up for hearing on 16---3- 1977, neither they nor their learned counsel were present, therefore, the appeal was adjourned to 2- 10-1977. The appeal appears to have been called at 9-30 on this date, but as neither the appellants nor their learned counsel were present, Zullah, J., directed that the appeal should be called again "after the interval". The appeal, therefore, came up for hearing again but as no one was present on behalf of the appellants and as the Court had already granted the appellants indulgence on 16-5- 1977, Zullah, J., dismissed the appeal for non-pro--secution.
2. The appellant then filed an application under section 151 read with Order XLI, rule 9 of the Civil Procedure Code for the restoration of their appeal. They, however, did not submit any explanation whatsoever or their own absence on 2-10-1977. Instead their learned counsel merely attempted to justify his absence when the appeal was called twice before Zullah, J., on 2-10-1977. According to the learned counsel, he had left the previous night :-This village as his wife was ill and had returned to Lahore the next morning and even attended to his professional duties in the Lahore High Court, on 2-10-1977. However, he did not appear before Zullah, J., because he had entrusted to his clerk the responsibility of scrutinising the cause list of the High Court and as his clerk did not inform him on 2-10-1977 that the appeal was fixed for hearing before Zullah, J., he was not present on the two occasions on which his Lordship had called the appeal. The restoration application was opposed by the respondent and it is clear that Zullah, J., who heard the application, was not impressed by the grounds taken in the restoration application. He also noted that the appellants had not even attempted to explain or justify their own absence. Accordingly, on the view taken by this Court in Zulfiqar A.I v. Lal Din and another (1974 SCMR 162he dismissed the restoration application by his order dated 9-10-1977. The appellants then filed a petition for leave in this Court and leave was granted on 15-2-1978. The appeal then came up for hearing before us on 10-6-1979, but as in the High Court the learned counsel for the appellants was not present, although he had been served with the notice of the appeal, therefore, we declined the request made by the learned Advocate- on-Record for the adjournment of the appellant dismissed it. The appellants then filed an application for the restoration of their appeal and as Maulvi Sirajul Haq did not oppose the application, we restored the appeal and we have heard it with the assistance of the learned counsel.
3. Mr. Farooq submitted that Zullah, J., had penalised the appellants for the failure of their learned counsel to be present on 2-10-1977. The sub--mission is not correct. Zullah, J., dismissed the restoration application of the appellants by his order dated 9-10-1977 not merely because the appellants were absent but also because of the previous history of the case. The appellants had, as we pointed out, obtained a stay order to protect their possession, and, having obtained that stay order, they as. Well as their learned counsel failed to appear when the appeal came up or hearing on 16-5-1977. Yet the learned Judge did not dismiss the appeal or recall the stay order. In these circumstances. It was incumbent on the appellants and their learned counsel to be vigilant about the next date in the appeal, and as they were obviously not vigilant, the learned Judge rightly dismissed their restoration application, and his order is fully supported by the view taken by this Court in Zulfiqar All's case.
4. Mr. Farooq relied on this Court's judgment reported in Seth Shivrattan G. Mohatta and another v.
5. Messrs Mohammadi Steamship Co. Ltd. (PLD 1965 SC 669but as was examined by us in Muhammad Munawar v. Ch. Khurshid Alam (1978 SCMR 266), Mohatta's case turned on its own peculiar facts. There was, as in the instant case, a history of previous default by the respondent/plaintiff and so when its suit was dismissed on account of its Advocate's absence on 1- 5-1957, the learned Judge refused to restore the suit to regular hearing. But the respondent challenged the dismissal of his restoration application in an appeal before a Letters Patent Bench and unlike the instant case this appeal was allowed. The appellant was aggrieved by the order of the appellate Bench restoring the respondent's suit to regular hearing, therefore, it filed an appeal in this Court. But, as this appeal was dismissed, the learned counsel thought that this judgment supported him in his submission that a litigant should not suffer on account of his learned counsel's negligence and/or failure to attend the Court.
6. The submission is totally misconceived, because the absence of the respondent and his learned counsel in the case cited on 1-5-1957 was not due to any negligence whatever on their part. They were absent, because the High Court had declared a holiday on 1-5-1975 for Eid, but as the Eid moon was not sighted the Court remained opened. But, as the respondent and his learned counsel had no means of knowing this, clearly, there was no negligence whatsoever on their part. But as in the instant case, the appellants and their learned counsel were negligent, the judgment has no relevance whatsoever to the instant case.
7. Learned counsel also relied on this Court's ,judgment in Abdul Hamid Ismail v. Messrs Abdul Rehman Abdul Ghani PLD 1959 Kar. 376in support of the submission that a litigant should not suffer on account of his Advocate's negligence, but the facts in Ismail's case were unusual. It teas proved that there was an agreement between the Advocates of the parties to inform each other of dates in the suit. And, the explanation of the appellant's Advocate for his failure to be present when his suit as dismissed was that the learned Advocate for the respondent had in breach of his agreement failed to inform him of the date. As this explanation was accepted the Division Bench restored the appellant's suit. The case turned on its peculiar facts and does not lend any support to the submission that a litigant should not suffer on account of his Advocate's negligence.
8. Mr. Farooq also cited some other judgments, but they are distinguishable on the facts and as the appeal is against a discretionary order, the only question before us is whether it can be contended that Zullah, J., exercised his discretion illegally or unreasonably. We do not think so and in any case the appellants had failed miserably to prove that the learned Judge had exercised his discretion illegally or unreasonably. The appeal is without merit and is dismissed. But, we give the appellants two months' time to hand over vacant possession of the demised premises to the respondent provided they continue to pay monthly rent for this period.