' This appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, is directed against the order of the learned 1st Appellate Court passed on 5th June, 1973, whereby it accepted the appeal of the respondent and reversed the order, dated 9th March, 1973, passed by the learned Rent Controller, striking off the defence of the respondent and ordering his ejectment from the premises occupied by him.
2. The brief facts, for the purposes of this appeal, are that the appellant is the landlord and the respondent is the tenant of a shop located on Plot No, 45, in Morio Khan village, near the Airport, on a monthly tenancy of Rs,
50. In May, 1971, the appellant filed a rent application against the respondent seeking his ejectment on the grounds of default in the payment of rent, requirement of the premises for the personal use of the landlord and raising of unauthorised construction by the tenant. On 4th October, 1971, the learned Rent Controller passed an order under section 13 (6) of the Rent Restriction Ordinance, requiring the respondent to deposit arrears of rent and also future rent.
The future rent was required to be deposited before the 15th of the month following the month for which the rent was due. The rent for the month of November, 1971, being deposited by the respondent on 3rd January, 1972, instead of before the 15th of December, 1971, the applicant filed an application, on 2nd August, 1972, for striking off the defence of the respondent. In reply, the respondent urged two grounds for failure to deposit the rent of November in time. His first ground was that because of the war with India in the month of December, the normal life in the City of Karachi had become paralyzed, and therefore, it was not possible for him to deposit the rent. His second ground was that from 8th December, 1971, to 24th December, 1971, he was suffering from Eczema and confined to bed. In support of his latter ground he filed a certificate from the Assistant Surgeon, Civil Dispensary, Karachi Airport. In regard to the period from 25th December, 1971 to 2nd January, 1972, he submitted that the Courts being closed for winter vacation, he was unable to deposit the rent and as soon as the Courts opened on the 3rd of January he deposited the rent due.
3. The learned Rent Controller did not accept the objections of the respondent and accordingly struck off his defence and ordered his ejectment. The respondent accordingly preferred an appeal and the 1st Appellate Court considered that the respondent had been prevented from circumstances beyond his control in depositing rent for the month of November, 1971, in time. It accordingly reversed the decision of the learned Rent Controller. It is against this decision of the learned 1st Appellate Court that the appellant landlord has preferred this second appeal.
4, Mr. Nizamani, the learned counsel for the appellant, assailed the order of the learned 1st Appellate Court on 3 grounds. His first submission was that if there were any genuine ground for the failure of the respondent to deposit the rent due in time, he should have forthwith submitted those reasons, but he submitted his explanation for the delay on 3rd March, 1973, that is some 15 months after the default had occurred. The learned counsel submitted that where no explanation for failure to deposit rent in time is furnished, the failure should be deemed to be wilful 'default' for the purposes of the Rent Restriction law. In support of his contention, the learned counsel relied upon the decisions in Ghulam Muhammad v. Raj Begum (1) and Abdul Majid v. Sa`dullah (2). In the former case, it was observed by Inamullah, J. (as he then was) that "it was for the appellant when he knew that he had not deposited the amount within the time to make an application immediately indicating the reasons which were beyond his control to deposit the amount". In Abdul Majid's case Sajjad Ahmed Jan, J. Delivering the Judgment on behalf of the Division Bench, observed : "but to entitle the tenant to a condonation it seems imperative that he must without any avoidable loss of time offer to make good the payment, explaining at the same time the circumstances for the delay". In the instant' case, the failure of the respondent to immediately or within a reasonable A time to submit to the trial Court the reasons which prevented him from depositing the rent in time casts the dark shadow of doubt and suspicion on his subsequent explanation.
5, It was next submitted by Mr. Nizamani that the explanation furnished by the respondent is not genuine and from the evidence on record it is not established that the respondent was prevented by circumstances beyond his control to deposit the rent in time. As stated earlier, the respondent had taken a two-fold plea, namely, the plea of total confusion in the City on account of war, and the plea of his own illness. So far as the plea of war is concerned, Mr. Nizamani submitted that the contention of the respondent that on account of the war, life in the City had become totally paralyzed, was incorrect and although times were abnormal, necessary transactions were being conducted during this period. In support of his contention, the learned counsel relied upon the cross objections filed by him in the 1st Appellate Court, showing the number of deposits made by tenants in the Karachi Courts during this period. Those objections show that substantial number of deposits were made during the period from 1st December, 1971 up to 4th January, 1972. In Ilnd Appeal No, 252 of 1972. I have held that during the December, 1971, war with India life in Karachi had not become so paralysed that it was not possible or practicable for a tenant to comply with orders for deposit of rent. In any case, the war was only upto 16th December, 1971, when there was a cease-fire.
6. In regard to the plea of illness of the respondent, Mr. Nizamani submitted that firstly, the nature of illness of the respondent was not such as to preclude him from making the deposit of rent, if he was so (1) PLD 1962 Quetta 136 (2) p LD 1963 Quetta 16 minded, and secondly, even if his plea of illness be accepted, he admittedly, had other members of the family, who could have made the deposit. According to the medical certificate submitted by the respondent, he is stated to have been suffering from some Eczema, in consequence of which he was stated to be unable to move and was confined to bed. In Dorland's Medical Dictionary, "Eczema" has been defined as "An inflammatory skin disease characterized by lesions varying greatly in character, with gesticulation, infiltration, watery discharge, and the development of scales and crusts. The disease is frequently attended with restlessness and fever and other symptoms of constitutional disturbance, as well as by local itching and burning".
' A serve attack of Eczema thus could result in the confinement of a person to bed and consequently prevent him from attending the Court for the purpose of making a deposit. However, the medical certificate has not been proved and by itself it cannot be accepted. In Muhammad Yousuf v. S. M. Ayoob (1) their Lordships of the Supreme Court by Majority held that documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwritings of persons alleged to have signed or written them, even if such documents are brought on record and exhibited without objection. In the instant case, the signature and handwriting of the writer of the medical certificate have not been proved, and as such, though no objection may have been taken by the appellant to the production of this certificate, the medical certificate cannot be received in evidence. The fact that the applicant has other members of the family is admitted in the objections filed by him before the learned Rent Controller to the application of the landlord for striking off the defence of the tenant As such, even if it be conceded that the respondent was so ill that h could not personally make the deposit of rent, he could easily hay made the deposit through his other family members.
7. For the reasons stated by me above, I am of opinion that there was a wilful default committed by the respondent and that the learned. 1st Appellate Court reached an erroneous decision on a wrong approach to the issues before it. I would accordingly set aside the decision of the learned 1st Appellate Court and restore the order of the learned Rent Controller. The respondent should deliver vacant possession of the premises to the appellant within 3 months from the date of this Order.
(1) PLD 1973 SC 160