' This appeal is directed against the order of District Judge, Karachi, dated 26-3-1978, whereby he confirmed the order of the learned Rent Controller passed in Rent Case No, 4214 of 1976, striking off the defence of the appellants for non-compliance of the order of deposit of rent dated 3-7-1977.
' The facts giving rise to this appeal are as under :-
2. The respondent landlady instituted a rent application for ejectment of the appellants from the premises bearing No, 22/E, Mohammad Ali Memorial Co-operative Housing Society Limited, Karachi, on the grounds of default in payment of rent and bona fide requirement. The default in the application was alleged from 1-6-1976 till the filing of the ejectment application in Court on 13-10- 1976. After filing of the written statement by the appellants on 14-3-1977 the case was fixed on 19-5- 1977, by the Rent Controller for filing of Rent Account by the parties. On this date only respondent filed his rent account and the case was adjourned to 26-5-1977 for filing of rent account by appellants on 26-5-1977 the case was again adjourned to 3-7-1977. On 3-7-1977 only respondent's Advocate appeared before the Rent Controller while appellants and their counsel remained absent. The Rent Controller after considering the rent account filed by respondent and the pleas raised in the written statement by the appellants directed the latter to deposit in Court a sum of Rs, 16,900 as arrears of rent upto 30-6-1977 before 31-8.1977 and further monthly rent in Court before 15th of each month till the final disposal of the case. It is an admitted position that no rents were deposited by the appellants in compliance with the above order of Rent Controller dated 3-7-1977, whereupon on an application made by the respondent under section 13(6) of the Ordinance, the defence of the appellants was struck off on 3-11-1977. On appeal the District Judge confirmed the order of Rent Controller striking off the defence of the appellants in the case while dismissing the appeal of appellants on 26-3-1978. The appellants seek to challenge this order of District Judge, Karachi. I have heard Mr. Z. C. Valiani, Advocate for the appellants and Mr. G. H. Malik, Advocate for the respondent.
3. It is contended by Mr. Z. C. Valiani, the learned counsel for the appellants that although no deposit was made in compliance with the order of the Controller dated 3-7-1977 there was no wilful default on the part of the appellants so as to entail a summary ejectment under section 13(6) of the Ordinance. To demonstrate that the default in depositing the rent in Court was not deliberate and wilful the learned counsel mainly relied upon the personal affidavit of Mr. B. B. Huda, Advocate filed in support of application dated 12-9-1977 submitted to the Rent Controller for extending time for deposit of rent in Court by two months. As the affidavit of Mr. B. B. Huda, Advocate, is the sheet anchor of appellants' case, it will only be appropriate to reproduce the same here before considering its effect. The affidavit is as follows :- "I, Babu Bhai Huddah, Advocate, Muslim, adult, resident of Garden East, Karachi do hereby solemnly affirm as under :-
(1) That I appear as an advocate for the opponents in the above matter and I was conversant with the facts of the same.
(2) That I was in London (UK) from 4th June, 1977 till 9th July, 1977, during my vacation and Mr. Ismail the opponent No, 2 was also out of station on 3-7-1977.
(3) That my assistant noted the date of hearing being 24-10-1977 and as such I further did not contact my client's for deposit of rents as ordered by this Honourable Court on 3-7-1977.
(4) That I was served with an application by other side for anti-dating the hearing and while I was going through the case filed on 10-9-1977, I came to know of rent orders passed by this Honourable Court on 3-7-1977.
(5) I did try and contacted the party concerned but the time for the deposit of rent for the month of June, 1977, as well as the orders of Rs, 16,900 has already expired.
' This Honourable Court may be pleased to extend the time by two months in the interest of justice and decide the above case on the merits.
(6) What is stated above is true to my knowledge and belief.
'It will be noticed that according to affidavit of Mr. Huda he proceeded to London on 4-6-1977 and stayed there upto 9-7-1977, while on 3-7-1977 the appellant No, 2 was also out of station. It is further stated that after coming back from London he did not contact the appellants as his assistant had informed him the next date in the case as 24-10-1977. According to the affidavit it was only on 10-9- 1977, when he was inspecting the file after having received a notice from the Court for anti-dating the hearing of the ejectment case, that he came to know of the order of Rent Controller dated 3-7- 1977, whereby the appellants were directed to deposit the rents in Court. It was on the basis of the aforesaid grounds that Mr. Z. C. Valliani wanted me to hold that the default committed by the appellants in complying with the order of Rent Controller dated 3-7-1977 was not wilful and as such the defence of the appellants should not have been struck off by the Controller on account of non- compliance of the said order. The argument has not impressed me at all. The grounds disclosed in the affidavit of Mr. P. B. Huda, Advocate, in support of application dated 12-9-1977, were hardly sufficient to condone the default in the case. It is surprising that while moving the application dated 12-9-1977 before the Rent Controller for extending time for deposit of rents in Court on the ground that the appellants were not aware of the order for deposit of rent dated 3-7-1977, the appellant made no effort to deposit the arrears of rent upto January, 1977 and the rent for July, 1977, for which defaults had already taken place and also the rent for August, 1977 for which still two days' time was available to appellant to make the deposit. Such effort, in my view, on the part of appellants would have been only logical in view of the ground taken in the application. To say the least the case represented an example of gross negligence on the part of appellants in pursuing the case and the Courts below were fully justified in not accepting the explanation offered by him as sufficient to condone the default. The learned counsel then attempted to argue that the appellant No, 2 was seriously sick and bed-ridden and as such was unable to comply with the order of Controller. There is nothing on the record in support of this contention and the affidavit of Mr. B. B. Huda, Advocate, which is the only material in support of application dated 12.9-1977, does not mention of the sickness of appellant No,
2. The contention accordingly cannot be accepted.
The learned counsel relied upon the cases of Hashim Khan v. Ghulam Nabi (1), Saeedan Bibi v. Ali Hussain (2), Mst. Bachi Bai v. Ghulam Abbas (3) and Jalal Din v. Azizuddin (4), in support of his contention. These cases hardly have any bearing on the facts of the present case.
4. Mr. Z. C. Valliani next contended that in any case the entire arrears of rents and current rent for December, 1977, amounting to Rs, 24,700 were paid, {{FOOT NOTE}}
(I) 1971 SCMR 112 (2) 1975 SCM R 261
(3) PLD 1972 Kar. 278 (4) PLD 1968 Lah. 436 {{FOOT NOTE}} ' by the appellants to the respondent in Court on 17-12-1977 during the pendency of the first appeal before the District Judge, Karachi, and which was accepted by the respondent directly from the appellants and as such the default if any stood waived and, condoned by the respondent. The contention is equally devoid of any force. The appellants filed Ist Rent Appeal No, 501 of 1977 before the District Judge, Karachi, against the order of Controller dated 3-11-1977 striking off their defence in the rent case, on 3-12-1977. The learned District Judge while granting the stay in the appeal on 12-12-1977 had passed the following orders:- "Mr. Fakhruddin for the appellants is perokar. He wants two days' time to deposit the rent. Rent to be deposited on 17-12-1977. Stay upto that time."
' It was in consequence of this order that on 17-12-1977, when the parties appeared before the learned District Judge, the appellants instead of depositing the amount in Court offered the same to the respondent which was received by her counsel. The deposit/ payment of Rs, 24,700 by the appellants in Court on 17-12-1977 towards rent was thus a condition for grant of stay in appeal and had no bearing on the default already committed by the appellants in complying with the order of Rent Controller dated 3-7-1977. In my view acceptance of rents by respondent in these circumstances cannot give rise to any waiver or estoppel against the respondent. No other point was raised.
5. In view of the above discussion, I dismiss this appeal with costs but allow for months' time to appellants to vacate the premises.