' The present appeal under subsection (4) of section 15 of the Rent Restriction Ordinance has been filed by Mst. Rabia to challenge a judgment dated 7th November, 1977 of Syed Fazal Hussain Shah, Additional District Judge, Karachi, whereby an earlier order of Mr. Sultan Ahmed Siddiquie, XIX Civil Judge and Rent Controller, Karachi was set aside. While the Controller had struck off the defence of respondent Yousuf for non-compliance with the order under subsection (6) of section 13 of the Rent Restriction Ordinance, the order of the Controller was on appeal set aside by the Additional District Judge. I have heard Mr. Omrani for appellant Mst. Rabia and Mr. Aftab Ahmed Alvi for respondent Yousuf.
' The brief facts of the case are that Mst. Rabia, the owner of a premises bearing No, 823/3 in Hussainabad, Federal '13' Area, Karachi, had filed an application under section 13 of the Rent Restriction Ordinance for eviction of her tenant. The respondent, on the ground of default in payment of rent. According to the application the respondent was in arrears of rent for 3 months, viz. From May 1973 to July 1973, aggregating Rs, 525 at the rate of Rs, 175 per month. On 2nd May, 1974, the Controller passed an order for deposit of arrears of rent and the current rents. The operative part of the order may best be stated in the original form. It reads as follows :- "The opponent is directed to deposit the arrears of rent from May 1973 to March, 1974, for 11 months at the rate of Rs, 175 (Rupees one hundred and seventy five only), amounting to Rs, 1,925 (rupees one thousand nine hundred and twenty-five only), in this Court before 15th June, 1974 ' The opponent is further directed to continue to deposit the future monthly rent commencing from April 1974 at the rate of Rs, 175 (rupees one hundred and seventy-five only), in this case in Court before 15th of each English subsequent calendar month as fall due, viz. Rent for the month of April shall be deposited before 15th May, 1974 and so on till the decision of this case."
3. It is an admitted case that the arrears of Rs, 1,925 was deposited on 11th June, 1974, and on this date, together with the arrears, a further sum of Rs, 350 was also deposited for the rent of months of April and May, 1974. A technical default had been committed so that the appellant/ landlord made an application for striking out the defence of the respondent/tenant. In the first instance, the respondent set up a case that no default had been committed. Such statement was made in writing on 27th July, 1974. Again on 13th September 1974, the opponent made another application, supported by an affidavit requesting the Court to condone the delay, if any in the deposit of arrears. In the affidavit in 3 support of this latter application, the respondent stated that on the date ' of hearing his Advocate had not been able to attend the Court as he was busy in some order Court at that time. He further stated that he was an old man, who -was illiterate and partially deaf.
He went on to state as follows :-- "I say I took that the rent, etc. Was payable in June 1974 and I say accordingly deposited the arrears, rent etc. In that month."
4. The learned Controller held the respondent guilty of default and struck off his defence. The Additional District Judge, however, took the view that in the circumstances of the case and in particular the conduct of the respondent, his plea as to a bona fide mistake could not be ruled out altogether. He agreed with respondent that the default had been caused due to misunderstanding.
5 The only point that arises in this case is whether the default committed by the respondent must inevitably result in his defence being struck off. Mr. Aftab Ahmed Alvi has drawn my attention to the . Case of Saeedan Bibi v. Ali Hussain (1) to contend that it is not necessary that every default must result in the extreme action of eviction. In the first of these cases the Advocate had committed a mistake in calculation and such mistake was condoned and in the other two cases a view has been taken that if there was substantial compliance with the terms of the order eviction should not necessarily follow. If a plausible explanation is offered on basis of bona fide mistake the Courts can condone the default. On the other hand, Mr. Khuda Bux Omrani has contended that old age is no ground for condonation of delay and that default having been committed the impugned order is not liable to displacement.
6. On consideration of the facts of this case, I find that the plea of the respondent as to misunderstanding cannot be ruled out completely. The fact of his having deposited the fell arrears as even the current rent on 1 1 the June 1974, viz. 4 days before due date for deposit of arrears would show that be intended to comply with the order. That the respondent is an old man, stated to be 75 years old by Mr. Aftab Ahmed Alvi has also not been controverted. It is quite possible that he misunderstood the order to mean that all the arrears and the accumulated current rent had to be deposited before 15th June. Patently his Advocate was not present at the time the rent order was passed and there is probability of the respondent having misunderstood the order. No circumstances exist relating to an inference that the default was wilful or caused by negligence. Mr. Khuda Bux Omrani has however, urged that it was the duty of the respondent to have asked his Advocate to check up from the Court record about the due date for deposit. To that extent one must say that the Advocate may not have found it necessary to check up the Court record because we may have relied on the information conveyed to him by his client. On the other hand, there are no circumstances to indicate that the respondent did completely follow the order of the Controller. Under these circumstances, inference of a wilful default is not necessarily deducible.
7. In the result this appeal is dismissed with no order as to costs. The records will be remanded to the trial Court for proceedings of the main case from the stage at which it had been parted with.