1. ' SALEEM AKHTAR, J.--The respondent filed an application for ejectment against the appellant in respect of plat of land bearing No, 19, Plot B, sub-Block E, Nazimabad, Karachi on the ground that it is reasonably and in good faith required by the respondent for erecting a building on the said land and necessary sanction for erection has been obtained. The appellant denied the claim. The learned Controller by an order, dated 17-12-1978 passed under section 13(6) of Sind Urban Rent Restriction Ordinance directed the appellant to deposit Rs, '1,750 in Court as arrears from 1-7-1978 to 30-11-1978 within one month, and the future rent was to be deposited before 15th day of each succeeding month. The appellant did not deposit the rent. On 11-3-1979 the appellant applied for condoning the delay in deposit of rent. The application was supported by an affidavit of the advocate for the appellant in which he stated that on 7-12-1978 when the case was fixed he could not attend due to strike off the Advocates. He made inquiries afterwards but the file was not traceable and this state of affair continued for some time, when after winter vacation he came to know that the case was fixed for 17-1-1979. Thereafter, he remained under the impression that no rent order had been passed. On 6-3-1979 when the matter was fixed, the Reader of the Court informed him that order for deposit of rent had been passed. It was stated that as the order was not passed in his presence, and was not in his knowledge, non-compliance by the appellant was not deliberate or wilful. The learned Controller ordered that this application would be considered at the time when the respondent alleges any default in compliance with the order. On 16th April, 1979 the appellant filed an affidavit stating that the respondent's husband Nasir Ahmed approached him on 5-4-1979 and asked him to pay up the arrears of rent on the plea that he needed money urgently. Accordingly on 7-4-1979, the appellant paid Rs,3,375 towards rent for 10 months from 1-7- 1978 to 30-4-1979 @ Rs,375 p.m. This payment was made in the presence of the respondent at her residence and she gave him the usual receipt voucher signed by her in the presence of the appellant. Photo copy of debit voucher was filed along with the affidavit. On 14-11-1979 the respondent filed an application under section 13(6) of the Sind Urban Rent Restriction Ordinance alleging that the appellant has willfully and deliberately failed to comply with the order for deposit of rent, dated 17-12-1978, and, therefore, his defence should be struck off. In the affidavit the respondent denied that she had received Rs,3,375 in cash on 7-4-1979 or on any other date. She also denied to 'have signed the debit voucher produced by the appellant and stated that the signature on this debit voucher is forged and fabricated. The respondent filed the counter-affidavit, dated 17-2-1980 in which he reiterated that Rs,3,375 was paid as rent for 10 months as stated earlier. It was also alleged that besides this Rs:1,500 was paid in similar manner to the respondent on 1-9-1979 towards the rent for four months from 1-5-1979 to 30-8-1979 for which a receipt was executed by the respondent. Again Rs,1,875 was paid in similar manner to the respondent on 4-2- 1980 towards the rent for 5 months from 1-9-1979 to 31-1-1980 for which again receipt was executed in the same manner by the respondent. The appellant pleaded that in view of the payments accepted by the respondent out of Court she has waived the default and also her right to file an application for striking off the defence. The learned Controller by the impugned order allowed the application under section 13(6), struck off the defence and ordered for ejectment of the appellant.
2. ' Mr. Syed Inayat All the learned counsel for the appellant contended that as the respondent has accepted the entire rent out of Court she has waived the benefit conferred under section 13(6). It was further contended that the learned Controller should have recorded the evidence and decided the question of payment of rent on such evidence which may include other witnesses, as well as handwriting expert to prove forgery and that the decision merely on affidavit is incorrect and illegal. The entire thrust of argument of the learned counsel for the appellant is that the respondent has waived her right to avail the benefit of section 13(6). This conclusion is based on the question whether payment has been accepted by the respondent. The respondent has denied these payments. The admitted facts are that order for deposit of rent was passed on 17-12-1978 but it has not been complied with.
3. ' Mr. Syed Inayat All the learned counsel for the appellant has endeavored to show that this order was not passed in the presence of the Advocate for the appellant and the same was not known to him, therefore, the delay should have been condoned. The grounds for condoning the delay were set out by the appellant in the affidavits filed in support of his application for condo nation of delay which have already been stated earlier. Non-appearance on 7-12-1978 was not on a valid or excusable ground. Even if the learned counsel had chosen not to appear in Court there was nothing which could have prevented him from making inquiries about the order which had been passed and the next date fixed by the Court. If the Advocate had chosen not to appear which was surely not under the instructions of the appellant, the non-appearance was entirely at his own risk and consequence. From the order sheet it seems that on 7-12-1978 due to strike off the Advocates, the case was adjourned to 17-12-1978 for passing rent order. On that date the rent order was passed, and the matter was fixed for evidence on 23-12-1978, when the matter was again adjourned to 18-1-1979. If the Advocate had not attended the Court on 7-12-1978, on the next day he could have made inquiries and could have found out that the matter was posted for 17-12-1978.
4. The learned Advocate did not care to even find out the next date of hearing. The plea that file was not available cannot be accepted as there is nothing on record to substantiate it. In his affidavit it is stated that the case was fixed on 17-1-1979 which is not correct. The matter was first fixed on 17- 12-1978, then on 23-12-1978 and again on 18-1-1979. The matter was never fixed on 17-1-1979, and therefore, the question of acquiring knowledge on 17-1-1979 as pleaded does not seem to be correct. Even after acquiring knowledge about the date of hearing the learned counsel did not make inquiries about the previous proceedings till 6-3-1979 when according to him he came to know about the order for deposit of rent. He does not seem to have taken care to even look into the order sheet and inquire what proceedings had taken place from 7-12-1979 to 17-1-1979. This attitude can be termed nothing but gross negligence and on this basis the delay cannot be condoned.
5. ' Now coming to the next argument; the question of waiver depends upon the fact whether payments have been made by the appellant and accepted by the respondent. The plea of waiver can only be looked into if the appellant is able to establish that the respondent has during the pendency of the case voluntarily accepted the rent from time to time. The appellant has filed three receipts alleged to have been executed by the respondent which the respondent has denied. The learned counsel for the appellant has referred to various authorities to show that default can be waived. On the other hand Mr. Zia Qureshi has relied upon a host of authorities against this proposition. The learned Controller has disbelieved the appellant's plea that payments were made to the respondent. The learned Controller has given very cogent and solid reasons for coming to such a conclusion. The first receipt is dated 7-4-1979 for Rs,3,375 being the rent for 10 months from 1-7-1978 to 30-4-1979 @ Rs,375 per month. The learned Controller has very rightly pointed out that the admitted facts are that the rent is at the rate of Rs,350 p.m. And not @ Rs,375 p.m. Furthermore, the other discrepancy which has impressed the learned Controller is that even @ Rs,375 the rent for 10 months cannot be Rs,3,375, it should be Rs,3,750. This mistake is so obvious that one can point out to the discrepancy at the very outset, but the appellant has insisted on asserting the same and repeating in his affidavit time and again that Rs,3,375 being the rent for 10 months at the rate of Rs,375 p.m. Was paid. The appellant had written this receipt as admitted by him. The amount is not written only in figures but in words also. There is no explanation by the appellant how this discrepancy has arisen. This cannot be a calculation mistaken, and therefore, it casts serious doubt on the authenticity of this document. The other receipt is, dated 1-9-1979 for Rs,1,500 for rent from 1-5-1979 to 31-8-1979. Again in this receipt the rent has been calculated at the rate of Rs,375 p.m. But it has not been stated anywhere how and when the rent was increased from Rs,350 to Rs,377. In the absence of such a plea that during the intervening period the parties had compromised and the appellant had increased the rent which was accepted by the respondent, the receipt produced by the appellant does not create confidence. The third receipt is, dated 4-2- 1980 towards the rent from 1-9-1979 to 31-1-1980 at the rate of Rs,375 p.m. Besides the points raised earlier one fails to reconcile how is it that after the respondent had filed application for striking off the defence she would have accepted rent on 4-2-1980 and if such rent had been accepted in the normal course the appellant should have insisted upon the respondent to file proper application in Court showing receipt of rent instead of only relying on the alleged receipts. These facts go a long way to create doubt about the genuineness of the receipts.
6. ' The learned counsel contended that the Controller did not give full opportunity to the appellant for examining witnesses to substantiate the allegations made in the affidavits. It was further contended that the learned Controller should have sent the disputed documents to the Handwriting Expert or compared it himself under section 73 of the Evidence Act. The parties had full opportunity to file the affidavits and the relevant documents in support of their claim. This has been done. The appellant never applied to the Controller to produce any evidence in support of his claim, nor any application was made to permit the appellant to cross-examine the respondent. In the affidavit filed by the appellant he had not cited any one as a witness before whom the alleged payments were made. The only person mentioned was the husband of the respondent and before the Controller, the appellant, respondent and her husband had filed their affidavits. By looking to the facts and circumstances of the case, the authenticity of the receipts can be seriously doubted.
7. The contradiction and discrepancies pointed out earlier were sufficient material to give a finding on the question of subsequent payment of rent by the appellant. In these circumstances, it was not necessary for the learned Controller to have asked the appellant to produce any evidence or even to send the disputed receipts to the Handwriting Expert. If from the circumstances and facts of the case the Court is able to give his finding on the genuineness of a certain document it is not necessary to employ the machinery of section 73 of the Evidence Act. In these circumstances the finding of the learned Controller that no payment was made as alleged by the appellant does not require any interference. As the very basis on which the entire argument regarding waiver has been built up has not been established, various authorities cited by the learned Counsel for the parties to show whether a landlord can waive his right to apply for striking off the defence or not need not be considered. In the circumstances the appeal is dismissed. The appellant is granted time up to 31-12-1985 to vacate and hand over vacant possession to the respondent. The appellant shall continue to deposit rent for the period he remains in occupation which shall not exceed 31-12- 1985.