1988 PLP 1486 (CLC)

P L D 1968 Kar. 521 ref. Syed Akhtar Saeed for Appellant. This appeal is directed against the order of the learned First Rent Controller, Mirpur Khas, dated 18‑11‑1987 whereby he has struck off the defence of the appellant and ordered his eviction from the premises in question, namely Shop No.4, Aslam Arif Chambers situated at Mohallah Dholanabad, Mirpur Khas. The facts giving rise to this appeal are that the learned Rent Controller had passed an order under section 16 (1) of Sind Rented Premises Ordinance, 1979, (hereinafter called "the Ordinance") directing the appellant to continue to deposit the monthly rent regularly in Court. The rent for the month of May 1987 was to be deposited by 10‑6‑1987 but it could not, according to the appellant, be deposited by that date as when it was tendered to the Nazir he refused to accept it on the ground that the Courts were closed for summer vacations. On the reopening day of the Courts after vacation, namely, the 1st July 1987 the appellant fell ill and remained confined to bed till 7‑7‑1987. Immediately from recovering his illness on 8‑7‑1987 he deposited the rent for the months of May and June 1987. The respondent, however, made an application under Section 16 (2) on 13‑9‑1987, for striking off the defence of the appellant on account of his failure to deposit the rent for the month of May 1987 in time as per order of the Court. The appellant filed objections to the said application duly supported by his affidavit wherein he pleaded the above facts and stated that the delay of seven days was due to the said unavoidable circumstances. The learned trial Court vide his impugned order, as already stated, found the explanation of the appellant to be unsatisfactory and accordingly allowed the application of the respondent made under section 16 (2) of the Ordinance. I have heard Mr. S.Akhtar Saeed, the learned counsel for the appellant, who contended that there was no wilful default on the part of the appellant in depositing the rent for the month of May 1987 in time and that it was on account of his illness as is evidently borne out from the medical certificate produced by him that he could not make it possible to deposit the rent in time or earlier than 8th May, 1987. He also emphasised that the bona fide of the appellant was also established by the fact that the rent for the month of June 1987 was also deposited alongwith the rent for the month of May 1987. The learned counsel placed reliance on an authority of the erstwhile High Court of West Pakistan, Karachi Bench reported in P L D 1968 Kar. 521 wherein, according to him, in similar circumstances the default was held to be not wilful. I have perused the authority. No doubt in that case also the rent for the month of May was deposited on 4‑7‑1964. In that case the tenant was out of Karachi and his wife, who was entrusted with the work of depositing of rent, could not attend the Court due to the illness of her young child. The ground was supported by a medical certificate. The Rent Controller, however, struck off the defence and directed them to vacate the premises in dispute. The High Court looking to the circumstances of the case held. "The respondents were justified in presuming that deposit of rent will not be accepted during the vacation. Their bona fides can also be judged from the further fact that they deposited the rent for May and June 1964, on 4th July. The contention that the deposit should have been made on 1st July, when the District Court re‑opened after vacation, loses force in view of the medical certificate on record that the child of the respondent No.l was very ill then and consequently, respondent No.l being out of Karachi, his wife could not attend the District Court for this purpose. In the circumstances, it cannot be held that the respondents were negligent in depositing rent in compliance with the order of the Rent Controller. Moreover, the question whether the default was negligent or otherwise, is a question of fact and stands concluded by the order of the First Appellate Authority, as held in the case of A. Ghaffar v. State and Muhammad Shafi v. Allah Dino. In the circumstances the appeal is dismissed. However, the parties are left to bear their own costs." In the instant case, however, I find that in the first instance the medical certificate produced in support of the alleged illness of the appellant does not disclose the illness to be so serious as to have rendered the appellant unable to move about or entrust the amount to his counsel or deposit the same in Court. Besides, the respondent had filed his own counter‑affidavit to the affidavit filed in support of the objections wherein he deposed that he was running a Musafir Khana in the name and style of Dina Hotel which is situated above the disputed shop. It was false that the opponent was ill from 1‑7‑1987 to 7‑7‑1987. In fact, during these days he had been present and working in the shop and the deponent had been seeing him on ^ all the seven days. No affidavit in rejoinder to the above affidavit was filed on behalf of the appellant thereby the facts mentioned in the counter‑affidavit remained uncontroverted. This fact heavily goes against the appellant. Even otherwise, as already observed, I find it difficult to agree with the contention of the learned counsel for the appellant that the appellant was prevented by his illness from depositing the rent because the nature of illness has not been proved to be so severe in nature as to prevent him to move about or make it possible to deposit the rent in Court. There is yet another factor which goes against the appellant and it is that he did not himself make it possible application for condonation of delay until an application for striking of defence was presented by the respondent. Thus, from every possible angle the bona fides on the part of the appellant is lacking in depositing the rent in time. The result is that the appeal is dismissed in limine as being devoid of force.

2. In view of the order passed above this application has become infructuous and as such it is also dismissed. Appeal dismissed. H.B.T./N‑98/K