1979 PLP 25 (CLC)

Yusuf Ali Khan for Appellants. Islam Ali Qureshi for Respondents. Date of hearing : 4th March 1979. This Second Appeal is directed against an older for the, ejectmenf of the appellant, Sheikh Abdur Rehman, and two others from certain, rented land belonging to the respondents, Muhammad Bakhsh and four others.

2. The above order was made on an application filed by the respon dents under section 13 of the West Pakistan Urban Rent Restriction; Ordi nance, 1959. After the making of that application, the learned Rent Controller, who was seized of it, made an order on 24th April 1975 directing the three respondents in the application, including the appellant,, to deposit Rs. 5 400 as arrears of rent for the period from Ist May 1972-to 30th April 1975, at the rate of Rs. 150 per mensem tilt 26th May, 1975, as also the future rent at the aforesaid rate. They, however, did not deposit the arrears of rent by the stipulated date. On the next day that is on 27th May 1975, the appellant made an application for condonation of delay in making deposit of the arrears of rent and-asked for some time to do the needful. He explained that he was not present on. 26th April 1975 when order for deposit of arrears of rent was made as he had gone to Karachi to see his ailing mother. He was still there when his sister died in Canada and. therefore. he continued staying in Karachi to receive her dead body. According to him, it was on 27th day 1975 that lie came to know of the order relating to the deposit of rent and he then made the aforesaid application for extension of time. This application was rejected by the learned Rent Controller on the ground that even if the appellants' mother had died he had ample. time to deposit the rent in question. The learned Rent Controller, therefore, struck off the defers of the respon dents before him and ordered their ejectment. Feeling aggrieved by that order of the learned Rent Controller, only the appellant went in appeal before the Additional District Judge but without success. Hence this second appeal by him.

3. Learned counsel "for the appellant contended that the default on the part of the appellant was not wilful and, therefore, the learned Rent Controller was not justified in striking off his defence. He relied on the case of Ghulam Muhammad Khan Luhdkhor v. Safdar Ali (P L D 1967 S C 530) to support his contention. On the other hand learned counsel for the respondents urged that as the default attributed to the appellant had actually occurred the learned Rent Controller could not help striking off the defence and ordering his ejectment. He placed reliance on the case of Messrs Ansari Brothers v. Holy Trinity Church Trust (P L D 1971 S C 700) ; to substantiate his plea.

4. It is true that in view of the observations of their Lordships of the Supreme Court in the case of Ghulam Muhammad Khan Lundkhor, a tenant's defence cannot be struck off due to his default in making compliance with the direction of the learned Rent Controller unless that default is wilful but it can be clearly gathered from those very observations that only that default is not wilful which occurs due to reasons beyond the control of the tenant. In the present case, it has not been shown that there were any reasons beyond the control of the appellant for which he could not comply with the order of the learned Rent Controller. No doubt he was not himself present before the Rent Controller on the date on which order relating to the deposit of rent was made but his counsel was very much there. Since he was not himself there he should have like a prudent man immediately contacted his counsel to find out as to what had happened on that date. -No explanation whatsoever has been offered as to why he did not contact his counsel on the same day when the learned Rent Controller had made the order :or soon after that day. It is not known as to when he had gone to Karachi. No reason, whatsoever has been given as to why he did not contact his counsel from Karachi on telephone or otherwise. The date of his return from Karachi has also not been disclosed. It may also be poin ted out that the application submitted by him before the learned Rent Controller for condonation of delay in the deposit of arrears of rent was not supported by any affidavit. Even his counsel did not file an affidavit before the Rent Controller saying that he had not been able to convey his orders to the appellant. Learned counsel for the appellant has now filed an affidavit of his counsel in this Court but that too does not contain in formation on the above points. The learned counsel who has sworn to the aforesaid affidavit has contradicted the appellant in so far as the timing of the death of his sister is concerned. As stated earlier, according to the appellant he was in Karachi to look after his ailing mother when his sister breathed her last ; but in. the said affidavit it has been stated by his counsel that he had gone to Karachi to attend upon his ailing mother who was reported to be lying in a precarious condition on account of the death of her daughter". Thus, according to his counsel his sister had expired before he had left for Karachi.

5. In. his affidavit, it has been stated by the learned counsel, for the appellant that he could not contact his cheat because he did riot leave his Karachi address with him. This speaks of the negligence of the appel lant. Even during the period of full one month. allowed to him to deposit rent he did not care to establish contact with his counsel. In the circum stances, I am of the view that either the appellant deliberately omitted to comply with the order of the learned Rent Controller or he was extremely negligent in defending the ejectment proceedings. Be that as it may there vas no reason beyond his control for which he could not comply with the direction of the learned Rent Controller. I, therefore, do not agree with the learned counsel for the appellant that his default was not willful.

6. As the order under appeal does not suffer from any legal infirmity the appeal is dismissed with costs. The appellant is, however, allowed three months' time to vacate the premises in dispute. Appeal dismissed.