1. ' This Second Appeal is directed against the decision dated 3rd July, 1977 of the IV Additional District Judge, Karachi dismissing the First Appeal of the appellants and upholding the order dated 16th March, 1976 of the Rent Controller No, H, Karachi, striking off the defence of the appellants and ordering their ejectment in Rent Case No, 2336/74.
2. ' The facts leading upto the filing of this appeal are as under :- ' The respondent is owner and landlord of property bearing Survey No, 65/1-GRW, Lawrence Road, Karachi and the appellants are tenants in respect of a portion of land measuring 16 feet x20 feet of the plot, on monthly rental of Rs,
7. On 12th September, 1974 the respondent filed rent application under section 13 of the Urban Rent Restriction Ordinance, 1959 before the Rent Controller for ejectment of the appellants on the grounds that they had raised unauthorised and illegal constructions over the rented land thereby infringing the terms and conditions of the tenancy and that they had failed to pay or tender rent from September, 1959 to 31st July, 1974 and they were liable to pay Rs, 1,253 as arrears of rent.
3. ' The appellants in their written statement denied both the allegations stating that the construction had existed since 1948 and had been made with permission of the previous landlord. They further denied that they had failed to pay rent or that they were liable to pay arrears of rent amounting to Rs, 1,253.
4. On 13th May, 1975 the learned Controller passed a tentative rent order directing the appellants to deposit all the rent due from them from 13th September, 1971 to 30th April, 1975 at the rate of Rs, 7 per month in two equal instalments, one payable before 15th of July, 1975 alongwith future rent, and the second instalment payable before 15th August, 197 also alongwith the future rent. They were further directed to deposit future monthly rent at the aforesaid rate till disposal of the case, before the 15th of each calendar month.
5. ' On 11th December, 1975 an application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was made by the respondent stating that the appellants had failed to deposit the arrears of rent in compliance with the order of the Controller inasmuch as they did not deposit the first instalment on account of arrears of rent before 15th July, 1975 and praying that their defence be struck off.
6. ' On 16th January, 1976 appellants No, 1 filed counter-affidavit himself and on behalf of his mother.
7. Appellant No, 2 admitting the default in depositing arrears of rent etc. In compliance with the order dated 13th May, 1975 of the Controller, but further stating that the default was due to his serious illness due to which he was confined to bed from 30th June, 1975 to 13th August, 1975. The aforesaid affidavit was supported by medical certificate of Dr. Atiq Ahmad Qureshi, Physician and Surgeon dated 13th August, 1975.
8. ' The respondent filed affidavit in rejoinder dated 26th January, 1976 stating that appellant No, 1 was not seriously ill as alleged by him and the medical certificate in support of his alleged illness was wrong and not admissible. He further stated on solemn affirmation that he had seen the appellant several times during the alleged period of illness and that the story about his illness was a false defence to application for striking off his defence. The first Rent Controller, Karachi by his order dated 16th March, 1976 did not accept the reason given by appellant No, 1 for the default being due to circumstances beyond the control of the appellant and did not accept the medical certificate as sufficient for supporting the plea raised by appellant No,
1. He arrived at the finding after discussing the material on record, namely, the affidavits of the parties and giving sons for arriving at the aforesaid finding.
9. ' The appellants then filed appeal No, 233/1976 in the Court of District Judge, Karachi which was heard and decided by the IV Additional District Judge on 3rd July, 1977. The First Appellate Court dismissed the appeal and upheld the order of the Rent Controller after considering the material on record and the argument of the counsel of the parties.
10. ' The appellants have assailed the impugned order of the First Appellate Court upholding the order of the learned Controller on the grounds that the appellants did not commit wilful default inasmuch as the appellant No, 1 failed to deposit the first instalment of arrears of rent by the due date due to his illness which was a circumstance beyond his control.
11. ' On the other hand, it is contended by Mr. Burney, the learned counsel for the respondent that there being concurrent findings of the Rent Controller and the First Appellate Court on the fact of commission of the default the aforesaid finding cannot be set aside in second appeal by the High Court.
12. ' The learned Rent Controller arrived at the finding that the default was wilful by considering the facts that the appellants instead of depositing the first instalment of the arrears of rent before 15th July, 1975 deposited the same on 15th August, 1975 and likewise the rent for the month of May and June was deposited on 15th August, 1975 instead of being deposited by 1st July, 1975, respectively.
13. He further observed that the aforesaid default was admitted by appellant No, 1 in his counter- affidavit but he had taken the plea that it was neither wilful nor deliberate and was caused by his illness as he was confined in bed from 30th June, 1975 to 13th August, 1975. He further observed that the medical certificate is not sufficient proof that it was beyond the control of appellant No, 1 to get the rent deposited by due date in the Court when he could approach Dr. Qureshi for his treatment he could well have gone to the Court to deposit the rent. He further was of the view that there was nothing in the medical certificate to show that the appellant No, 1 was an indoor patient in the dispensary of Dr. Qureshi which was in New Lyari. The learned Additional District Judge also observed that there is nothing in the certificate indicating the place where the appellant was treated by the Doctor, and the private clinic of the doctor is in Federal B Area, a long distance away.
14. He also considered that the appellant could have informed his Advocate about his illness by post and sent the amount of arrears of rent for being deposited through the Advocate. The learned 1V Additional District Judge supported the finding of the Rent Controller and also observed that it was only when application for striking off his defence was made before the Controller that the appellant considered it fit and proper to file counter-affidavit taking defence of his illness as an afterthought.
15. If the appellant had been really ill then firstly he could have made an application to the Controller requesting for extension of time or at least submitted the medical certificate which is dated 13th August, 1975 to the Court immediately when he was well enough to go out and before the respondent filed his application praying that the defence of the appellants be struck off. I see no reason to disagree with the finding of fact about the default in payment of rent arrived at concurrently by the Courts below.
16. For the reasons given above, the Courts below have concurrently held that the appellant had committed default in the payment of rent and that the explanation given by him does not reveal circumstances beyond control of the appellants. It is also very clear that no attempt was made to explain why the first instalment of arrears of rent were not deposited in the period preceding the alleged illness of appellant No,
1. It is also apparent that no effort was made to get the period for depositing the first instalment of arrears of rent extended by the Court. The very fact that the plea with regard to illness was raised only after the application for striking off the defence was filed indicates that there was wilful negligence on the part of the appellant. The application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 as already stated, was filed on 11th December, 1975 whereas the default in depositing the first instalment of arrears of rent was made on 15th July, 1975. In this view of the matter it is apparent that there was no alternative for the Rent Controller but to strike off the defence of the appellants and pass the order of eviction and no ground for interference exists. This appeal must fail and is hereby dismissed. The appellant however is allowed two months' time to hand over vacant possession of the premises subject to his continuing paying rent before the 15th of each future month.