1983 PLP 1956 (CLC)

Hassan Jafar for Respondents. Date of hearing : 12th December, 1982. The appellant abovenamed, being aggrieved by order dated 21st November, 1978 of the learned II‑Additional District and Sessions Judge, Karachi in Rent Appeal No. 427/75 by which appellant's said appeal was dismissed and the learned Rent Controller's order dated 22nd July, 1975 passed under section ‑ 13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959, by which appellant's defence was struck off was upheld, has filed the above appeal on the facts and grounds mentioned in the memo. of appeal.

2. The learned Advocate for the appellant in support of the above appeal submitted, that in all the four years, after passing of the tentative rent order; appellant bad been depositing rents in the Court of the learned Rent Controller regularly and punctually in compliance with the said orders. However unfortunately the appellant did not deposit rent due for the month of September. 1974 on or before 14th October, 1974 but deposited the same on 15th October, 1974, as on the night between the 13th and 14th September, 1974, appellant became sick and developed high fever and consequently he was unable to go to the Court of the learned Rent Controller and deposit the said rent on 14th October, 1974. The learned Advocate for the appellant further drew my attention to the objections filed by the appellant to respondent's application under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 and a counter‑affidavit filed in support thereof and stated, that the appellant had given this reason in his counter‑affidavit .to respondent‑‑'s application in question and also produced a medical certificate of a Registered Practi tioner and further stated in the said affidavit, that there was no adult male member with him in his house, who could have deposited the rent of the premises on 14th October, 1974, when he was confined to bed with high fever. In view of these facts, the learned Advocate for the appellant submitted, that the default in question was not deliberate and as such it ought to have been condoned by both the learned lower Courts. In support of this contentions the learned Advocate for the appellant relied upon cases reported in P L D 1963 Kar. 777, P L D 1967 S C 530 and P L D 1981 Kar. 150.

3. The learned Advocate appearing for the respondent on the other band submitted, that admittedly there was a default in depositing of the rent for the month of September by one day. The only explanation given by the appellant in his counter‑affidavit was, that he was confined to bed with high fever and that he had no male member in his house, who could have deposited the said rent on his behalf on 14th October, 1974. The learned Advocate for the respondent submitted, that the respondent filed an affidavit‑in‑rejoinder denying these facts and further the respondent gave the name of appellant's son aged about 1.8 years, who was residing with the appellant and axe such both the learned lower Courts were fully justified in rejecting the contentions of the appellant regarding his illness and inability to deposit the rent for the month of September, 1974, on 14th October, 1974. In view of this the learned Advocate for the respon dent, submitted, that this was a clear case of default and both the learned lower Courts have rightly granted respondent's application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. In support of his contentions the learned Advocate for the respondent relied upon cases reported in 1977 S C M R 217, 1980 S C M R 298, 1973 S C M R 243, P L D 1967 S C 530 and P L D 1972 Quetta 5.

4. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the cases cited by both the learned advocates. I have also gone through the record and pro ceedings of the learned trial Court and have perused the application under section 13(6) of the West Pakistan Urban Rent Restriction. Ordinance, 1959 made by the respondent and the counter‑affidavit filed by the appellant to the said application, as well as I have gone through the affidavit‑in -rejoinder filed by the respondent. I have also gone through the 'impugned order of the learned Rent Controller as well as impugned Judgment of the learned IInd Additional District Judge, 'Karachi by which appellant's first appeal was dismissed and the impugned order of the learned Rent Controller was confirmed.

5. I find that the appellant alongwith his objections in the shape of counter‑affidavit produced a medical certificate of a registered practitioner regarding his allegations about high fever, which he developed between the night of 13th and 14th October, 1974. 1 also find that in this affidavit the appellant has categorically mentioned, that no male member of his family were residing with him, who could have been sent by him to deposit the rent in the Court of learned Rent Controller on 14th October, 1974. No doubt these assertions made by the appellant have not only been denied by the respondent in his affidavit‑in‑rejoinder, but the respondent, has challenged the authenticity of the medical certificate and has given the name of the alleged son of the appellant, who was residing with him. . I further find that the respondent in his affidavit in‑rejoinder has further stated, that the appellant on 14th October, 1974 had opened his shop in .his presence and was doing business, In spite of these assertions made by the `respon dent, I find from the record and proceedings of the learned Rent Controller, that the respondent made no application for cross‑examination of the appellant in support of his counter‑affidavit. The allegations made in the affidavit‑in‑rejoinder by the respondent could not have been denied by the appellant, as he had no further right of filing any affidavit, to such affidavit‑in‑rejoinder. In view of this position on record, mere denial of the respondent of all the assertions made by the appellant in his counter affidavit filed by way of objections to the respondent's application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, cannot disprove the facts alleged by the appellant in his counter‑affidavit. The respondent had full legal right to ask for the cross‑examination of the appellant, on the basis of his affidavit‑in‑rejoinder, if he wanted to do so, but this right was not exercised by the respondent. Furthermore I find from the records, that this was the only default committed by the appellant in about 4 years period, after the passing of the tentative rent order dated 15th April, 1971.

6. Therefore, in my opinion, the appellant fully explained the reasons and causes which prevented him from depositing the rent for the month of September, 1974 on 14th October, 1974, which in fact he deposit ed on 15th October, 1974 and as such this is not a wilful default or dis -obedience of the tentative order of rent passed by the learned Rent Controller, in my opinion. The contention of the learned Advocate for the respondent, that appellant could have been careful and vigilant and ought to have deposited the rent for the month of September, 1974 between the period from 1st October, 1974 upto 14th October, 1974 and as he failed to do so, he alone is to be blamed for such non‑depositing on account of this alleged reason of sickness. I am afraid I cannot agree with this contention of the learned Advocate for the respondent, as the law gives a time for deposit of such rent to the tenant and as such the mere non, deposit of rent prior to 14th October. 1974 would not be a reason for raising presumption against the appellant for his negligence, as suggested by the learned Advocate for the respondent.

7. Therefore, I allow the above appeal and set aside the impugned ‑order dated 22nd July, 1915 of the learned Rent Controller as well as the impugned judgment dated 21st November, 1978 of the .learned Ilnd Additional District and Sessions Judge, Karachi and restore the defence of the appellant and remand back the original ejectment application to the learned Rent Controller for disposal on merits, in accordance with the law, within three months from the receipt of the copy of this Judgment.

8. In view of the facts and circumstances of the above case, I would pass no orders as to costs. Appeal allowed.