1. ' This is an application under Order IX, Rule IX, C.P.C., read with section 151, C.P.C., filed on behalf of appellant praying that for the facts and reasons disclosed in the accompanying affidavit order, dated 21-5-1998 be re-called/set aside and the Appeal be restored to the position as it was on the date of its dismissal. In support of the said application the learned Advocate has filed his personal affidavit as well as affidavit of another Advocate namely Mr. Sher Muhammad Zafar. Learned Advocate for the appellant in his affidavit has stated that on 21-5-1998, when appeal was dismissed he remained absent due to his serious illness and appellant could not attend Court as he in connection with his business was out of Karachi. He has also stated that he was suffering from Eczema and as such on 20-5-1998 at about 11-30 p.m, he contacted Mr. Sher Muhammad Zafar, Advocate to hold his brief in the matter on 21-5-1998 and seek adjournment. He has also stated that on 10-6-1998 when he visited Rent Branch in connection with his other matters the concerned clerk informed him that this Rent Appeal was dismissed due to non-prosecution. As such he contacted Mr. Sher Muhammad Zafar, Advocate who informed that he forgot to appear and to hold brief of learned Advocate for the appellant.
2. ' Mr. Sher` Muhammad Zafar, Advocate has also filed his affidavit in support of the submissions of the learned Advocate for the appellant reiterating therein that though he was contacted by the learned Advocate for the. Appellant to hold his brief in the matter but he forgot and did not appear in Court on 21-5-1998.
3. ' The learned Advocate for the responded, though has not filed any counter-affidavit but vehemently opposed the restoration application (being C.M.A. 814 of 1998) on the ground that the learned Advocate for the appellant never pursued the above appeal seriously and has been dragging it with mala fide intentions since 13-8-1995 when pre-admission notice was issued in the matter.. He submitted that this case was fixed for Katcha Peshi on 17-10-1995 when the learned Advocate for the appellant chose to remain absent, however, case was adjourned to a date in office. Again the matter came up for hearing before the Court on 31-10-1995 when the appellant and his counsel remained absent and after second call at 11-20 a.m. On account of their absence above appeal was dismissed for non-prosecution. Thereafter, on 2-11-1995 on behalf of appellant an application under Order IX, Rule 9, read with section 151, C.P.C. (being C.M.A. 1068 of 1995) was filed praying for setting aside the dismissal order, dated 31-10-1995 which was supported with the personal affidavit of the learned Advocate for the appellant and the same came up for hearing before the Court on 8-11-1995 when again the learned Advocate for the appellant remained absent, however, notice of said C.M.A. 1068 of 1995 was ordered to be issued to the respondent. The said C.M.A. 1068 of 1995 again came up for hearing before the Court, on 24-12-1995 when the respondent and her learned Advocate were called absent, therefore, the restoration application (C.M.A. 1068 of 1995) was granted and the earlier order, dated 31-10-1995 was recalled. It is submitted by the learned Advocate for respondent that vide order, dated 4-12-1996 appellant's appeal was admitted for regular hearing with the observation that since it is the case of a widow, therefore, the appeal be fixed for regular hearing within three months. Thereafter, the matter came up for regular hearing before the Court on 24-3-1996 when none appeared for appellant and at the request of Advocate for respondent the hearing was adjourned. The matter again came up for regular hearing on 5-5-1996 when parties and their counsel were called absent and the case was adjourned to a date in office. On 11-8-1996 again appellant and his counsel were called absent though the learned Advocate for respondent was present, however, the case was adjourned. Same was the position on 12-1-1997, when case did not proceed due to absence of Advocate of appellant.
4. Again the matter came up for regular hearing before the Court on 20-10-1997, when only the learned Advocate for respondent was present and none was present for the appellant, therefore. At 1-05 p.m. The appeal was dismissed for non-prosecution.
5. ' It is contended by the learned Advocate for respondent that after dismissal order, dated 20-10- 1997 on behalf of appellant the application, dated 31-1G-1997 under Order IX, Rule 9, C.P.C., read with section 151, C.P.C., (C.M.A. 842 of 1997) was filed in Court praying that the dismissal order, dated 20- 10-1997 be set aside and the appeal be restored to its original position. This application came up for hearing before the Court on 8-12-1997 when the learned Advocate for respondent in view of personal affidavit of learned Advocate for appellant raised no objection to the restoration of the aforementioned appeal to its original number and position but insisted for a fixed date of hearing, and as such the case was adjourned to 15-12-1997, when adjournment was sought by the learned Advocate for the appellant and the case was adjourned to 12-1-1998. The matter came up for regular hearing on 16-3-1998 when Advocate for respondent was present, but none appeared for the appellant, therefore, keeping in view the background of the case appeal was dismissed for non-prosecution. Subsequent to dismissal order, dated 16-3-1998 restoration,. Application, C.M.A.
6. 284 of 1998, was filed by the learned Advocate for the appellant under the provisions of Order IX, Rule 9, C.P.C., notice whereof was ordered to be issued to the respondent. Said C.M,A. 284 of 1998 came up for hearing before the Court on 21-5-1998 when till 12-30 p.m. None appeared for the appellant, therefore, keeping in view the opposition of learned Advocate of respondent C.M.A. 284 of 1998 was dismissed for non-prosecution, hence, the appeal stood dismissed.
7. ' I have heard the learned Advocates of the parties at length and perused the record of the case which goes to prove that the appellant and his learned Advocate have not been diligent in pursuing this appeal and have in fact successfully delayed its adjudication. As per order, dated 4- 2-1996, passed in' the matter, this appeal should have been decided on merit.; in the year 1996; but it was pending decision till 16-3-1998, when it was dismissed for non-prosecution for the third time.
8. On the pleas of personal difficulties of the learned Advocate of appellant two earlier dismissal orders were recalled and appeal restored yet the appellant and his learned advocate failed to be vigilant in pursuing the appeal. They even did not pursue the application for restoration of the earlier restoration application like prudent persons. From the record of the case one can gather nothing but that the intention of the appellant was to delay the adjudication of the matter for one or the other reason by misusing the concession/facility or leniency shown to him by the Court in recalling earlier dismissal orders and restoring the appeal for regular. Hearing. The learned Advocate for appellant in support of the listed application in the first instance had stated that he could not attend the Court on 21-5-1998 due to serious illness and in the second breath he has stated that he was suffering from Eczema, which in no way can be termed to be a serious illness. In case the learned Advocate for the appellant was not keeping good health or had some other problem in conducting the matter then either he should have obtained general adjournment or entrusted the matter to some of his other colleagues, specially when this Court had passed order for fixing the matter for hearing and deciding the matter within a period of three months from 4-2- 1996 on the ground that the respondent is a widow.
9. For the foregoing I have come to the conclusion that the learned Advocate for appellant has failed to show any cogent ground for the grant of listed C.M.A. 814 of 1998 and that in the circumstances of the case the respondent has acquired valuable rights of which she should not be deprived.
10. ' Accordingly I hereby dismiss C.M.A. 814 of IA 1998 but with no order as to costs.