1. ' This Rent Appeal under section 21. Of Sind Rented Premises linance, 1979 has been filed against the order dated 17-12-1985 of h Senior Civil Judge/Rent Controller (West) Karachi, whereby he struck off the defence of the appellant under section 16(2) of Ordinance and directed him to handover the vacant possession of premises to the respondent within 30 days of the passing order. . ' Rent Case No,511 of 1985 was filed by respondent Abu Bakar an against the appellant Muhammad Yasin on the ground of default payment of rent from 1-8-1984 to 31-1-1985 'amounting to Rs,2,400 I also some arrears, the total to the extent of Rs,3,275. A written tement was filed. . ' During the pendency of the Rent Case an application under tion 16(1) of the Ordinance, was moved by the respondent on 3-1985. The Rent Controller passed a tentative rent order on 8-1985 by which' the appellant was directed to deposit the arrears rent amounting to Rs,5,675. He was directed to deposit future t at the rate of Rs,400 per month on or before 10th of succeeding ander month till the disposal of the case. On 23-9-1985 an application ler section 16(2) of the Ordinance was moved by the respondent which it was stated that the opponent has committed default as he not deposit the current rent of August, 1985 till 10-9-1985 and ) failed to deposit rent upto 25-9- 1985, therefore, his defence be uck off. The objections were filed by the appellant in which it is ted that appellant was not aware of any tentative order passed by Court as he is a lunatic and he is incapable to defend his, case. Is also stated in the objections that the appellant was admitted in tental hospital from 21-7-1984. The Rent Controller did not accept contention and passed an order section 16(2).
2. ' Mr. Khalid Dawoodpota counsel for ap, Pliant contented that an aication was made before the Rent Cwitealler on 21-10-1985 uesting therein that appellant is lunatic and he may be allowed to 'end the case through his 'next friend and such application was allowed. It is argued that even this appeal is being defended through his next friend. It is contended that on 12-10-1985 the arrears were deposited on behalf of the appellant and there is only one month's delay which is technical one. He was referred to the cases reported in PLD 1967 SC P 530, 1983 SCM R 471 and PLD 1975 Lahore 1563.
3. ' Mr. R-hanul Hassan Farooqui for the respondent submitted that illness is not ground for non deposit of the rent and plea of illness is not supported by a Medical Certificates. It is contended that only production of Certificate is not sufficient. He has referred to the case reported in 1982 SCM R 1195, 1980 CLC 676, 1983 SCM R 471, 1984 CLC 1559, 1982 CLC 430 and 1981 CLC 137.
6. The Rent Controller has disbelieved the Medical Certificate and observed in the impugned order that appellant was found to be in the shop and accepted the summon inspite of that there is noncompliance of tentative rent order. The tentative order was passed on 25-8-1985 whereas the case of appellant is that he was in hospital from 21-7-1984 to 4-8-1984 and was advised complete rest for three months. In Rent Case Number 1373/84, the matter was compromised and rent was fixed @ Rs,200 per month for each shop. The case was disposed of on 9-2-1984 in terms of compromise. This rent case was filed on, 2-2-1985. The tentative rent order was passed on 21-8- 1985 and in terms of this order the arrears were to be deposited within 30 days which has admittedly not been done but on 21-10-1985 i,e, after delay of one month on behalf of appellant Rs,6875 and on 9-12-85, Rs,1200 were deposited. In application filed under Section 16(1) on 26-3- 1985 the total amount by that time claimed by the respondent landlord was Rs,3675. The Rent Controller directed appellant to pay arrears of Rs,5675. In application under section 16(2) filed on 23-9-1985 the default is claimed upto Rs,5675 upto 20-9-1985 and rent of August, 1985. There is material contradiction in the order and application under sections 16(1) and application 16(2) was filed on the ground of delay in payment and non-payment of rent upto 10-9-1985.
4. ' Plea taken by appellant is that he is sick as he is man of unsound mind therefore, proceedings against him are not legal. In support he produced medical certificate. The other contention raised in the objections is that appellant having been of unsound mind had no knowledge of tentative Rent order.
5. ' The terms of tentative orders have not been challenged. Arrears were paid on 20-10-1985. The application under Section 16(1) was filed on 26-3-1985 i,e, four months after the amount was paid.
6. Respondent on 6-2-1985 made an application for withdrawing the amount deposited by appellant.
7. On 21-10-1985. Muhammad Tahsin son of opponent Muhammad Yasin made an application for appointment of next friend on the ground that his father is of unsound mind. The application was supported by affidavit. In para 4 it is stated that his father suffered mental infirmity since last two years. The Rent Controller allowed that application on 4-12-1985. He passed this order after perusing the record. After allowing this application the Rent Controller cannot hold otherwise and disbelieve the certificates. I have therefore, no hesitation in view of Rent Controller's order that appellant was unsound mind even at the time of passing tentative rent order. When it is admitted that man is of unsound mind then he is not capable of defending the case, he can get benefit and cases referred on this point are that when illness is not serious then benefit of condonation of delay may not be given. Even claims were on amount of Rs,6875 was paid on 20-10-1985 by son of appellant and on very day he filed application for appointment of next friend. Not only this but appellant Tahsin's application for appointment of next friend was allowed in December 1985 and applications under section 16(1) and 16(2) were filed after that when Tahsin already paid the arrears.
8. ' For the reasons stated I allow the appeal and set aside the order of Rent Controller. He is directed to proceed with Rent Case and decide within three months as it appears that evidence of some witnesses has already been recorded.