1. ' F.R.As. Nos.127 and 128 of 1998 are hereby disposed of by this single common order as respondent/owner of the tenement-shops is the same and question involved in both these appeals is also same.
2. ' Appellant filed the present First Rent Appeal through his advocate under section 21 of the Sindh Rented Premises Ordinance, 1979 against an order dated 25-2-1998 passed by the IInd Rent Controller, Karachi, South, whereby the defence of the appellant was struck off and he was directed to deliver peaceful vacant possession of shop premises to the respondent within a period of sixty days from the date of the order.
3. ' This appeal was first placed before the Court for Katcha Peshi on 29-4-1998 wherein the parties were directed to maintain status quo till the next date and pre-admission notice was issued to the respondent who was put on notice that entire appeal will be heard and disposed of. On 1-6-1998 Mr. Fazal Dad Khan, Advocate appeared for the appellant while Mr. Shamsuddin Khalid, Advocate represented the respondent. Appeal was adjourned by consent of the counsel for the parties. On 20-8-1998 as well as on 26-8-1998 and even on 2-9-1998 Mr. Fazal Dad Khan, Advocate did not appear and no intimation whatsoever was furnished before the Court. Consequently on 2-9-1998 this appeal was dismissed for non- prosecution.
4. ' On 14-10-1998 an application for restoration of the appeal was filed by the appellant himself alongwith his own affidavit, notice of which was issued to the respondent and accordingly the application for restoration of the appeal bearing C.M.A. No,1369 of 1998 was fixed for hearing on 10- 11-1998. The appellant who was present in person stated that he would argue the appeal himself as his advocate who according to appellant was present within Court premises but had refused to appear for him. Even otherwise the appellant in the affidavit in paragraph No,5 stated that:-- "5. That, I am a poor and I cannot engage Advocate for the restoration of appeal hence I will appear in person before this Honourable Court."
5. ' It was under these circumstances that the appellant and Mr. Shamsuddin Khalid appearing for the respondent were heard. The appellant stated that he had no knowledge that his counsel on the date of dismissal of the appeal was not available in Karachi. He has stated that he cannot engage Advocate, therefore, he needs no time for that purpose.
6. ' On the other hand Mr. Shamusddin Khalid learned counsel for the respondent has contended that the application for restoration of the appeal filed by the appellant himself has been filed after 44 days of the dismissal of the appeal and the application has been filed 12 days after the period of limitation. Such a time-barred application without any cogent ground or fair reason for nonappearance would not be a good ground for restoration of the appeal. The learned counsel has contended that the appellant has not filed any application for condonation of delay of twelve days in filing the application for restoration. According to him the appellant is required to account for delay of each day in filing the application. Learned counsel has lastly emphasized that in any case no good ground has been shown by the appellant and in absence of his prayer for condonation of delay this application merits dismissal.
7. ' From the above contentions of the parties I find that the appellant has pressed only one reason of absence of his counsel that he had no knowledge that his counsel was away from Karachi. The learned counsel who according to the appellant was present in Court even on the date of hearing i,e, on 10-11-1998 did not want to appear for the appellant and even did not file his own affidavit.
8. There is nothing on record in support of the appellant's case that the absence of appellant's Advocate or that of the appellant himself was neither deliberate nor wilful.
9. ' It was in the knowledge of the appellant's advocate that this appeal would be heard as a regular hearing case. In case of Niaz Ali v. Faiz Muhammad (NLR 1982 SC 115) it has been held that:- "The fact that he was busy in doing his official duties at Badin is not considered to be any excuse for non-compliance with the directive of the learned Rent Controller. It was for him as opponent and as a litigant to be aware of the orders of the Court and to comply in the best manner possible.
10. The contention that knowledge of the counsel cannot be considered to be knowledge of the appellant with regard to the passing of the tentative rent order is also apparently incorrect. If there is any fault of the counsel or the client, it is for them to settle the matter between themselves but this type of plea cannot be accepted where third parties are concerned."
11. In my humble view the order dated 2-9-1998 of the dismissal of the appeal as well as a time- barred application dated 14-10-1998 are result of carelessness and negligence on the part of both the appellant and his learned counsel. Without touching merits of the appeal I hold that the application for restoration of appeal cannot be allowed.
12. ' Consequently, the appeal stands dismissed and the appellant is directed to hand over peaceful vacant possession of the shop premises to the respondent within a period of sixty days from the date of this order.