ZAFFAR HUSSAIN MIRZA, J.--This petition is barred by 3 days, but the petitioner has prayed for condonation of delay on the ground that he was not aware of the fact that the certified copy of the impugned judgment was made ready for delivering. We, therefore, condone the delay subject to all just exceptions at the hearing.
2. The petitioner had filed first appeal against the order of eviction passed against him by the Rent Controller, in the High Court of Sind, at Karachi. The hearing of the appeal was fixed on 2-9-1984, but on that date an application for adjournment was submitted by Mr. A.Q. Malik, Advocate, holding brief for Mr. Zahoor Ali Chishti, Advocate, for the appellant, on the ground that the latter was sick and unable to attend the Court. This application was opposed by the opposite side. As a result the learned Single Judge dismissed the application and also dismissed the appeal for non- prosecution, owing to the absence of the appellant and his counsel. On 12-9-1984, the Advocate for the appellant moved an application under Order XLI, rule 19, C.P.C. For restoration of the appeal on the ground that the Advocate was suffering from fever and was prevented from appearing in Court on that account. Reliance was placed on a medical certificate issued by doctor. The learned Judge in Chambers was not persuaded to consider the ground urged in support of the application to be sufficient and with reference to previous occasions on which adjournment was sought on the ground of illness of the counsel, dismissed the application vide his order, dated 23-12-1984.
3. After hearing the learned counsel in support of this petition for leave to appeal from the order of the High Court, we feel that the legality of the order dismissing the appeal for non-appearance requires to be considered in view of the fact that a counsel was holding brief for the Advocate for appellant and was present when the said order was passed. The further question that deserves examination is whether in the face of unrebutted evidence of illness of the learned counsel, the learned Judge in Chambers was justified in dismissing the application) for restoration by referring to previous occasions when adjournment) was sought on the same ground.
4. These questions require to be examined and we, therefore, grant leave to appeal. Security for costs Rs.500. The appeal shall be made ready on the present record but the parties will be at liberty to file additional documents if any. In case the petitioner is still in possession, he shall not be evicted in execution of the order of ejectment passed against him. The appeal, however, be fixed for disposal during the session of this Court at Karachi in August, 1985.