P L D 1966 (W (PLP)

S. Usman Ali Shah for Appellant. Fazal Karim Akhtar for Respondent. Date of hearing : 7th January 1966. This second appeal is rendered infructuous on the narrow ground that there is concurrent finding fact based on unimpeachable evidence of Dr. Muhammad Hafeez and Nazar Hussain (R. W. 2) that the respondent was seriously ill with Typhoid, and therefore prevented from depositing the rent for the month of October 1963 by the due date viz., 4‑11‑1963. This concurrent finding of fact is conclusive and cannot be canvassed in second appeal. There are high authorities of the Privy Council and the Federal Court of Pakistan that concurrent finding of fact by lower Courts, however gross and inexcusable the error may be the finding provided evidence has been considered cannot be challenged in second appeal. See the decision of Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38), in which the decision of the Privy Council in Durga Chowdhrani v. Jewahir Singh Chowdhri (I L R 18 Cal. 23) and Wall Muhammad and others v. Muhammad Bakhsh and others (I L R 11 Lah. 199) were relied on. 2. There is another substantial reason for rendering the appeal unmeritorious and it is that the Rent Controller who was seized of the case had been transferred and his successor had not arrived by the 6th November 1963, when the amount was deposited with the permission of a Civil Judge who was Rent Controller of another area. The learned counsel for the appellant argued that the amount could have been deposited with the permission of the same Rent Controller on or before 4th November 1963. The argument assumes that the Rent Controller of another area is legally competent to pass orders in regard to deposit of future rent in cases which are outside his territorial jurisdiction. I am not aware of any provision in the Rent Restriction Ordinance and none was brought to my notice by the learned counsel for the appellant which would authorise the Rent Controller having no territorial jurisdiction of the case to deputize for the competent Rent Controller and allow the deposit of future rent. 3. The learned counsel for the appellant next argued that illness, however serious it might be, would not furnish a legal excuse for not depositing the Rent by the due date and that the failure to deposit the future rent by the due date would be a "default" within the meaning of section 13(6) and automatically bring about the striking of the defence of the tenant. The argument was tried to be built on the following observation in the decision of Abdul Majid v. Saadullah and another (P L D 1963 Quetta 16):‑- "In the present case, however, even accepting the allegations of the appellant regarding his illness, we have no hesitation in holding that the default on his part was negligent if not wilful. If he had really fallen ill it should not have made him forget his obligation in respect of the case that he was fighting against the landlords . . . . . he could easily have commissioned some one to do so." The answer to the argument founded on the observation reproduced above is provided in the judgment itself, when at page 19 in paragraph 6, Sajjad Ahmad Jan, J., speaking for the Division Bench, observed:‑

" and in our view the Legislature, by using the language which it has intended to penalise defaults made wilfully and negligently by the tenants and not the defaults that might occur for reasons beyond their control."

4. It follows from the above discussion that the expression "default" occurring in section 13(6) means such defaults which are made wilfully or negligently, and does not at all embrace defaults that might occur for reasons beyond one's control. Judged in the light of the above test, serious illness like Typhoid with relapse is undoubtedly by the act of God and beyond the control of human being and would, therefore, furnish a legal excuse for not depositing rent by the due date.

5. For all the foregoing reasons, I dismiss the appeal with costs. K. B. A. Appeal dismissed.