P L D 1979 Lahore 707 (PLP)

This second appeal is directed against the order dated 6-12-1975 passed by the learned Additional District Judge, Faisalabad, whereby the appellant's first appeal challenging his eviction, from House No. P-1270, Block 'B', Peoples Colony, Faisalabad ordered by the learned Rent Controller on 7-2-1974, was dismissed.

2. Precisely put the facts of this case are that the respondent filed an ejectment petition against the appellant for his eviction from the house aforesaid on the ground of default, damage caused to the property, impairing its value and utility and personal need. The appellant contested the petition.

3. On 26-9-1973 the learned Rent Controller passed an order under section 13(6) of the Rent Restriction Ordinance, requiring the appellant to deposit Rs. 720 before 15-11-1973, as arrears of rent and continue to deposit future rent before the 15th of each month. The appellant filed an application before the learned Rent Controller on 20-11-1973 that he could not deposit the rent for the month of October 1973 before 11-11-1973 due to the illness of his wife and that the time may be extended. The rent for this month was however deposited on the 21-11-1973. The respondent controverted the appellant's contention and moved an application that in addition to the default for the month of October, there was yet another default as the rent for the month of September was deposited by the appellant on 8-11-1973 and, that, therefore, his defence was liable to be struck off.

4. As regards the late deposit of rent for the mouth of September, the appellant submitted that he was under the impression that the rent for this month was to be deposited along with the arrears that it was for these reasons that he deposited the rent for the month of September alongwith the arrears on 8-11-1

473. The appellant's this contention as well as his explanation for late deposit of rent for the month of October 1973, was not accepted by the learned Rent Controller, who vide his order dated 7-2-1974, struck off the appellant's defence.

5. The appellant's first appeal also met the same fate. The learned Additional District Judge held that the appellant was not vigilant in complying with the orders of the learned Rent Controller. Non-production of the medical certificate by the appellant to prove the illness of his wife was also one of the reasons taken into consideration by the learned Additional District Judge for dismissing the appeal. He also held that the default was wilful and not beyond the appellant's control.

6. The learned counsel for the appellant has argued that the default was not wilful. The submissions made by the appellant before the authorities below were reiterated. It was submitted that the appellant was under bona fide mistake that the rent for the month of September was to be deposited with the arrears of rent and that, therefore, he deposited the rent for this month along with the arrears on 8-11-1973. Regarding the late deposit of rent for the month of October, the illness of appellant's wife was canvased as a ground for condonation of the default. Reliance was also placed on Mian Muhammad Abdullah v. Sheikh Nawwab Din (1971 SCMR 336). The proposition laid down in this precedent is that a tenant, whose defence is struck off, is not shut out from proving by evidence on record that he is not a defaulter. This dictum is hardly of any avail to the appellant. Not that he was precluded from proving that the default was not wilful but his contention was not accepted. There is no ambiguity in the learned Rent Controller's order regarding deposit of rent. Apparently there was no reason for the appellant A to have an erroneous impression that the rent for the month of September was to be deposited with arrears of the rent. Similarly, his failure to produce the medical certificate, in support of his wife's illness, was a cogent reason for not accepting submission, for condonation of the appellant's default for the late deposit of rent for the month of October 1973. A concurrent finding of fact has been given by the authorities below that the appellant's default was wilful. I have not been convinced to differ with this finding.

7. There is no merit in this appeal, and I reject the same, leaving the parties to bear their own costs.

8. The appellant is directed to hand over the vacant possession of the house in dispute to the respondent on or before the 5th April, 1979.