1. ZAFFAR HUSSAIN MIRZA, J.---This is an appeal against the judgment of a learned Single Judge of the High Court of Baluchistan, Quetta, dated 21st December, 1986, whereby the appeal filed by the respondents as landlords under section 15 of the Baluchistan Urban Rent Restriction Ordinance, 1959, (hereinafter referred to as the Ordinance) was accepted and the appellant who is the tenant in the disputed premises was ordered to be evicted there from.
2. The admitted fact is that the commercial premises in dispute bearing Municipal No.8-10/120, situated at Kansi Road, Shaldara Quetta, was owned by two brothers, namely, Abdul Oadir, respondent No.1 herein, and Bashir Ahmed, since deceased represented by his legal heirs respondents Nos. 2 to 7. According to the respondents the appellant was inducted in the aforesaid premises as a tenant at a monthly rent of Rs.400.
3. On 8th December, 1982, both the aforesaid brothers jointly instituted ejectment application against the appellant on the ground of default and personal bona fide requirement. The appellant contested the ejectment application and filed a written statement taking a number of legal as well as factual pleas. On the pleadings of the parties learned Rent Controller framed two preliminary issues with regard to his jurisdiction in the matter, in relation to the nature of the premises. Having decided the preliminary issues against the appellant, the learned Rent Controller held that he had jurisdiction to entertain and decide the ejectment application as the property in dispute fell within the purview of the "rented land".
4. Thereafter the learned Rent Controller settled further 8 issues on the remaining pleas of the parties, and it is only necessary to refer to issue No.1 which reads as under:-- "Whether the applicants have sold half portion of premises in question i.e. 12,500 feet alongwith saw machine to the respondents in consideration of Rs.60,000?"
5. The basis for framing this issue was the reply of the appellant in his written statement vide paragraph No.3, material portion of which reads as under: "That thereafter the applicants and the respondent entered into an agreement at Quetta on 3-5- 1972 whereby the applicants sold half portion of the plot i.e. 12,500 sq. Ft. Alongwith saw machine to the respondent and received a sum of Rs.20,000 at the time of execution of the above-said agreement whereas the balance amount of Rs.4,000 was agreed to be paid through instalments. It was further agreed in the said agreement dated 3-5-1972 that since 1-6-1972 the rent of the half portion of the plot measuring 12,500 sq. Ft. Would be paid by the respondent at the rate of Rs.200 per month with effect from 1-6-1972 to the mother of the applicants. The answering respondent as per agreement dated 3-5-1972 paid a total amount of Rs.65,400 for the purchase of the plot to the applicants, which are duly mentioned by the respondent in his accounts which are maintained regularly in accordance with the commercial practice and usage and which was also acknowledged by the applicants Nos. 2 to 7 predecessor-in-interest (Bashir Ahmed). For the abovesaid half portion after the payment of the total consideration amount of more than Rs.60,000 the respondent has approached the applicants on several occasions calling upon them to get the same mutated in his name in the Tehsil record as per agreement but they have always been avoiding to do the same on one pretext or the other:'
6. Thereafter the learned Rent Controller passed the tentative rent order for depositing the arrears of rent and the future rents under section 13(6) of the Ordinance on 20th November, 1984. By this order the appellant was directed to deposit the arrears as well as the future rent at the rate of Rs.250 per month.
7. On 4th March, 1986, respondent No.1 submitted an application alleging that the appellant had committed default in the compliance of order under section 13(6) of the Ordinance passed by the Rent Controller. No particulars were, however, stated in this application as to in respect of which months the appellant had committed default, except for the month of January, 1986. The appellant filed objections to this application denying the allegations and asserting that on the contrary, the appellant had deposited amounts in excess by Rs.750 in the Court upto June, 1986. It seems before this application could be disposed of, on examination of rent receipts of the amounts deposited by the appellant in the Court having been produced by the appellant, respondent No.1 made another application on 4th May, 1986, alleging that the appellant had committed default by depositing the rent for the month of October, 1985 on 24th November, 1985, i.e. With a delay of 9 days. The appellant submitted his explanation in reply to this application pleading that the delay had occurred unintentionally on account of the fact that the appellant was a patient of diabetes and was under medical care and treatment which prevented him from depositing the rent in time. He submitted a separate application for condonation of delay in depositing the rent beyond the prescribed time for the said month of October, 1985, in which he submitted the detailed explanation. In substance the appellant submitted that he had fallen seriously ill on 11th November, 1985, and was under the care of Resident Medical Officer (General) Sandeman Provincial Hospital, Quetta, who had advised daily check up of urine for sugar and had further advised complete bed rest for the appellant for two weeks. During this period according to the appellant he was seriously ill and physically incapacitated with the result that he was unable to move out of his bed. He further submitted that there was no other male member in the house nor any other person to whom the matter of depositing the amount could be entrusted. In support of his explanation the appellant submitted the patient slip signed by the Resident Medical Officer of the Sandeman Provincial Hospital, Quetta, dated 11th November, 1985, prescribing medicines and advising complete bed rest for two weeks as well as daily check-up.
8. Learned counsel for the appellant submitted that the explanation contained in the reply of the appellant, as stated above was supported by an affidavit but no counter-affidavit or any rejoinder affidavit was submitted by or on behalf of the respondents to controvert the assertions made therein. This statement of the learned counsel for the appellant has not been repudiated by the learned counsel appearing on behalf of the respondent.
9. On considering the affidavits of the parties and the patient slip submitted by the appellant, as well as the application of the appellant for condonation of delay the learned Rent Controller held that the non-compliance of the order on the part of the appellant, in depositing the rent for the month of October, 1985, late by 9 days, "was not intentional but due to the illness of the respondent." In this view of the matter by his order dated 28th August, 1986, he accepted the application for condonation of delay and dismissed the application of the landlord for striking off the defence of the appellant. In condoning the delay the learned Rent Controller expressly referred to the explanation of the appellant and the fact that the same was not controverted by any counter- affidavit on the part of the respondent, nor was the genuineness of the medical certificate (patient slip) issued by the Resident Medical Officer, of Sandeman Provincial Hospital, Quetta, questioned. In these circumstances the learned Rent Controller reached the conclusion that the appellant was prevented by sufficient cause and unavoidable circumstances from depositing the rent in time.
10. Being aggrieved the respondents filed an appeal before the High Court of Baluchistan. On behalf of the appellant a preliminary objection was raised with regard to the maintainability of the appeal on the ground that the question as to the quantum of rent payable by the appellant was still to be determined, with obvious reference to the agreement of sale whereby the rent was agreed to be reduced to Rs.200 per month. The learned Single Judge who decided the appeal repelled the preliminary objection raised on behalf of the appellant. On merits the learned Judge held that the explanation offered by the appellant which appears to be an afterthought was not sufficient to hold that he was prevented on account of unavoidable circumstances from depositing the rent within time. In coming to this conclusion the reasons that prevailed with the learned Judge were, that this explanation was not offered in response to the first application of the landlord for striking off his defence, that for 8 long months the appellant concealed the fact of his having fallen ill and being prevented from depositing the rent on account of illness. The other reason assigned by the learned Single Judge was that Diabetes was not such illness which could render an out door patient, even in the circumstances of this case, to completely prevent him from performing his ordinary pursuits of life. Therefore, in the view of the learned Judge even taking the medical certificate as genuine it was necessary for the appellant to establish special circumstances of his inability or disability for non-compliance. Having taken this view the learned Judge accepted the appeal and ordered striking off the defence of the appellant with the result that he was directed to be ejected.
11. Leave was granted by this Court to consider the contention that in having framed three issues on the question whether the respondents had sold half portion of the premises to the appellant under the agreement dated 3rd May, 1972, clearly the question of relationship of landlords and tenant between the parties with regard to the half of the property was sub judice and consequently without determining that issue the learned Rent Controller was not competent to order the eviction of the petitioner from the premises as a whole. The other question on which leave was granted was whether the learned Judge in the High Court was, in the circumstances of this case justified in rejecting the explanation of the appellant in respect of the default pertaining to only one mouth, which was accepted by the learned Rent Controller in his discretion.
12. In support of this appeal learned counsel for the appellant has reurged the aforesaid contentions which were noticed in the leave granting order. He submitted that the explanation furnished by the appellant alongwith the documentary evidence in support of his assertion that he was ill and bed- ridden which prevented him from depositing the rent for the single month within time, was sufficient and was rightly accepted by the learned Rent Controller. The reasons that prevailed with the learned Singe Judge, it was urged, were speculative and not supported on the evidence or any material on the record.
13. On the other hand learned counsel for the respondents supported the impugned judgment of the High Court and submitted that the conduct of the appellant clearly revealed his mala fides that he wished to conceal the fact of his having violated the tentative rent order under section 13(6) without coming forward with the explanation subsequently furnished at the earliest moment.
14. So far as the first contention of the learned counsel for the appellant is concerned we feel that there `is substance in the argument that if the appellant succeeds in proving the fact that the half portion of the premises was sold to him under an agreement, then .Even if the agreement is not registered, he may have a good defence in respect of the said half portion of the property under section 53-A of the Transfer of Property Act. The relevant law has been laid down in Mst. Azeemun Nisa Begum v. Ali Muhammad (PLD 1990 SC 382). But in view of the older we propose to make in this appeal, we do not find it necessary to letermine this question at this stage and leave it open for the learned Rent Controller to decide the same in accordance with law. It is sufficient to dispose of this appeal on the second argument urged on behalf of the appellant, namely, that learned Single Judge in the High Court had erred in interfering with the order passed by the learned Rent Controller, which was eminently justified in the circumstances of the case. In this connection we would refer to the reasons that influenced the decision of the learned Single Judge as reproduced in the foregoing part of this judgment. As pointed out the explanation given by the appellant in which he had asserted that due to illness he was incapacitated from leaving his sick bed and there was no one to help him in depositing the rent within time, remained uncontroverted by any counter-affidavit.
15. The medical certificate or patient slip which supports the appellant has not been rejected-as a doubtful document. It seems to us that this aspect of the matter was not given due consideration by the learned Single Judge. Instead his suspicions with regard to the genuineness of the explanation offered by the appellant, were aroused mainly on account of the fact that this explanation was not offered in response to the first application but in reply to the second application for striking off the defence of the appellant. In this connection learned counsel for the appellant submitted that in the first application no specific particulars of the months in regard to which default was alleged were disclosed, but a general allegation was made. It is true that the first application makes no mention of the month of October, 1985, in connection with the default. This month was for the first time mentioned by the respondents in their second application and accordingly the appellant furnished a detailed explanation in respect thereof. Be that as it may, this is a question of fact whether the appellant hare found by the learned Sing finding. Merely because the explanation was given when an allegation of default was made, does not give rise to the inference that the appellant deliberately concealed this fact. It would have been proper, for the respondents to controverted the explanation of the appellant by filing a counter-affidavit and alleging concealment or called the deponent for cross-examination and subjected.
16. The other reason that Diabetes is not such an illness which could prevent the appellant from performing his ordinary pursuits of life is contrary to the expert opinion as expressed in the medical certificate. In any case the state of a person's health as a result of complications or otherwise connected with Diabetes is a matter for expert opinion and sweeping generalization could not have been properly made basis for the inference that the patient was not confined to bed and unable to perform ordinary chores of life. This is particularly so when the learned Judge did not reject the medical certificate as non-genuine.
17. So far as the argument of the learned counsel for the respondents we do not agree with him that the conduct of the appellant was such as disentitled him from pursuing his defence before the Rent Controller.
18. In view of the foregoing reasons we are of the view that the appellant's explanation is satisfactory and his defence is not liable to be struck off.
19. In the result this appeal is allowed, the judgment and order of the High Court are set aside with the consequence that the order of the Rent Controller dated 28th August, 1986, is restored and the case is remanded to him for disposal according to law. In the circumstances of this case there will be no order as to costs.