P L D 1979 Karachi 628 (PLP)

Dates of hearing : 19th, 29th April and 22nd May 1978. This appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, is directed against an order passed by the learned IV Additional District Judge, Karachi, on 20th October, 1977. dismissing the appeal preferred by the appellant and upholding the order, date3 31‑1‑1977, of the learned Rent Controller, whereby he had struck off the defence of the appellant and directed him to deliver vacant possession of the premises i n dispute to the respondent.

2. The relevant facts for the purposes of this appeal, shortly stated, are that the respondent is the Landlord of a Bungalow on Plot No. C‑2/A, North Nazimabad, Karachi, and the appellant is the tenant thereof at the rate of Rs. 475 per month. Disputes having arisen between the parties, the respondent, on 22‑11‑1975, filed a rent case against the appellant, seeking his eviction on the grounds that the appellant had caused material damage to the premises, and that further the respondent required the premises in good faith for his own occupation. The appellant filed his written statement where he strongly denied the allegation of his having damaged the premises and also disputed the claim of the respondent that the premises were required by the respondent for his personal occupation. His contention was that the premises being in a bad state of disrepair, he had sent a notice to the respondent through his lawyer calling upon him to effect the necessary repairs, and by way of conterblast, the respondent has filed the present application for his ejectment.

3. On 24‑4‑1976, the learned Rent Controller passed an order under section 13(6) of the Rent Restriction Ordinance, directing the appellant inter alia to deposit the arrears of rent amounting to Rs. 2,264 before the 15th of May, 1976. The appellant failed to deposit the arrears of rent by the due date and instead deposited the same on 22‑5‑1976, that is 8 days later. In his explanation, the appellant submitted that the failure to deposit the arrears of rent in time was on account of the fact that from 12‑5‑1976 upto 21‑5‑1976, he was suffering from hypertension and coronary insufficiency and was under the treatment of Dr. S. M. M. Jamil, who had advised him not to speak or move but to rest in bed. In support of his explanation, he filed the certificate of the said Dr. Jamil.

4. The learned Rent Controller took the view that as there was nothing to show that the appellant was suffering from any ailment prior to 12‑5‑1976. he could easily have deposited the arrears before that date and so avoided default. As for the period from 12‑5‑1976 to 20‑5‑1976, the learned Rent Controller held that neither the medical certificate produced by the appellant indicated that the appellant was unable to speak or had been advised not to speak nor had the appellant produced prescriptions or any other thing to how that he was really suffering from any disease during the said period. He accordingly rejected the explanation of the appellant, struck off his defence and directed him to deliver vacant possession of the premises to the respondent.

5. On appeal, the learned Ist Appellate Court upheld the view of the learned Rent Controller and rejected the pleas of the appellant.

6. It may be mentioned that during the hearing of the appeal before this Court, it was found that though the appellant in his explanation had stated that during the period from 12‑5‑1976 up to 21‑5‑1976, he was suffering from hypertension and coronary insufficiency and accordingly had been advised complete bed rest by the doctor, with the direction not to move or even to speak, and had filed certificate from his doctor in support of his explanation, but in view of the fact that though the medical certificate was apparently accepted without objection from the other side, no evidence was led to prove the handwriting and the signature of the doctor who had issued the certificate, the certificate could not be considered in evidence, in view of the decision of the Supreme Court in P L D 1973 S C

160. Furthermore, the certificate did not state that the appellant was directed to have complete bed rest and not to move at all or even to speak. In view of these circumstances, for the purposes of clarifying th. position, Dr. Jamil was summoned and be was examined by this Court.

7. I have heard Mr. Asif Zahidi, the learned counsel for the appellant, and Mr. Syed Hyder Ali Pirzada, who represented the respondent. Mr. Zahidi submitted that since the appellant had been allowed by the learned Rent Cont roller to deposit the arrears of rent by the 15th of May, 1976, no inference can be drawn from the mere fact that uptil 12‑5‑1976, he did not make the deposit, that he has committed default or was negligent in making the deposit. His further contention was that since from 12‑5‑1976 up to 21‑5‑1976, the appellant was suffering from hypertension and coronary insufficiency, as certified by Dr. Jamil, and that further the doctor had advised the appellant complete bed rest and had even forbidden him to speak, the failure of the appellant to make the deposit in question upto 21‑5‑1976 should be considered to have been due to circumstances beyond his control and accord ingly ought to be condoned.

8. It is true, as found by the two Courts below, that the appellant could, if he was so minded, deposit the arrears of rent prior to 12‑5‑1976, but he was not bound to do so and his failure cannot be considered to be a default or even a contributory factor towards the default. On 12‑5‑1976, when the appellant fell ill, he still had 4 days more for making the deposit. Furthermore, he could not have known prior to 12‑5‑1976, that he would become so ill during the next 4 days that it would not be possible for him to make the deposit or even give directions for making the deposit. In the circumstances, n negligence on the part of the appellant can be presumed nor can his failure t make the deposit before 12‑5‑1976, be deemed to be either a wilful default or to have contributed towards the "default".

9. So far as the period between 12‑5‑1976 and 21‑5‑1976 is concerned, the evidence of Dr. Jamil shows that the appellant was suffering from hypertension, that is abnormally high blood pressure, and coronary insufficiency. The doctor has certified that so far he can recollect his blood pressure was above 200, which certainly is abnormally high. The doctor has also deposed that he bad advised the appellant to have complete bed rest and not even to speak. The doctor has produced the medical certificate which he had issued in respect of the appellant. It is true that the medical certificate does not mention that the appellant was advised bed rest or he was forbidden to speak, but apart from the fact that in the explanation filed by the appellant this has been specifically stated, the doctor in his evidence has testified to having given such directions. The doctor is an independent witness and I do not think that the mere circumstances that he was a family physician of the appellant or knew him from Dacca would induce him to give obliging evidence in favour of the appellant. No doubt doctor Jamil is not a heart specialist, but since he was a family physician of the appellant, naturally the appellant would turn to him for advice. The nature of the ailments from which the appellant was suffering during the relevant time are such that normally directions of the nature given by the Dr. Jamil to the appellant could be issued by the physician.

10. Mr. Pirzada resisted the appeal on a number of grounds. His firs contention was that inasmuch as both the Courts below had held that default had been committed by the appellant, this was a finding of fact and B could not be disturbed in second appeal. I find no substance in this conten tion. ' In Muhammad Alam v. Noor Muhammad (1973 S C M R 606) their Lordships of the Supreme Court have held that the finding on the question that there was default by the tenant in the payment of rent was a finding on a mixed question of law and fact and such concurrent findings of the Courts below could be displaced by the High Court in second appeal.

11. It was next contended by Mr. Pirzada that the ailments from which the appellant was suffering were not such as to preclude him from making the deposit of arrears of rent, if he really wanted to make the deposit, and in any case, he admittedly had a son who could have made the deposit on behalf of the appellant. I have already dealt with the first aspect of the case and have shown that not only the appellant was suffering from dangerous ailments but further they were of such a nature that the doctor had to advise him complete rest and even forbade him from speaking. No doubt, the appellant had a son, as admitted by the appellant in his explanation, but apart from the question that the appellant had to make arrangement for an amount of Rs. 2,264, for which he may not have been able to make arrange ment by the time he fell sick, but further, since he was forbidden by the doctor to speak and his family must have been quite upset at the serious illness of the appellant, the failure on the part of the appellant to direct his son to make the deposit is not only understandable but being in pursuance of the directions of the doctor not to speak, can be considered to be a circumstance beyond his control and hence excusable.

12. As held by the Supreme Court in Ghulam Muhammad Khan Lundkhor v. Safdar Ali (P L D 1967 S C 536) default by the tenant, in order to invite the rigors of hi defence being struck off, means non‑compliance with the order of payment if the failure was due to some avoidable cause. In the instant case, I am firmly of the view that the failure of the appellant to make the deposit was due to the serious nature of his ailments and was thus not on account of avoidable circumstances but on the contrary due to circumstances over which he had no possible control.

13. It was finally contended by Mr. Pirzada that the evidence of Dr. Jamil should not be considered on the ground that the said evidence was inad missible in view of the provisions of Order XLI, rule 27, C. P. C. In support of his contention, the learned counsel relied upon the decisions reported in A I R 1965 S C 1008 ; A I R 1944 Sind 57 ; P L D.1969 S C 60 ; 1972 S C M R 374 and P L D 1972 S C

595. In all these rulings, it has been held that under Order XLI, rule 27, C. P. C. the appellate Court un doubtedly has the power to allow a document to be produced or a witness to be examined, but the limitations on those powers and the cases where such power is to be exercised have been considered and stressed. The essential requirement is that the additional evidence should be required by the Court for the purposes of enabling it to pronounce judgment. As held in A I R 1944 Sind 57, an application by a party may bring to the notice of the Court an inherent lacuna or defect which would justify the admission of additional evidence. As pointed out by the Supreme Court in Muhammad Siddiq Muhammad Umar v. Australasia Bank Ltd. (P L D 1966 S C 684) the rule merely prescribes that the requirement must be a genuine one and that the need for the additional evidence must be felt by the Court itself after it has examined the evidence already on the record and come to the conclusion that there is apparent some inherent lacuna or defect which hinders the due administration of justice.

14. I have already detailed the circumstances is which I had summoned the doctor and examined him, vide my order dated 19‑4‑1978. In that order I have given the reasons which prompted me to summon the doctor on an application being made in this behalf by the appellant, which were, firstly, that though the medical certificate had been admitted without opposition, it could not really be considered without it being proved, and secondly, that I wanted to know the severity of the ailments of the appellant and whether they were of such a nature as to justify his being ordered complete bed rest and directed not to speak. The evidence of the Doctor was thus required by the Court itself for enabling it to pronounce Judgment.

15. The upshot of the above discussion is that I consider that the failure of the appellant to deposit the arrears of rent before 22‑5‑1976 wash for reasons over which he had no control and consequently the delay m' making the deposit is condoned. I would accordingly accept the appeal with costs, and set aside the decisions of the two lower Courts. S. Q. Appeal accepted.