' This is an appeal under section. 21 of the Sind Rented Premises Ordinance, 1979. It is directed against the judgment dated May 17, 1980, of Mr. Syed lkram Hussain Jaffery, Civil Judge and Rent Controller, Karachi, whereby he accepted the application filed by the Respondent Azizur Rehman and ordered ejectment of the appellant Badarud-Din from the shop situating in the house No, 36- E/6, Korangi No, 6, Karachi, within ninety days of the order.
2. The facts leading to the appeal are that the shop in dispute was rented out by the Respondent who is owner of the shop to the appellant on monthly rent of Rs,
125. The appellant however made default in payment of rent from December, 1978, and did not take notice of the repeated reminders of the respondent in this connection. However, after a legal notice was served on the appellant he sent the rent for the month of March, 1979, to the respondent by money order and that too at the reduced rate of Rs,
60. The respondent did not accept the money order for obvious reasons.
Ultimately he was constrained to file ejectment application against the appellant on two grounds namely, default in payment of rent arrears and needing the shop for his personal use. The application was resisted by the appellant who filed written statement denying therein that monthly rent was Rs, 125 or that he has been defaulter in payment of rent or that the respondent needed the shop for his own use.
3. The respondent in support of his application filed the requisite affidavits but neither the appellant nor his counsel turned up to cross-examine the respondent and his witnesses. The appellant also did not file any affidavit in support of his allegations nor his counsel appeared for arguments in the case. The learned Controller finally announced the judgment ordering ejectment of the appellant as stated above.
4. Mr. Syed Hamid All Rizvi appearing on behalf of the appellant frankly admitted that the case of the appellant had gone by default partly due to negligence of the appellant himself and partly due to indifference on the part of his counsel. He submitted that appellants is a poor cobbler and an illiterate person. He therefore completely relied on his counsel to pursue his case but unfortunately due to his counsel's apathy the case was decided against him. He further submitted that during the crucial period when the case was fixed for cross-examination of the respondent and his witnesses and for producing the evidence of the appellant and finally for arguments, the appellant was .Bedridden as he was suffering from Asthma and as per medical advice he was taking bed- rest. This period extended from 10-4-1980 to 18-5-1980. In support of his arguments he has referred to the medical certificate that has been produced by the appellant in this Court. He has also placed reliance upon the Supreme Court authority reported as PLD 1965 SC 669 to support his argument that negligence of the council should not be allowed to penalize the party.
5. On the other hand Mr. Iftikhar Javaid, learned counsel for the respondent contended that the appellant was represented by two counsels in the lower Court. Mr. Nawab Khan, Advocate having filed power on his behalf on 11-4-1979 and Mr. Tariq Ali, Advocate having filed power on 10-11-1979.
According to the learned counsel, neither of these advocates withdrew his power until the conclusion of the case. He further submitted that the case was decided on merits and not ex parte as has been argued by the learned counsel for the appellant. Drawing my attention to paragraphs 4 and 5 of the affidavit filed by the appellant in the lower Court appearing on page 55 of the lower Court's record, Mr. Javaid pointed out that the stand taken in these paragraphs was obviously inconsistent with that taken by the appellant in paragraph 14 of his appeal. He further argued that both the appellant and his counsel had remained absent on seven consecutive dates. In the opinion of the learned counsel the medical certificate produced by the appellant in this Court is of no help to him as it obviously afterthought and not indicating the disease of the nature preventing the appellant from physical movements. Furthermore the certificate, he contended, is from a doctor practicing at Ibrahim Hyderi which is 10-14 miles away from Korangi where the residence of the appellant situates. His further contention was that no explanation from both the counsel of the appellant has been brought on record to show why they were absent in the lower Court on the dates when the case had proceeded. The learned counsel for the respondent has. Cited two authorities, PLD 1966 Lah. 567 and 1974 SCMR 162 in support of his arguments. Finally he submitted that the evidence adduced by the respondent in support of his case has gone unchallenged and therefore the learned Controller was right in accepting the application on merits.
6. In order to appreciate if the appellant and his counsel had been negligent in pursuing the case it may be useful to reproduce the relevant portion of the impugned judgment which reads as under :- "The appellant in view of the New Sind Rented Premises Ordinance, 1979, has filed his affidavit in evidence on 16-4-1980 and the matter was fixed for cross-examination on 19.4-1980. The applicant for cross-examination and his learned counsel were present on 19-4.1980, but the opponent and his learned counsel were called absent. The opponent and his learned counsel did not send any intimation too on this date. But to meet the ends of justice, one chance was provided by this Court for the opponent and his learned counsel to appear and cross-examine the applicant, if so desired.
Therefore the matter was again fixed on 24-4-80. On this date also neither the opponent nor his learned counsel appeared to cross-examine the applicant though he was present to go through the test of cross-examination. No intimation on this date was too sent by the opponent's side to the Court. The opponent's side was therefore closed for the purpose of his cross-examination by the opponent. Then the matter was fixed for the evidence of the opponent in rebuttal and to prove his own allegations of his written statement on 5-5-1980. On this date of hearing too the opponent and his learned counsel went about without filing any affidavit in evidence and without any intimation to the Court. Therefore, the side of the opponent was closed on this date and the case was fixed on 11-5-1980 for final arguments. On 11-5-1980, also the opponent and his learned counsel were called absent. No intimation was sent by the opponents.
"Therefore the final arguments of the applicant's counsel were heard and then this matter has come up for orders today."
7. The learned counsel for the appellant frankly conceded that repeated opportunities were no doubt given to the appellant and his counsel but unfortunately none was availed of. He, however, argued that it was the counsel to blame and not the appellant for all this negligence. As for the appellant, he submitted that he was ill and therefore could not pursue the case. In support of this argument he referred to the medical certificate that appellant has produced in this Court. I have given due consideration to the certificate. I agree with learned counsel for the respondent that the certificate is afterthought. It was issued on 18-5-1980 by which date the whole show was over. The impugned judgment was announced on '17th May, 1980, i. e. One day before the issuance of the certificate. Obviously to cover the period of the negligence as pointed out in the impugned judgment the appellant has managed to obtain the medical certificate. Furthermore it has been granted by the doctor who admittedly lives 12-14 miles away from the residence of the appellant. If the appellant was really ill during the relevant period he should have taken care to produce the medical certificate in the lower Court praying for adjournment of the case on the strength of such certificate. But no such step was taken by the appellant at the relevant time. The medical certificate does not disclose any such disease which prevented the appellant from moving about.
By producing the certificate the appellant clearly shows that he was conscious of the fact that the case had to proceed. He could have taken necessary steps to ensure that his case did not go by default. Thus the certificate is of no help to the appellant. I have no doubt in my mind that both appellant and his counsel had been negligent in pursuing the case. Their absence on A the material dates being without any cogent reason was obviously willful.
' Apart from above there is absolutely no explanation as to absence of the opponent's two counsel on the dates in question. In absence of such explanation the two authorities cited by the learned counsel for the respondent support his viewpoint. In Lahore case reported as PLD 1966 (WP) Lah.
567 it was held that in order to explain that there was sufficient cause for the absence, the explanation should be that of the party concerned and also of the advocates if they are more than one. In the instant case only the party concerned, namely, the appellant has come out with explanation which too, as pointed out above, is unacceptable. In the case reported as 1974 SCMR 162 the argument put forth before the Court was that the dismissal of the appeal for default was due to the negligence of the learned counsel and not due to any negligence on his part and therefore the restoration should have been allowed. The learned Supreme Court held :- "The contention is without any force. The mere fact that the litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in the sense of his responsibility to the Court, it is he who should suffer and not the other side."
8. In view of these authorities the arguments of the learned counsel for the respondent are unexceptional that owing to indifference on the part of the counsel or the appellant it is the appellant who should suffer and not the respondent. In the instant case it is not only appellant's counsel but appellant himself who shared the negligent shown in pursuing the case.
9. For above reasons I see no justification to interfere with the order of the learned Controller which is well-reasoned. It does not only show how the appellant and his counsel have been negligent in conducting their case but has also disposed the case on merits. As a result the appeal is dismissed with costs.