' By this second appeal the appellant S. Asadullah Shah has sought reversal of the order dated 15- 8-1978 of the First Additional District Judge Hyderabad (Mr. Taj Muhammad Abro). By the impugned judgment the learned Judge set aside the order of the learned Rent Controller, dated 12th November, 1979, striking off the defence of the respondent Ram Chand and directing the latter to hand over vacant possession of the premises in dispute to the appellant.
2. The relevant facts leading to this appeal may briefly be stated as follows. The appellant is the owner of the premises in dispute which is a residential house situated at Hassan All Mansion Miani Road, Hyderabad, whereas the respondent is occupying the said premises as the tenant on the monthly rent which is not disputed. On 7th February, 1977, the appellant sought ejectment of the respondent from the above premises on the ground of personal requirement and filed ejectment Applicant No, 77 of 1977 in the Court of Civil Judge and Rent Controller, Hyderabad. During pendency of the ejectment proceedings the learned Rent Controller by order, dated 12-7-1977, called upon the respondent to deposit rent for the month of June and July before 15th August, 1977 and the future rent before 15th of the next following month. It is not disputed that the rent due for the month of July was paid by the respondent on 20th August, 1977 instead of before 15th August, 1977 as directed in the tentative order of the learned Rent Controller. He, therefore, moved the Rent Controller for condonation of the delay but without success. The learned Rent Controller, as stated above, by his order, dated 12th February, 1977 struck off the defence of the respondent and directed him to hand over possession of the disputed premises to the appellant within two months of the order. Aggrieved by this order, respondent went in first appeal which was heard and disposed by First Additional District Judge Hyderabad in his favour reverins the order of the Rent Controller. It is against the order of the First Appellate Court that this second appeal has been preferred in this Court.
3. Mr. K. A. Wahab was heard in support of the appeal whereas Mr. Niamatullah Qureshi made his submissions on behalf of the respondent.
4. That short point involved in this appeal is whether the default admittedly made by the respondent in depositing the rent arrears of the month of July was wilful or not. The plea taken by the respondent/tenant in this regard is that he had gone to Sukkur where he fell ill and, therefore, could not deposit the arrears of the rent in time and as such his default is not deliberate. He has relied on medical certificate to prove his contention of illness.
5. It was submitted by Mr. K. A. Wahab, the learned counsel for the appellant that as is clear from the certificate the respondent was not advised bed rest so that he was confined to bed and consequently could not move out for the purpose of depositing the rent arrears. He further stated that even otherwise the personal illness of the tenant has not been accepted by A Superior Courts as a good ground for condoning the delay in depositing the arrears of rent. In this connection he has cited three authorities : Pir Inayat Shah v. Agha Muhammad (1), Muhammad Jan v. Khadim Hussain (2) and Chaudhari Muhammad Ali & Co. v. Dr. Sirajul Haq and 2 others (3). These authorities undoubtedly support his view point.
6. Mr. Niamatullah Qureshi, the learned counsel for the respondent has frankly conceded to the legal position spelt out in the aforesaid precedent cases.
7. In view of the above discussion. I have no doubt in my mind that not only default in depositing the rent arrears for the month of July, 1977 has been established but also it has been proved that there was no lawful excuse for making the delay in depositing the arrears and hence the default was wilful. Accordingly I set aside the order of the first appellate Court and restore the order of the Rent Controller. However, the learned counsel for the respondent/tenant has prayed that the respondent/tenant may be allowed to vacate the premises in dispute on or before 31st December, 1983 to which Mr. K. A. Wahab the learned counsel for the appellant has no objection. Accordingly the respondent/tenant is directed to deliver vacant possession of the disputed premises to the appellant on or before 31st December, 1983.
(1) 1982 SCMR 1195(2)1973 SCM R 243
(3) PLD 1972 Quetta 5