' This second appeal is directed against an order for the ejectment of the appellant, Hayat Ali from a house owned by the respondent, Mrs. Aziza Mahmud.
2. The appellant's ejectment has been ordered on an application, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, filed by the respondent. After the making of that application, on 17th May, 1977, the learned Rent Controller, who was seized of it, made an order, under the first part of subsection (6) of section 13 of the Ordinance, directing the appellant to deposit arrears of rent amounting to Rs, 10,800, before 16th June, 1977. The appellant, however did not do so before the stipulated date and on that date made an application, for extension of time. He explained that he could not deposit the arrears of rent in time due to his illness. His request, which was opposed by the respondent, was acceded to by the learned Rent Controller and he was allowed more time to deposit the arrears of rent.
3. Feeling aggrieved by the indulgence shown to the appellant in the matter of the deposit of arrears of rent, the respondent went in appeal before an Additional District Judge. The learned Additional District Judge was not impressed by the plea of illness raised by the appellant. He, therefore, while accepting the appeal, struck off his defence and ordered his ejectment.
4. Being dissatisfied with the order of the learned Additional District Judge, the appellant has filed this second appeal.
5. Learned counsel for the appellant contended that the appeal taken by the respondent to learned Additional District Judge was not competent, as such, the order passed thereon was not sustainable. He maintained that the order made by the learned Rent Controller for the deposit of rent was of provisional nature and was not appealable. He cited the case of Ibrahim v. Muhammad Hussain (1), to support his contention. This authority is, however, of no avail to him inasmuch as it relates to an order under the first part of subsection (6) of section 13 of the Ordinance whereas the order which was assailed by the respondent before the appellate authority was made under the second part thereof. As regards the order appealed against in the present case it has been ruled in the case of Rana Zahid Ali Khan and 5 others v. Ehsan Elnhee (2), that an order made under the second part of subsection (6) of section 13 of the Ordinance, against a landlord cannot be treated as an interlocutory order and it will give a right to the landlord to file an appeal against it. Similar view was expressed in the case of Mst. Fatima Ba Fatima Begum (3). I am, therefore, unable to agree with the learned counsel for the appellant that the appeal in which the order impugned herein was passed was not maintainable.
6. The next plea raised by the learned counsel for the appellant was that the default attributed to the appellant was not wilful and, therefore, his defence could not be struck off. He explained that the appellant remained ill from 11th to 16th June, 1977, and could not, therefore, deposit the arrears of rent before 16th June, 1977 as directed by the learned Rent Controller. He produced a medical certificate also in which it was stated by the doctor concerned that the appellant remained under his treatment from 11th to 16th June, 1977. The disease noted by him is "AC Renal Colic and fever".
The certificate also shows that he was confined to bed although it does not specify the period for which he was so confined. The learned Additional District Judge expressed doubts in regard to the authenticity of the certificate and he was not far wrong in doing so. The certificate was not produced by the appellant along with his application for extension of time which was submitted by his counsel on 16th June, 1977, the nature of the ailment has also not been disclosed in that application. There is no affidavit appended thereto. The respondent filed reply to the application on 3rd June, 1977 in which it was inter alia pointed out that his application was not accompanied by a medical certificate. It was thereafter that on 24th June, 1977, the appellant filed the said affidavit which had been issued on the same date. No explanation is forthcoming as to why the certificate was not obtained before 16th June, 1977, or on that date. In the circumstances, the medical certificate is not free from doubt.
7. Even if the certificate is taken to be correct; it is of little help to the appellant because it has not been stated therein that during the six days for which the appellant got treatment he remained unconscious or was otherwise not in a position to ask anybody else to deposit the rent in question on his behalf. As indicated above, it has been stated in the certificate that the appellant was confined to bed but it has not been clarified that he was so confined through the period of six days.
Thus, it has not been clearly demonstrated that the appellant's state of health was such as did not allow him to make timely deposit of the rent in dispute himself or through his counsel.
(1) PLD 1975 SC 457 (2) PLD 1977 Lah. 538 (3) PLD 1977 Kar. 1007
8. As stated at the outset, it was on 17th May, 1977, that the appellant was directed to deposit arrears of rent before 16th of June,1977, but he did not make the required deposit prior to the stipulated date. According to him, he remained ill from 11th to 16th June, 1977, but no explanation whatsoever has been furnished as to why he did not avail of the period of 25 days preceding the 11th of June, 1977, for making the deposit in question. There is nothing to support his plea of illness except a medical certificate. It was obtained and filed after considerable delay which has not been explained. The certificate does not say that it was physically impossible for him to ask his counsel or somebody else to deposit rent on his behalf. He has not even filed his own affidavit saying that for six days he was physically incapacitated as aforesaid. He has, thus, failed to establish that he could not comply with the direction of the learned Rent Controller for any reason beyond his control. It cannot, therefore, be said that the default on the part of appellant was not wilful.
9. Lastly, it was urged by the learned counsel for the appellant that since the learned Additional District Judge had not directed the deposit of rent by the appellant, he could not strike off his defence and order his ejectment. He relied on Abdul Ghafoor, v. Ahmad Kunhi (1), Major Feroze Din Khan and others v. Sh. Muhammad Amin (2) and Abdul Qayyum Ansari v. Salahuddin Qureshi (3), to support his plea. All these cases are, however, distinguishable from the case in hand. In the case of Abdul Ghafoor it was held that the order regarding deposit of rent made by a Rent Controller remains effective only up to the time of final determination of proceedings before him. In the case of Major Feroze Din Khan and others the view expressed was that when a Rent Controller makes a final order dismissing an ejectment application on merits, the authority hearing appeal against that order cannot strike off the defence of that tenant. In the case of Abdul Qayyum Ansari the appellate authority had struck off the defence of a tenant after it had dismissed the appeal and had thus lost seisin of the case. It was, therefore, ruled that as the appellate authority had become functus officio, it was not competent to strike off the defence. Thus, in none of the cited cases it was held that if the Rent Controller refuses to strike off the defence of the tenant for his noncompliance with his (Rent Controller's) direction regarding the deposit of rent and an appeal is preferred by the landlord against the order of the Rent Controller in this behalf and the appellate authority finds that the order of Rent Controller was not in accordance with law, it cannot, while accepting the appeal, set aside the order and strike off his defence. If the view taken by the learned counsel for the appellant is accepted, the result would be that an appeal against an order of a Rent Controller refusing to strike off the defence of the tenant would be of no consequence inasmuch as in the event of the acceptance of the appeal the appellate authority would not be able to do what the Rent Controller had erroneously failed to do. Such a course cannot be approved of because it, obviously, militates against the right of appeal recognized in the aforementioned cases of Rana Zahid Ali Khan and Mst. Fatima Bal.
10. In my view, therefore, the learned Additional District Judge was perfectly justified in striking off the defence of the appellant and ordering his (1) PLD 1969 SC 424 (2) PLD 1967 Lab. 966 (3) PLD 1974 Kar. 10 ejectment after having reached the conclusion that the order of the Rent Controller refusing to do so, was not sustainable.
11. There is no force in this appeal. It is, therefore, dismissed with costs.