1982 PLP 1604 (CLC)

Abdur Rahim Kazi for Appellant. Date of hearing : 1st November, 1981. This second appeal has been filed against the order dated 18th October, 1979 of the Rent Controller, Hyderabad, in Rent Case No, 130/71 striking off' the defence of the appellant for non‑compliance with the tentative order dated 4th July, 1972 for deposit of rent inasmuch as, according to the Rent Controller, there was a default in the deposit of rent for the month of April 1977 and August 1978, and the order dated 10th September, 1981 of the IVth Additional District Judge, Hyderabad, dismissing the First Appeal No. 271 of 1979 filed by the Appellant. I have heard Mr. A.R. Kazi, learned counsel for the appellant. It is an admitted position that technically there is a default as rent of April 1977 was deposited on 16th May, 1977 and the rent of August 1978 was deposited on 21st September, 1978. Both the Courts below, ha treated the defaults as wilful and against the concurrent findings of fact the present appeal has been filed on the ground that there was no wilful default on the part of the appellant and that he was prevented from depositing the rent on account of circumstances beyond his control and power. In respect of the first default relating to the month of April 1977, it was contended that in the month of May 1977 there were political disturbances in the country and there was a curfew in the city of Hyderabad during those days and, therefore, the appellant could not come to Court to deposit the rent in time which was deposited only one day late. As regards the other default relating to the month of August, 1978. as observed earlier, the rent was deposited on 21st September, 1978. According to learned counsel, the appellant was a sick man and was confined to bed from 1st to 20th September 1978 under medical advice and, therefore, could not come to Court to deposit the rent. Reliance was placed on a medical certificate that he was suffering from Tonsilitus and high fever and was advised rest from 1st to 20th of September 1978. The Rent Controller has dealt with this default in his order dated 18th October, 1979 as follows :‑‑ "The opponent has given explanation for not depositing the rent for the month of August 1978 which he was supposed to deposit before 15th September, 4978 due to his illness from 1st to 20th September, 1978. He has produced medical certificate to show that he was not able to come to Court to deposit the rent. The medical certificate produced by the opponent shows that he was advised rest during that period. The medical certificate never indicates that the opponent was advised not to move from bed. The opponent could have contacted his Advocate or even through servant or other, person could have sent the rent for depositing to his account The conduct of the opponent shows that the circumstances were never beyond his control and power but he has wilfully and deliberately not complied with the orders of Court." In respect of the second default learned counsel contended that the medical certificate in question was sufficient to' establish that it was beyond the powers of the appellant to deposit the rent before 21st September, 1978. Learned Counsel has relied upon the judgment of a learned Single Judge of this Court in the case of Zahid Hussain Khan v. Muhammad Abdullah (P L D 1979 Kar. 628). In that case, the High Court in second appeal summoned the doctor who had issued the medical Certificate in respect of the illness of the tenant and recorded the statement. On the basis of the evidence on record in that case, it was found that the tenant was suffering from high blood pressure and coronory insufficiency and that according to the doctor, the blood pressure of the tenant was above 200 which was "abnormally high". According to the doctor in that case the tenant had been advised to take complete bed rest and not even to speak. In those circumstances, the learned Single Judge came to the conclusion that the tenant had failed to deposit the arrears of rent for reasons over which he had no control. The facts of that case are clearly distinguishable from the present case. In the present case, the assertion is, that the appellant was suffering from Tonsilitus and high fever and was advised bed rest. There was no evidence before the Rent Controller that the illness was so serious that for 20 days he was not in a position to move at all. In my view, on the basis of the scanty evidence on record the Rent Controller has given a correct decision supported by cogent reasons that there was a default in the deposit of rent for the month of August 1978 and that it was not beyond the appellant's control and power to deposit the rent within time. There is a‑concurrent finding of fact by the two Courts below and the reasons given by the two Courts are cogent and I do not see any reason to interfere with the impugned orders. There is no merit in this second appeal which is dismissed in limine. The appellant, however, is granted time till 31st. January, 1982 (Thirty first of January, One Thousand Nine Hundred Eighty‑Two) to vacate the premises. K.M,A. ?????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.