1. DORAB PATEL, J.-The petitioner is the tenant of a shop owned by the respondent. The respondent had filed an eviction application against the petitioner which had been decreed, therefore, the petitioner had challenged the Rent Controller's order in the District Court, Lyallpur. As the petitioner's appeal was dismissed, he had filed a second appeal in the Lahore High Court. This appeal came up for admission before a learned Judge of the High Court on 27-1-1977 and as the petitioner and his learned counsel were both absent, the appeal was dismissed for default. But according to the petitioner, he was not aware of the dismissal of his second appeal until 6-4-1977, and on coming to know of the High Court's order of 27-1-1977, he immediately filed an application under Order XLI, rule 19 read with section 151 of the Civil Procedure Code for the re-admission of his appeal. The ground on which this application was pressed was that "non-appearance" of the peti--tioner and of his learned counsel was not intentional, because the learned counsel had "missed (the appeal) from the list". This application was, however, dismissed by the learned Judge on 13-4-1977 on the sole ground that it was time-barred under Article 168 of the First Schedule of the Limitation Act. As the learned Judge had thus failed to examine the peti--tioner's plea that his case fell under section 151 of the Civil Procedure Code, the petitioner filed a review application, but this application was dismissed on 29-4-1977 with the observation that section 151 "will not apply where a particular provision is made in a statute to cover a contingency." Although the "particular provision" has not been specified in the brief order of the learned Judge, it is clear that his observation had reference to rule 19 of Order XLI of the Civil Procedure Code.
2. The petitioner has, therefore, filed this petition for leave against the High Court's orders of 13-4-1977 and 29-4-1977 and at the outset we would observe that as the petition is within time against the order of 13-4-1977, it is not necessary to examine the question whether the review application was competent. Accordingly, we would now turn to learned counsel's sub--mission that the petitioner was entitled to rely on section 151 of the Civil Procedure Code in support of his restoration application.
3. As the learned Judge had rejected the plea that section 151 was attracted to the facts of the case.
4. Mr. Sirajul Haq referred us to judgments reported in Nandkishore v. Lalji and others(AIR 1950 Nag.
5. 195) and in Bhagwati Prasad and another v. Ram Roop Tewari & Co. (AIR 1962 All. 622). As both these judgments support learned counsel's submission, and this means that there is cleavage of opinion in the High Courts of the sub-continent on the question whether the inherent powers of the Court can be invoked in order to restore a case which has been dismissed for default. However, we would not be justified in granting leave merely to resolve this cleavage of opinion, because leave is sought against a discretionary order, therefore, as the question is whether the impugned order was capricious, it is necessary to examine in some detail whether the petitioner and his learned counsel had made out sufficient cause for their failure to be present in Court when their appeal came up for admission.
6. As we pointed out, the plea taken by the petitioner was that his counsel had failed to notice that the appeal had been listed in the cause list for hear--ing. As the failure to notice the appeal in the cause list amounted prima facie to negligence, Mr. Sirajul Haq relied on the fact that the description of the appellant in the High Court's cause list was not correct. The description reads; "Daily Single Bench Cause List for 27-1-1977 Mr. Justice Aftab Hussain, Record Case
(a) SAO 546-76 Muhammad Muna v.
7. Ch. Khurshid Alam (M. Ahmad Hassan Khan)."
8. The description gives the number of the appeal and the name of the petitioner's Advocate correctly but the petitioner's name is given as Muhammad Muna whilst his name is Muhammad Munawar. However, learned counsel stated from the bar that the weekly cause list of the Lahore High Court always ran into 30 or 40 pages, therefore, it was not possible for any Advocate to find out whether his case had been fixed for hearing unless the names of the parties were correctly described. But, as submitted by Mr. Masood, who appeared for the caveator, it would be much easier to trace a case through the name of the Advocate, and the cause list had given correctly, in the instant case, not only the name of the petitioner's Advocate but also the respondent's name and the number of the appeal.
9. On our enquiries we were further informed that the bar association supplied only weekly cause lists, whilst daily cause lists were fixed on the notice boards of the Courts outside every Court Room.
10. Obviously, therefore, an Advocate is required to verify the position of a case from the weekly cause list as well as from the daily cause list, published outside the Court Rooms. And if the petitioner and his learned counsel had been vigilant, they would have found a mention of their appeal in the daily cause list of the High Court.
11. Learned counsel then submitted that the petitioner's case was supported by this Court's judgment in Seth Shivrattan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. (PLD 1965 SC 669), whilst learned counsel for the caveator relied on this Court's order in Zulfiqar Ali v. Lal Din (1974 SCMR 162) and taking the latter case first, this Court observed "The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court it is he who should suffer and not the other side."
12. We respectfully agree with these observations and although as submitted byMr. Sirajul Haq, the facts of this case are distinguishable, the principle laid down in these observations is fully applicable to the instant case.
13. Turning now to this Court's order in Muhatta's case, the facts were that the respondent's suit has been fixed for hearing in the Karachi Seat of the West Pakistan High Court, on 1st May 1957 and was dismissed for default as the respondent and his learned counsel were not present. But the 1st of May 1957, had been declared an Eid Holiday by the Court which had however remained open as the Moon had not been sighted on the previous evening. In these circumstances, the respondent challenged the dismissal of its suit in a Letters Patent Appeal, and the Letters Patent Bench accepted the respondent's contention that it had sufficient cause for its non-appearance because the 1 May 1957, bad originally been declared a Court Holiday. The appellant challenged this order of the Letters Patent Bench in an appeal in this Court, and as the appeal was dismissed, Mr. Sirajul Haq submitted that it supported the case of the petitioner. The argument is fallacious because the respondent in the case cited had been misguided by the Court's announcement for the 1st of May 1957, as a Court Holiday. The judgment is also distinguishable on the further ground that the appeal was against a discretionary order and this Court merely refused to interfere with the discretion exercised by the High Court. But as in the instant case leave is sought against the discretion exercised by the High Court in the respondent's favour, far from supporting the petitioner's case, the judgment is fatal to it."
14. We, therefore, hold that, on the facts, the petitioner has failed to bring, his case under section 151 of the Civil Procedure Code and this petition is dismissed. However, we grant the petitioner four months time to hand over vacant possession of the demised premises to the respondent provided, he continues to pay the rent for this period.