1. ' ABDUL KADIR SHAIKH, J.--This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dated 8-12-1987 by which an appeal filed by respondent was allowed with the result that the order of the Rent Controller dated 10-10-1984 was set aside and the case between the parties was remanded to the Rent Controller with the direction that the ejectment application filed by respondent should be heard and decided at the stage at which it was dismissed.
2. ' Respondent filed the ejectment application against petitioner on 18-1-1977 and when it came up for hearing on 4-8-1983, it was adjourned at respondent's request on the ground that "the management of the applicant (respondent) has changed hand and because of which the witness who has filed his affidavit could not be present today. Otherwise also it is raining since morning and it has become difficult to get transport and attend the Court". When the case came up for hearing again on 10-11-1983 a request from respondent's counsel for adjournment was received on the ground that he was unable to attend due to illness. Learned Rent Controller refused to grant the request and dismissed the ejectment application. Respondent filed an application for setting aside the order of dismissal but the request was rejected by the Rent Controller by the order dated 10-10- 1984, for the reasons which may be usefully reproduced here-under:-- "This application is submitted for restoration of this case which was dismissed on 10-11-1983 on the ground that Abu Bakar the witness whose affidavit is on record resigned w.e.f, 2-9-1980 and the learned Advocate for the applicant who was representing the applicant on 10-11-1983 has not intimated the applicants about the date of hearing, therefore, nobody appeared from the side of the applicant. The other ground is that the adjournment application submitted by Mr. Mukri, Advocate for the applicant on 10-11-1983 was dismissed, though the learned Advocate for the applicant was not feeling well. This is admitted position that the adjournment application was sent by one of the Advocate claiming to be the Advocate for the applicant, but not by Mr. Mukri who is Advocate for the applicant, on the ground of his illness. But the record shows that the applicant's witness Abu Bakar was presumed to be present for cross-examination as the matter was fixed for cross-examination of the applicant's witness. The adjournment application was dismissed on the ground that the applicant's witness was not present. The other contention of the applicant is that Abu Bakar witness of the applicant resigned from service w.e.f, 2-9-1980 but there is nothing on record to show that this fact came in the notice of the Court. I therefore in these circumstances do not find any ground for allowing this application. Hence the same is dismissed."
3. ' It was this order that was challenged by the respondent in an appeal in the High Court which was allowed as stated earlier. The reasons which prevailed with the learned Judge in the High Court were as under:-- "I have considered the submission of both the counsel and have come to the conclusion that in the interest of justice the rent case to be decided on merits and law. The non-appearance of the counsel or his witness though not appreciated but normally the case is restored in the circumstances. The order of the Rent Controller is set aside and appellant is directed to produce the witnesses before the Rent Controller on 20-1-1988, for the purpose of cross-examination. The learned Advocate appearing for the appellant had agreed and stated that he will produce the witness for the purpose of cross-examination. In case, witness is not produced, the Rent Controller should decide the case according to law.
4. ' With the above observations, the rent case which was dismissed is restored and should proceed from the stage at which the Rent Controller dismissed the same."
5. ' Petitioner now seeks leave to appeal from the judgment of the High Court, and Mr. KA. Ghani, learned Advocate-on-Record appearing in support of the petition submits that the impugned order of the learned Judge in the High Court is based on misreading of the record and is founded upon the consideration extraneous to the principles of law governing restoration of a case dismissed for default and non-prosecution.
6. There is no doubt that the reasons given by the learned Judge in the High Court for setting aside the order of the Rent Controller are extremely sketchy, but after having gone through the record of the case, we find that the order of the High Court can very well be supported on the facts apparent on the record which must have obviously been perused by the learned Judge in the High Court. It may be mentioned in this behalf that on 10-11-1983 when the case came up for hearing an application of respondent's counsel for adjournment was presented on the ground that he was unable to attend due to illness. Learned Judge, however, rejected the request for adjournment solely for the reason that the respondent's witness who was to be cross-examined on that day was not present. Obviously, the learned Rent Controller did not even care to notice that the witness had not been summoned for the hearing fixed on that day through a process of the Court, nor was there any undertaking on behalf of the respondent to produce him, on that day. Learned Rent Controller also did not disbelieve the assertion that respondent's counsel was ill and could not attend. Even in the subsequent order passed by him on 10-10-1984 by which he dismissed respondent's application for restoration of the ejectment application, learned Rent Controller committed the gross error by assuming that the witness was presumed to be present for cross- examination as the matter was fixed for cross-examination of the applicant's witness". In any case, if learned Rent Controller found fault in the absence of respondent's witness, the best he could do in the circumstances was to close respondent-side of the case, and not dismiss the ejectment application itself.
7. On these facts and circumstances the impugned judgment of the learned Judge in the High Court is in full accord with justice and equity, and we will not like to exercise the discretionary jurisdiction of this Court and intefere in the case.
8. ' For these reasons, the petition is dismissed.