1980 PLP 441 (CLC)

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- -- Ss. 15 & 13 (6)-Order of deposit of rent made by High Court, on application of appellant (landlord)--Such case, held, not a case of tenant (appellant) seeking stay of order of eviction having been directed to deposit rent as condition for grant of stay -Failure to deposit rent in such case results in discharge of stay and not in striking off tenant's defence. Hasan Akbar for Appellants. Asadali Bilgrami for Respondent. Date of hearing : 23rd January, 1979. By this application the appellant landlords seeks to have the respon dents'. defence struck off on the ground that the respondents committed default in compliance with the order dated 27th September, 1977 made by this Court in that rent for the month of December, 1977 was deposited on 16th January, 1978 whereas the same ought to have been deposited on or before 14th January., 1978. The respondents have filed C. M. A. 397 of 1;978 dated 8th March. 1978 in which the prayer is that the delay of two days in depositing the rent for the month of December, 1977 be condoned on the ground that the Manager of the respondent firm had b-come seriously ill between the night of 9th January 1978 and 10th January 1,978 and he remained so ill till 15th January, 1978 and as such the rent was deposited on 16th January, 1978. With the application is attached a doctor's certificate certifying that Mohammad Younus was suffering from Malaria and remained under treatment from 10th January, 1978 to 15th January 1978 and he was bed-ridden during this period. The order dated 27th September, 1977 of which the non-compliance is alleged was made on an application filed by the appellants on 28th August, 1977 under section 15 (5) read with section 13 (6) of the Rent Ordinance. By this order the respondent tenant was directed to deposit regularly monthly rent due before the 15th day of each calendar month in terms of the order passed by the Controller.

2. Mr. Hassan Akbar, the learned counsel for the appellant,, landlords pointed out that admittedly there was default in depositing the rent for the month of December, 1917 inasmuch as it was deposited on 16th January, 1978 whereas the same bought to have. been deposited before the 15th of January, 1978 and went t,)n to argue that though this default was pointed out as far back as 24th of January, 1978, the application for condonation of the delay in making the payment was not made until 18th March, 1978, The learned counsel also pointed out that the medical certificate on which the respondents rely upon purports to be of 16th January, 1978 from which the inference sought to be drawn by him was that it must have been obtained for the purpose of the present proceeding; but was not made use of until 8th March. 1978 when the application for condoning the default in payment of rent was filed. Furthermore, the learned counsel went on to argue that the illness of the Assistant Manager of the respondents according to the certificate is Malaria, though the Assistant Manager himself does not refer to this illness in his affidavit for all he states is that he was seriously ill. Malaria is not such a disease that a man becomes totally incapacitated. The Assistant Manager who was expressly authorised to deposit the rent ought to have therefore made alternative arrangement. In these circumstances it was argued that no case has been made out on merits for condoning the delay and since the default has occurred for which no plausible' explanation is given it must follow that the respondents' defence be struck oft' and the respondents be directed to put the appellants in possession of the premises in question.

3. Mr. Asad Ali Bilgrami, the learned counsel for the respondents did not give any explanation as to why application for condonation of delay was not made until 8th March. 1978 notwithstanding the fact that the respondents were duly armed with a medical certificate of the allege illness of the Assistant Manager dated 16th January, 1978. On merits, therefore, I am of the view that the explanation of illness is an after thought.

4. It was next contended on behalf of the respondents that non compliance of an order of deposit of rent made by this Court in the present appeal Would not result in the respondents' defence being, struck off. This Court has held in more than one decision that the High Court in Second Appeal under section 15 of the Rent Ordinance was competent to exercise powers conferred on Controller under section 13 (6) and ca order deposit of rent pending appeal and strike off defence for non-cam liance with its own order. See Roshan Din v. S. M. Badruddin (P L D 1969 Kar. 546) and Abdul Qayum v. Salahuddin (P L D 1974 Kar. 10). It may be noticed that in the present case order under subsection (6) of section 13 was made by this Court expressly on an application made by the landlord/appellants and it is, therefore, not a case in which a tenant/appellant was seeking a stay of an order of eviction who was directed to deposit rent as a condition for grant of stay in which case failure to deposit will result in discharging the stay and not in striking off the tenants defence.

5. The result, therefore, is that C. M. A. 397 of 1978 is dismissed and C. M. A. 168/1978 is allowed in terms prayed for. The respondents will have one month's time to vacate the premises.

6. In view of the grant of C. M. A. 168/1978 this appeal has become infructuous and it is dismissed with no order as to costs. K. M. A. Appeal dismissed.