' This is a Second Appeal, filed by the tenant. The tentative rent order dated 15-7-1974 was passed by the Rent Controller in the ejectment case filed by respondent for the ejectment of the appellant from the premises in question. The tentative rent order was passed in the presence of the Advocate for the respondent whereas the appellant and his counsel were absent. The Rent Controller directed the appellant to deposit the arrears of rent at the rate of Rs,24 per month from October, 1970 to June, 1974 amounting to Rs,1,080 before 16-8-1974 and a direction for future deposit was also made. On 29-8-1974 the arrears as well as rent for July, 1974 was deposited. On 28-8-1974 an application under section 13(6) of the 1959 Rent Ordinance was filed by the respondent for striking off the defence of the appellant. By order dated 10-9-1979 the Rent Controller allowed the application, struck off the defence of the appellant and ordered his ejectment. The appellant filed Rent Appeal No,525 of 1974 but the same was dismissed by the learned II Additional District Judge, Karachi by order dated 21-8-1979. Being aggrieved, the appellant has filed this Second Appeal. 1 have heard Mr. Habibullah Samo, learned counsel for the appellant and Mr. A.R. Mirza, learned counsel for the respondent.
2. It was contended by the learned counsel for the appellant that the delay in the deposit of the arrears and the rent for July, 1974 was on account of unavoidable reasons. Before the Rent Controller, opposing the application for striking of the defence of the appellant, affidavits were filed not only by the appellant but also by Mr. Habibullah Samo who was appearing for the appellant before the Rent Controller also.
' The case of the appellant in his affidavit was that he was aware of the tentative rent order passed on 15-7-1974, on 15-7-1974 he fell sick with fever and he was in bed and on 7-8-1974 when fever did not break he went under the treatment of Dr.Muhammad Sadiq Rangoonwala who diagnosed his fever as 'Typhoid' and advised the appellant to complete rest in bed and strictly prohibited him from moving out. According to the appellant he remained under the treatment of the said Doctor from 7-8-1974 to 27-8-1974 but his fever did not break and therefore he changed his doctor and came under the treatment of one Dr.A.Rahim G.Ghandhi with effect from 30-8-1974 who also diagnosed his fever as 'Para-Typhoid' and advised him complete rest in bed for 10 days. It was further averred by the Appellant that on the night of 28-8-197.4 his Advocate Mr. Habibullah Samo came to the appellant's house and informed the appellant about the default application and inquired from the appellant about the deposit on which the appellant informed the Advocate that he had not been able to deposit the amount due to his illness. He then gave to. Mr. Habibullah Samo a bearer cheque drawn on Habib Bank Limited Metropole Branch and requested him to deposit the amount in Court on his behalf which was done by the learned counsel. He further stated that he was bedridden with Typhoid fever and had additionally gone very weak on account of prolonged illness since 1974. He further stated in his affidavit that he had sworn the affidavit in his house before the Oath Commissioner Mr. Abdul Wahid Qureshi who was brought to his house by Mr. Habibullah Samo. He has stated that he had no male member in his house except his pardahnashin wife and 4 small children of whom the eldest is 10 years old. He further averred that he has no brother, cousins or anyone else to whom he could entrust to pay or deposit the rent with the Nazir or to inform his Advocate. It was further averred that he arranged to deposit the arrears and the current rent at the first opportunity when his Advocate came to see him on 28-8-1974. The Advocate Mr. Habibullah Samo also filed his personal affidavit and confirmed the versions of the appellant. According to Mr. Habibullah Samo's affidavit the appellant was an old friend of the learned counsel since college days. It may be observed that there was a mistake about the month in the affidavits of the appellant and his Advocate inasmuch as instead of writing the figure '8' for August, the figure '7' was written. However, it is evident from the record that the references to dates in the affidavits of the appellant and Mr. Habibullah Samo were to August 1974 and not July, 1974. It may be observed that that affidavit of the appellant was supported by Medical Certificates of the two doctoRs, According to the learned First Appellate Authority although undue importance had been given to the typographical mistake about the dates by the learned Rent Controller and that he had not accepted the Medical Certificate on the ground that he was not produced before the doctor who issued the same, the First Appellate Authority took the view that sufficient and reasonable explanation for condoning the delay had not been given by the appellant. According to the First Appellate Authority even if the appellant was ill, according to the certificate he neither remained unconscious nor was 'he so seriously ill to have been confined to bed so that he could have forgotten completely about the order of the Court for depositing of rent and therefore there was hardly justification for non-compliance with the tentative rent order. The facts stated in the affidavit of the appellant which were corroborated by the affidavit of Mr. Habibullah Samo, Advocate, have not been controverted by the respondent and in my view, on the basis of the facts stated in the two affidavits which facts have not been controverted the case for condonation of delay has been made out by the appellant. The following facts have been proved by the affidavits of the appellant and his counsel:-
(i) From 5-8-1974 till 30-8-1974 the appellant was suffering from Typhoid and was under treatment of doctors and was confined to bed.
(ii) He was advised complete rest in bed during his illlness and strict medical orders were given to him not to move from the house.
(iii) His fever did not break till after 27-8-1974.
(iv) He had no elder male member in his house. His family residing with him comprises his pardah- nashin wife and 4 children of whom the eldest was 10 years old. He had no brothers and no cousins.
(v) He had no male person whom he could entrust and who could deposit the rent and inform his Advocate.
(vi) On 28-8-1974 Mr.Habibullah Samo came to see him and informed about the default on which a bearer cheque was given by the appellant to Mr.Habibullah Samo who encashed the cheque and deposited the amount with the Rent Controller.
(vii) The rent was deposited with the Rent Controller at the first opportunity which became available to the appellant when Mr.Habibullah Sarno visited him on 28-8-1974.
3. In view of the above uncontroverted facts, in my view, a case has been made out by the appellant for condonation of delay and his defence should not have been struck off.
' As a result Second Appeal No,358/79 is allowed but with no order as to costs. The matter is remanded to the concerned Rent Controller for disposal of the main case within 6 months of receipt of record to him.
' Learned counsel for the respondent informs that the property has since been sold by the respondent and as the appellant had already been ejected, possession of the premises has also been given to the purchaser. It is further ordered that no order for restitution of possession will be passed unless a final order is passed on merits and even then if an application is made for restitution, notice of the same will be given to the purchaser whose name and address will be supplied by the respondent.