' Appellant above-named, being aggrieved by order dated 29th October, 1980, of learned III Sr. Civil Judge and Rent Controller, Hyderabad, in R. C. Case No, 450/79. By which appellant's defence was struck off under section 13 (6), West Pakistan Urban Rent Restriction Ordinance, 1979, has preferred this appeal, on the following facts and grounds :- ' Appellant is tenant of the respondent in respect of premises No, 0/711046, situated in Nihlanjo-pir Hyderabad, at agreed rent of Rs, 100 p. m. Respondent filed ejectment application under section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959, on ground of default and on the ground of personal and bona fide need, in the Court of learned Rent Controller who passed tentative rent order dated 5th March, 1980, for depositing arrears of ref_ t from May, 1979 to February, 1980, at the rate of Rs, 100 p. m on or before 30th April, 1980, and appellant was further directed to deposit further rents on or before 10th of every succeeding month from 1st May, 1980, till disposal of the said ejectment application.
3. Respondent above-named filed application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, on 20th May, 1980 for striking off defence of the appellant on the ground that appellant committed default of the tentative rent order by depositing rent for the month of April, 1980 on 12th May, 1980 instead of on or before 10th May, 1980. The appellant filed his objections to the said application, in which he stated, that on account of his illness from 8th May, 1980 upto 11th May, 1980, he was prevented from depositing the said rent in time and in support of his said contention, produced medical certificate of Medical Officer, V. J. General Hospital, Hyderabad. Appellant also filed affidavit in support of his objections.
4. Learned Rent Controller after hearing the learned Advocate of both the parties, allowed respondent's application under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959, vide his impugned order dated 29th October, 1980 and struck off the defence of the appellant and granted respondent's ejectment application as prayed. The appellant above-named being aggrieved by the said impugned order dated 29th October, 1980 has preferred this appeal, on the grounds mentioned in the memo of appeal.
5. The learned Advocate for the appellant in support of his above appeal submitted, that delay of 2 days in depositing the rent for the month of April, 1980 was due to reasons beyond the control of the appellant, i. e. His illness, for which appellant produced medical certificate and as such learned Rent Controller has erred in coming to conclusion, that the said delay was willful and consequently struck off the defiance of the appellant. The learned Advocate for the appellant further submitted, that this was a fit case for condoning delay, but the Rent Controller failed to exercise the discretion vested in him, in this connection and as such, they said order, is liable to be set aside, by this report.
In support-q-this contention of his, the learned Advocate for the appellant relied upon the case reported in PLD 1979 Kar.
628.
6. The learned Advocate for the respondent on the other hand submitted that order dated 4th October, 1980, of the Rent Controller, is based on cogent reasons. The learned counsel for respondent further submitted, that default committed by appellant was wilful and medical certificate produced by appellant does not show, that he was completely bed-ridden and as such learned Rent Controller was fully justified, by relying on PLD 1972 Quetta 5 and PLD 1976 Kar. 105 in allowing respondent's application under section 13 (6) of the Ordinance in question. The learned Advocate for the respondent further relied upon cases reported in 1981 SC MR 531 thkd 799 and PLD 1981 Kar.
739.
7. I have carefully considered the above submission made by the learned Advocates of the parties and have gone through the application of respondent under section 13 (6) of the Ordinance and affidavit filed in support thereof as well as through the objections filed by the appellant and the impugned order dated 29th October, 1980, of the Rent Controller and the authorities cited by both the learned counsel, before me.
8. It may be noted, that appellant in compliance with the tentative rent order dated 5th March, 1980 deposited all arrears in time. It is also admitted position, that alleged default in respect of deposit of rent for the month of April, 1980 is only for 2 days, and appellant along with his objections filed his personal affidavit as well as medical certificate in support of his contentions. It is also admitted position, that respondent did not file any counter-affidavit to the affidavit of the appellant in which in para. 6, the appellant asserted that he was seriously ill and was confined to bed from 8th May, 1980 till 11th May, 1980; it is also admitted position that appellant deposited rent for the month of March, 1980, also in accordance with the tentative order.
'
9. Keeping in view the above admitted facts, I have gone through the impugned order dated 29th October, 1980, of the learned Rent Controller and find that the learned Rent Controller has not disbelieved the assertion of the appellant, that he was sick, but on the basis, the appellant did not asserthat he has no other relation, etc. To deposit the rent in Court, when he was sick, came to. The conclusion on the basis of cases reported in PLD 1972 Quetta 5 and ,PLD 1976 Kar. 105 that appellant failed to establish that non-deposit of rent for the 'month of May, 1980, was due to reasons beyond his control, It may be noted, that it was not the case of respondent, that appellant had some near relation, who could have deposited the said rent, on his behalf. The learned Rent Controller also failed to take into consideration, that respondent did not file any counter-affidavit to affidavit dated 27th August, 1980 of the appellant and did not deny averment made by appellant in para. 6 of his said affidavit. In view of this, averment made by appellant in para. .6 of his said affidavit unrebutted, that appellant was bed-ridden from the May, 1980 till 11th May, 1980, and consequently appellant's assertion, that he was prevented frond depositing rent for the month of April, 1980, till 12th May, 1980, for the reasons beyond his control, stand proved and as such it cannot be said, that appellant committed wilful default of the tentative rent order in question.
10. The finding of learned Rent Controller, that appellant was not prevented by reasons beyond his control to deposit rent in question, on the basis, that appellant did not assert, that he had no other male relation, etc. To deposit the rent in .Question in Court, is misconceived, especially when respondent has not at all even alleged, that appellant has male relations and/or friends, who could have deposited the rent for the month of April, 1980 in time. In view of this, the reliance placed by learned Rent Controller on authorities cited by him in his impugned order, have no reference to the facts of present case and authorities cited by the learned Advocate for respondent before me, do not help the contention of the, learned Advocate for the respondent before me, as same are based on different facts.
11. In view of my above conclusion and findings, I allow the above appeal and set aside impugned order dated 29th October, 1980, of the learned Rent Controller and remand back the case to the learned Rent Controller, for disposal on merits, in accordance with law. In view of the facts and circumstances of, the case, I pass no order as to cost.