1. ' This appeal is directed against order dated 28-8-1986, passed by learned civil Judge cum Controller, Quetta.
2. ' Brief facts are, that on 8-12-1982 appellant No. 1 and late Bashir Ahmed predecessor in title of appellants No. 2 to 7, filed an application for eviction of respondent from premises bearing Municipal No. 8-10-120 comprising of Khasra No. 18295/15215/7001/7003, situated at Kansi Road, Shaldara, Quetta, on the ground of default for 33 months and for personal bona fide requirement.
3. Respondent repudiated the claim and filed written statement on 21-3-1983. Initially on the objection regarding jurisdiction the trial Court framed following preliminary issues on 4-4-1983.
(i) Whether the property in dispute was leased out as rented land?
(ii) If the issue No.1 is decided in affirmative whether this Court has jurisdiction to adjudicate upon the matter?
4. ' In this behalf respondent furnished a list of witnesses on 12-5-1984. Statement of R.W.1. , Zahid Malik and respondent was recorded on 26-7-1984 and 28-8-1984. However, aforementioned 2 issues were decided in affirmative, and the trial Court by means of judgment dated 31-10-1984 declared that property in dispute falls within the purview of "rented land" as such Controller has jurisdiction to proceed with the matter.
5. ' Thereafter on the same day viz. 31-10-1984 following 8 issues were framed on the basis of pleading of the parties:-
1. Whether the applicants have sold half portion of premises in question i.e. 12500 feet alongwith raw machine to the respondent in consideration of Rs.60,000? If so, to what effect?
(2) Whether the respondent has paid Rs.65,400 in instalments to the applicants?
(3) Whether an agreement was executed between the parties on 3-5-1972?
(4) Whether the respondent has paid rent in advance to the applicants uptil 31-12-1982?
(5) Whether a sum of Rs.5,400 is already standing to the credit of the respondent with the applicant, if so, to what effect?
(6) Whether the respondent has failed to pay rent from March 1980 to November 1982?
(7) Whether the applicants in good faith required premises in question for their personal bona fide use and occupation?
(8) Relief?
6. ' Subsequently on 20-11-1984, additional issue relating to actual rate of rent was framed which is as under:-
(1) What is the actual rate of rent?
7. ' In the meantime in persuance of written application dated 8-11-1984, trial Court passed an order dated 20-11-1984 within the purview of section 13(6) of Ordinance VI of 1959, directing the respondent to deposit arrears of rent w.e.f. March 1980 as well as future rent at the rate of Rs.250 p.m. Appellant has concluded his evidence as regards merits on 16-4-1985. Case is now pending for evidence of respondent. It may be seen that on 8-8-1985, he submitted list of 7 witnesses, for proving his defence. None of these witnesses have been examined, so far.
8. ' However, on 4-3-1986 appellant No. 1 submitted an application pointing out that respondent has committed default in compliance of order relating to deposit of rent dated 20-11-1984. Reply to this application was filed by respondent on 20-4-1986 wherein it was asserted that all the amount due has been deposited in persuance of order dated 20-11-1984. Thereafter, on 4-5-1985 appellant through their counsel, again submitted an application pointing out that respondent had defaulted in payment of rent for the month of October, 1985. Prior to this trial Court on 3-5-1986, directed the respondent to produce challans pertaining to deposit before Naib Nazir for making necessary entries in concerned registers. Matter was then fixed for verification on 11-5-1986. It appears that even on 11-5-1986 respondent failed to register the challans with Naib Nazir of Court, as such fresh direction was made to him to do needful. It appears that necessary compliance was made on the same day, consequently Naib Nazir submitted his report.
9. ' On 7-7-1986 respondent filed reply to application dated 4-5-1986, besides an application explaining cause of delay in depositing rent on account of his ailment accompanied by Medical certificate dated 11-11-1985, was also submitted.
10. ' Appellant without filing its reply offered to argue the matter.
11. ' After hearing arguments, the trial Court by means of order dated 28-8-1986 condoned the delay, in depositing rent for the month of October, 1985 and rejected, application for striking defence of respondent. This appeal was thus filed on 8-9-1986 challenging aforementioned order passed by learned Civil Judge cum Controller, Quetta.
12. ' Mr. Khalid Malik, learned counsel for respondent at the outset objected to the maintainability of appeal, contending that direction for deposit of rent made in this matter was of tentative nature.
13. Since there was dispute between parties about rate of rent, therefore, ejectment cannot be directed by striking off defence even if default is allegedly committed until trial Court determines actual amount of rent payable by the tenant. In order to supplement objection to the maintainability of appeal, he has relied on the observation in case of (i) Ibrahim v. Muhammad Hussain PLD 1975 SC 457 and (ii) Mrs. S.T. Naqvi v. Mst. Subaida Begum 1981 CLC 933.
14. ' Mr. Iftikhar Muhammad, learned counsel for appellant vehemently urged that order refusing to stock of defence is determinative in nature, therefore, is clearly appealable. This contention is, however, supported by observation in following cases:-
(i) Rana Zahid Ali v. Ehsan Elahee, PLD 1977 Lah.
15. 538.
16. "It is now authoritatively established that the Rent Controller has no power to extend the time for making the deposit whether such time has been fixed by him under the powers given to him by subsection (6) or the time is fixed statutorily by the same provision. In these circusmtances two types of cases can be within the contemplation of the legislative. One is a case where in view of the default committed by the tenant in complying with the Order of the Rent Controller, the Rent Controller directs the striking off the defence and the consequent ejectment of the tenant. The other alternative is that the Rent Controller after coming to an erroneous conclusion that the tenant has not been in default within the meaning of that terms as explained in Ghulam Muhammad Khan Lundkhor v. Safdar All where it was held that the liberal interpretation that has been given to We. Word covers only default which are unavoidable or are due to causes for which the defaulter is in no way responsible, refuses to strike off the tenant's defence. For all practical purposes this type of order will be akin and analogous to an order dismissing the application of a landlord under section 13. This type of order will be an order virtually dismissing the application to strike off the defence. For the purposes of finality, therefore, no distinction can be made between the two types of orders which can be passed by the Rent Controller even under section 13(6)
17. Irrespective of whether it be an order of striking off the defence and ejecting the tenant or of refusing to pass such an order. The order falling in the second category cannot be treated to be an interlocutory order for the simple reason that if a different view on merits be taken by the appellate Court, it may be in a position to pass an order of striking off the defence of the tenant and directing his ejectment. The finality of order under section 13(6) should be judged from the point of view whether the appellate Court by reversing the finding of the Rent Controller can pass a final order terminating the proceedings of ejectment pending before the Rent Controller. I have no manner of doubt left that the order refusing to pass a order of ejectment by striking off the defence should be considered to be a final order which will give a right to the landlord to file an appeal against it."
(ii) Fatima Bai v. Fatima Begum, PLD 1977 Kar. 1007:- "However, the question arising at the stage where violation of the tentative order under section 13(6) is alleged and denied, the position is entirely different. In such case the statute provides that in case of non compliance with the order passed for deposit of rent provisionally fixed, the defence of the tenant is liable to be struck off and the landlord put into possession of the property without taking any further proceedings in the case. Thus, section 13 envisages the making of an order of eviction either on merits provided the tenant continuous to comply with the tentative order or under subsection (6) of section 13 by a summary procedure in case of default in compliance of the tentative order. Obviously, therefore, the question of non-compliance of the order under subsection
(6) of section 13 is a question germane to the dispute whether the tenant is liable to be evicted.
18. Such order from its nature if correctly passed may result in the decision of the entire controversy and may terminate the proceeding so far as the Controller is concerned. It, therefore, follows that such an order is a final order and an appeal to challenge its correctness would lie under section 15(3) of the Ordinance. In Muhammad Oomar v. Dr. Amina Ashraf (3) a learned single Judge of this Court held that an order passed by the Controller to substitute the purchaser of the building in dispute pending decision of the ejectment application, was neither interlocutory nor determinative of a matter merely incidental or collateral to the dispute and as such was appealable. A learned single Judge of the Lahore High Court construed the provisions of section 15(1) of the Ordinance in Zahid All v. Ehsan Elahi (4) in relation to this specific point and came to the conclusion that the order refusing to strike off defence is appealable or the simple reason that if a different view on merits be taken by the appellate Court, it may be in a position to pass an order of striking off the defence of the tenant and directing his ejectment.
19. ' In view of the above discussion, therefore, I find no substance in the contention that the appeal against the order passed by the Controller was not competent."
(iii) Hayat Ali v. Miss Aziza Mahmood, 1980 SCMR 298:- "In seeking leave to appeal the learned counsel for the petitioner contends that the impugned order of the Rent Controller is not determinative in the sense that it finally decides the controversy.
20. This necessarily involves the consideration as to the nature and scope of the order passed under the second part of the subsection keeping in view the meaning of the word 'default' occurring therein. As held in Ghulam Muhammad Khan Londkhor v. Safdar Ali, 6 in every case of non- compliance the question arises as to whether the default is avoidable or not. If it is avoidable then it cannot excuse non-compliance and the mandatory consequence follows that is, the striking off the defence. Again, if the default is unavoidable then the non-compliance is excusable in which case the Rent Controller can condone the non-performance of the direction. In assessing whether there is default or not the Rent Controller has to consider the explanation resting, PLD 1977 Lah. 538; PLD 1978 Lah. 1032; PLD 1975 SC 457; PLD 1977 Lah. 538; PLD 1977 Kar. 1007 and PLD 1967 SC 530.
21. On facts and in a given case his decision might be erroneous. If he holds against the tenant, the order, beyond doubt, is final as it leads to his ejectment. As such, this order is appealable; and again it is for the appellate Court to Judge as to whether the Rent Controller was right in holding that the tenant was guilty of default; and if he is not so held, he is absolved of the consequence of default, Vice versa if the Rent Controller decides against the landlord, can it then be said that such an order is not appealable however erroneous it may be as it does not conclude the proceedings?
22. This would mean putting a premium on right of the landlord to have the legality of the order determined in appeal, for in that eventuality if may be that the appellate Court might come to a contrary conclusion and hold the default to have been proved in which case his defence will be struck off. In either case there has to be an application of mind to the question of default which culminates in the passing of an order for the striking off the defence or the condonation of the non- compliance. The former leads to the ejectment of the tenant while the latter condones the default, But what is pivotal is that it concludes the controversy presented by the second part of the subsection. Accordingly, both the orders are to be treated at par in determining their nature for, if they are reviewed in appeal, vice versa conclusion can follow which gives to it finality. On this view of the matter the High Court was correct in holding that the appeal was competent, on the view taken in Rana Zahid All Khan v. Ehsan Ellahi and Mst. Fatima Bai v. Mst. Fatima Begum which we approve."
(iv) Muhammad Aslam v. State, 1986 SCMR 261.
23. ' This precise question came up for consideration of this Court in Messrs Fakhri Printing Press v. Mst.
24. Rubab Bai and others C.P.S.L.A. No.K-109, decided on 27th February, 1980, and it was held that the order of the Rent Controller passed under section 13(6) of the Ordinance refusing to strike off tenant's defence is as much appealable as the one striking out tenants defence. In view of the fact that this Court has already decided the question upon which leave was granted. Mr. Abdul Majid learned counsel for the respondent frankly conceded that he is unable to defend the point on which the second appeal filed by the respondent was allowed by the High Court. Since, as already held by this Court appeal against the order of the Rent Controller passed in this case was competent in law, the impugned Judgment of the High Court is set aside."
25. ' In view of aforementioned authoritative reports, I have no hesitation to conclude that objection raised by respondent is clearly fallacious. Consequently failure to strike of defence is equally appealable, as such present appeal is quite competent and maintainable.
26. ' Learned counsel for respondent next contended that when rate of rent is disputed between parties in that case, before striking of defence the Court should finally, determine amount of rent actually payable by the tenant. The argument is apparently contrary to spirit of section 13(6) of Ordinance of 1959. This aspect has also been exhaustively elucidated by Hon'ble Supreme Court in case of Mst. Akhtar Jehan Begum and others v. Muhammad Azam Khan PLD 1983 SC 1, relevant observations are reproduced:- "The plain reading of the above provision makes it abundantly clear that for the purpose of passing the order of deposit under it, the Controller has not to determine the question of quantum or rate of rent, finally if the same is in dispute, but to determine such amount "approximately". This is the clear import of the words underlined above. Further this excludes final adjudication of this question. In the premises the consequnce of non-compliance of such approximate determination is the summary disposal of the case, without taking any further proceedings ipso facto on the basis of such non-compliance by striking off the defence and passing the order of eviction. If the argument of the Respondent is accepted, then in every case the Controller would be competent to order ejectment of the question as to quantum of arrears of rent or rate of rent. In the face of the clear language employed, such cannot be the intent and effect of this subsection. Reference in this behalf may profitable be made to a passage from the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali. In this case the contention advanced was that the Controller was not bound to order eviction of the tenant even if in fact non-compliance of the tentative rent order was established.
27. But could extend the benefit of section 114 of the Transfer of Property Act of equitable principles, to relieve the tenant of forfeiture of tenancy, if it was shown to him that the tenant was not in fact in arrears of rent at the time of institution of the proceedings. In construing the true import of section 13(6) of the Ordinance, it was observed by late Hamoodur Rahman, J. (as he then was): "Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence.
28. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligation from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quite but also to co-relatively given special benefits and protections to tenants under certain conditions.
29. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with these conditions. Unless these conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell, page 285, 11th Edition)."
30. ' Similarly, when there was a dispute about the rate of rent between the parties the Controller determined the rate tentatively for purposes of section 13(6) and directed that this matter could be thoroughly proved in the main proceedings, when the parties adduced evidence in support of their respective claims. This approach of the Rent Controller was approved in Rustam G. Irani v. Javed Qureshi. In Mushtaq Hussain v. Muhammad Shafi, this Court repelled a somewhat similar contention in the following words:- "the order directing deposit of rent in its very nature under the statute aforesaid was based on a tentative view of the case and its obedience.
(1) PLD 1967 SC 530 (2) 1975 SCMR 200 (3) 1979 SCMR 496. ' could be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fides or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."
31. ' In view of the aforesaid we find no merits in the contention that the respondent could be ordered to be evicted only if it was established first that he had not paid the rent at the proper rate on adjudication of these questions by the Controller. The respondent was liable for this defence to be struck off on proof that he had failed to comply with the direction contained in the tentative order for deposit, for which he has given no explanation."
32. ' Respectfully following the dictum laid down in the above quoted report, I am inclined to hold that in the event of exercising jurisdiction regarding striking of the defence trial Court would not be bound to hold separate inquiry in settling exact amount of rent payable by the tenant, rather would be competent to decide the question of default on its own merits on the basis of tentative rent irrespective of the fact that the amount of rent was disputed. In the light of this discussion second objection also fails.
33. ' The main question, attacking the propriety of impugned order, revolves around non-compliance of Controller's order dated 20-11-1984 by respondent in depositing rent for the month of October, 1985. It is matter of record, that rent for the month of October, 1985 was factually deposited on 24- 11-1985. Learned counsel for petitioner vehemently urged that respondent wilfully defaulted in payment of rent for October, 1985. He further maintained that medical certificate dated 11-11-1985 being an afterthought, has been manipulated to cover said default.
34. ' On the other hand Mr. Khalid Malik learned counsel for respondent strenuously contended that circumstances explaining delay in depositing rent for the month of October, 1985 were explicitly set out in application dated 7-7-1986 which was accompanied by Medical Certificate dated 11-11-1984.
35. According to him, since there was no rebuttal to said application or medical certificate; therefore, trial Court had rightly condoned the delay.
36. ' It may be seen that question of failure of tenant to comply with Controller's order regarding tentative deposit of rent has been subject-matter of consideration before superior Court in numerous cases. However preponderant view has been that in the event of any lapse or omission on the part of tenant, penal consequences specified in section 13(6) of the Ordinance VI of 1959 must follow; Unless strong circumstances are made out justifying any such non-compliance.
37. Honourable Supreme Court had very elaborately and authoritatively discussed the import of section 13(6) of Ordinance VI of 1959 and meaning of word "default" occurring in said provision in case Ghulam Muhammad Lundkhor v. Safdar Ali PLD 1967 SC 530 at page 538. The observation in this report have been consistently followed. Relevant observation are reproduced:- "Applying this principle in the present case the only interpertation that can be given to the provisions of subsection (6) of section 13 of the Ordinance is that its words are mandatory arid the Court has no further discretion left in the matter, for, the tenant cannot be entitled to more than what the meaning of the words clearly import. But this does not mean that the Court is powerless to give a correct meaning to the word "default" used in this subsection. It will still be necessary for the Court to decide in each case as to whether there has, in fact, been a default. All the decisions, which have been cited, also show that the only thing that the Court have purported to do in cases of this nature is to determine the true scope and meaning of the word "defaulter" and to see whether such default has in fact been committed.
38. ' Now as to the meaning to be given to the word "default" in subsection (6) of section 13 of the Ordinance this much can safely be said that it cannot possibly excuse non-compliance which is avoidable. The most liberal interpretation that has been given to the word covers only defaults which are unavoidable are due to causes for which the defaulter is, in no way, responsible.
39. Applying these tests in the present case we find that the only excuse put forward by the appellant is that since he was living in a village of the Mardan District and had very often to go to his village home to look after his affairs he could not, in spite of his best intentions, fully comply with the order of the Court regarding the deposit of future rent. His default it is contended, was in no case wilful or contumacious, for, whenever he was in Lahore he made deposit and had in fact in this way cleared up all dues of the landlord. This, however, is clearly not sufficient.
40. ' The word "default" in Legal terminology necessarily imports an element of negligence. To establish default one must show that the non-compliance has been due to some avoidable cause for a person ought not be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word "default" should mean an act done in breach of a duty or in disregard of an order or direction."
41. ' Therefore, keeping in view the facts of instant case it may be assertained whether non- compliance by respondent in depositing rent for the month of October, on 24-11-1985 rather than by or before 15th November, 1985 was at all due to some unavoidable cause beyond his control.
42. Principle interpreting unavoidable cause are now well settled. However it would be profitable to refer some of the decided cases for appreciating treatment given by the Courts as regards effects of non-compliance of Controller's direction:-
(i) Muhammad Jan v. Khadim Hussain 1973 SCMR 243:- "Learned counsel for the Caveator has, however, drawn our attention to the fact that although on the 14th of January, 1972 and the 14th March, 1972, the Court hours commenced from 7-30 a.m. The petitioner on his own statement came to the Court at about 10-00 or 11-00 a.m. The delay in obtaining the permissiOn of the Court for making the deposit with the State Bank was thus due entirely to his own carelessness and was not due to any unavoidable cause. He could well have avoided the default if he had come early and obtained the permission of the Court in time to enable him to make the deposit with the State Bank on the 14th. His failure to do so was entirely due to his own negligence and, therefore, he cannot claim to within the principle laid down by this Court in the case of Ghulam Muhammad Khan Lundkhor.
43. ' There is substance in this objection and we are of the opinion that the petitioner could easily have avoided the default if he had gone to the Court and obtained the permission in time we see no reason, therefore, to interfere. This petition is accordingly dismissed."
(ii) 1979 SCMR 496, Nazir Ahmad v. Hola Ram 1985 CLC 41;
(iv) Ansari Brothers v. Holy Trinity Church Trust PLD 1971 SC 700;
(v) Muhammad Nazir v. S. Shaukat All 1982 SCMR 985.
(vi) Zia Ullah Shah v. Syed Riaz Ahmed, 1981 SCMR 538.
44. ' Mr. Khalid Malik learned counsel for respondent emphatically submitted, that medical certificate was filed by him on 7-7-1986 and appellant opted, not to offer any rebuttal to the same. Therefore, according to him said Medical Certificate, unequivocally established inability of respondent to deposit rent within due date.
45. ' Therefore, relying on the observation in case Sirajuddin v. Abdul Majid 1983 CLC 2069 it was argued that in view of respondents ailment the Controller rightly condoned the default in depositing rent for October, 1985.
46. ' Perusal of Medical Certificate shows that respondent is patient of diabetes. He was examined by the Medical Officer, Civil Hospital, Quetta on 11-11-1985 as an out door patient and advised bed rest for two weeks. No doubt sickness of a person in some cases can constitute an unavoidable circumstance. Nevertheless it would be only in those exceptional matter in which a person is completely prevented to perform functions of life. However, each case has to be considered on its own individual merits. Mere indisposition by itself would not be sufficient to divert, normal penal consequences prescribed by law under the Ordinance VI of 1959, thus, it would be incumbent on the person seeking indulgence to specifically establish sufficient cause concerning disability preventing him from complying order of the Court. Now, when facts and circumstances of this case are analysed, then sequence of event which had taken place before medical Certificate was actually furnished has to be looked into. Admittedly appellant moved, first application pointing out non-compliance on 4th March, 1986. Which though was replied on 20-4-1986, yet plea of illness was not raised.
47. ' On the contrary it was asserted by respondent that amount of rent stood deposited in compliance with the Contoller's order dated 20-11-1984. However, there was hesitation in producing challans before Court Nazir for making entry in concerned Rent Register. Repeated directions were evidently made by the trial Court in this behalf. Thereafter second application was moved on 4-5-1986 specifically alleging default on the part of respondent but reply was unnecessarily delayed. It may be seen that on 7-7-1986 while replying said application ground of sickness was raised for the first time, and simultaneously another application containing plea of illness accompanied by medical Certificate was filed. It is not understandable that, if respondent was really unwell during second week of November, 1985 of which he must obviously be aware then this important cause about delay in depositing rent for the month of October, 1985 was concealed even from the Court for more than 8 months. This situation appears more strange because respondent got an opportunity to explain this aspect when first application pointing out default as submitted by appellant on 4-3- 1986. This long silence on the part of respondent in peculiar circumstances makes his stand of illness sufficiently dubious. It is always obligatory for defaulting party to mention cause of his disability or inability in complying with the order of the Court at the earliest opportunity; otherwise apparently adverse presumptions are drawn which undoubtedly arouses suspicion. Therefore, subsequent explanation, appears to have been cooked up for covering omission or non- compliance. At this stage it would be appropriate to refer to observation in following cases which aptly apply in the circumstance! Of this case:-
(i) Haji Muhammad Taqui v. Sher Muhammad 1980 CLC 231.
48. "4 Mr. Nizamani the learned counsel for the appellant assailed the order of the learned 1st appellate Court on 3 grounds. His first submissions was that if there were any genuine ground for the failure of the respondent to deposit the rent due in time, he should have forthwith submitted those reason, but he submitted his explanation for the delay on 3rd March, 1973, that is some 15 months after the default had occurred. The learned counsel submitted that where no explanation for failure to deposit rent in time is furnished the failure should be deemed to be wilful, "default" for the purposes of the Rent Restriction Law. In support of his contention, the learned counsel relied upon the decision in Ghulam Muhammad v. Raj Begum and. Abdul Majid v. Sadullah. In the former case, it was observed by Inamullah J, as he then was, that "it was for the appellant when he knew that he had not deposited the amount within the time to make an application immediately indicating the reasons which were beyond his control to deposit the amount. In Abdul Majid's case Sajjad Ahmed Jan, J. Delivering the Judgment to a condonation it seem imperative that he must without any avoidable loss of time offer to make good the payment, explaining at the same time the circumstance for the delay." In the instant case the failure of the respondent to immediately or within a reasonable time to submit to the trial Court the reason which prevented him from depositing the rent in time casts the dark shadow of doubt and suspicion his subsequent explanation."
49. ' Syed Wazir All Shah v. Ghulam Rabbani 1983 SCMR 950.
50. "On the facts of the case, it cannot also be said that the respondents had condoned the default committed by the petitioner in depositing rent in the Court. In this behalf, the High. Court rightly noticed the fact that it was petitioner's own plea before the Rent Controller that he had deposited rent in Court in compliance with the earlier orders passed by him, but the receipts of payment were not available with him. In spite of the fact that the Rent Controller very rightly struck of petitioner's defence and ordered his ejectment. No exception can, therefore, be taken with the Judgment of the High Court. The petition is accordingly dismissed in limine."
(iii) F.A.O. No.10 of 1985 Shah Zaman v. Farakh Begum (decided on 2nd October, 1985 by Mr. Justice Ajmal Mian Actg. C.J.)
51. "5 It is true that from the Medical Certificate it appears that the appellant No.1 remained in the hospital from 10th October, 1984 to 14th October 1984. The question which further requires consideration is as to whether as a prudent man, the appellant No.1 could have caused the deposit of rent even before 14th October, 1984 before he was discharged from the hospital keeping in view the fact that two months earlier he had committed default for the month of June, 1984 for a period of 14 days, which was condoned by the learned Rent Controller on the ground of the s :me ailment with the observation that the appellant No.1 should be careful in future. It may be stated that the rent application has been filed on two grounds, namely, default and subletting. In reply to para. 3 of the rent Application. In which it has been averred that the appellant No.1 had sublet the tenement to appellant No.2 appellant No.1 has averred that the appellant No.2 is his servant working in the shop. It is, therefore, evident that the appellant No.1 had a servant through whom he could have caused the deposit of rent. It was not even pleaded by the appellant No.1 that he could not have arranged the deposit of the rent through somebody else. The learned rent Controller has taken into consideration the factum of the previous default, about two months earlier and its condonation on the condition that in future. The appellant No.1 would be careful. It has also been pointed out by her that the appellant No.1 immediately on commission of the default did not come forward with an application for the condonation of the delay on the ground of ailment, but waited till the filing of the aforesaid application by the respondent on 20th November, 1984 for striking of the defence. The above application for condonation of delay was not filed immediately after the filing of the above application, but took nearly three weeks to file, the above application."
52. ' In my view, the learned Rent Controller has exercised the discretion properly in the matter, which does not call for any interference by this Court in appeal. I am further of the view that the appellant No.1 failed to make out a case of unavoidable circumstances."
53. ' The upshot of above discussion is that subsequent explanation of respondent about his illness resulting in non-compliance of Controllers direction is apparently doubtful. Beside respondent the best was patient of diabetes. According to his own showing he was an out door patient and had himself attended the hospital on 11-11-1985 Nature of aliment as reflected from medical Certificate would not completely prevent respondent from performing or arranging to carry out necessary day to day functions. As such even if medical certificate was to be taken as a whole it does not prove complete disability of respondent from arranging deposit of rent. It was evidently obligatory for respondent to establish special circumstances of his inability or disability for non-compliance.
54. No such attempt was even made by him. In the circumstances it can be presumed that non- compliance by respondent was on account of any undesirable cause. Thus, impugned order is erroneous defective.
55. ' For the foregoing reason, the appeal is accepted order of learned Controller, dated 28-8-1986 is set aside and consequently defence of respondent is directed to be struck off.
56. ' However, since the respondent is an old tenant, who otherwise had been depositing rent in the past, besides premises in dispute is a commercial concern, therefore, based on the analgoy of observations in cases (i) F.A.O. No. 10/1985 Shah Zaman v. Mst. Farukh Begum Shaikh Aziz v. Sardar Muhammad Roshan 1982 CLC 2598 and Sheikh Muhammad Sharif v. Inayat Ullah etc N.L.R. 1983 Civil 439 and (iv) All Jan v. Shujaud Din PLD 1985 Kar. 698, I would allow nine months time from today, to respondent subject to condition, that he shall continue to deposit rent as directed by the Controller, if respondent fails to hand over vacant possession, of the premises on the expiry of nine months Rent Controller shall issue writ of ejectment without further notice to him.
57. ' Appeal is disposed of accordingly. Parties are left to bear their own costs.