' This appeal is directed against the order dated 29-4-1970 passed by the learned Additional District Judge, Lahore, accepting the appeal filed by the respondent against the order of eviction as well as the order rejecting his application for setting aside the ex parte order. The learned lower appellate Court after accepting the appeal remanded the se for decision on merits.
2. The respondent was proceeded against ex parte on 24-9-1966 and on the same date an ex parte order of ejectment was passed against him. He submitted an application on the same date for setting aside the ex parte order which was dismissed by the learned Controller on 8-12-1966.
3. In order to show that his absence on the relevant date was not wilful the respondent examined two counsel i,e, his original counsel. Malik Bahaud Din as well as Mr. Muhammad Yasin, Advocate, who informed Malik Bahaud Din, Advocate that his case was being called by the Court on 24-9- 1966. Malik Bahaud Din has stated on oath that while outside the Court he was informed by Mr. Muhammad Yasin Advocate that his case was being called out. He went inside the Court Room and enquired about the case being called out. He was told that the case was fixed for the said date. He apprised the Court that according to his diary the case was fixed for 29-9-1966 and not for 24-9-1966. He further stated that even on his envelope containing the brief the date as 29-9.1966 was written by him. The learned Controller rejected the application mainly on the ground that since Wali Muhammad did not examine himself in support of his case, therefore, the application could not be accepted.
' I am afraid, the reason for rejection of the application is not tenable. In the presence of statements of two learned counsel that the absence of the respondent was not intentional rather due to bona fide mistake about the actual date of hearing the application should have been granted and the ejectment order set aside.
3. As a result of the above discussion I don't feel inclined to interfere with the order passed by the learned lower appellate Court. The appeal having no force is hereby dismissed without any order as to costs. The record of the case may be immediately sent to the learned District Judge, Lahore, for entrusting the same to some competent Court for decision in accordance with law. The parties are directed to appear before the learned District Judge on 30-3-1977. The case being old one will be disposed of at an early date without giving unnecessary adjournments to any of the parties.