1. ' The appeal has been filed challenging the orders passed by the learned Second Senior Civil Judge and Rent Controller, Sukkur striking off the defence of the appellant under section 16 (2) of the Sindh Rented Premises Ordinance, 1979 and directing his ejectment within 90 days from the date of the order.
2. ' The facts relevant for the purpose of this appeal are that an order was passed by the Rent Controller on 9-1-1990 on an application moved by the present respondent under section 16 (1) of Sindh Rented Premises Ordinance, 1979 directing the appellant to deposit the arrears of rent for last 20 months from May, 1987 to December, 1988 at the rate of Rs,125 per month amounting to Rs,2,500 within thirty days from the date of the said order and further directing him to deposit future monthly rent regularly on or before the 10th of every succeeding calendar month. The present appellant/tenant deposited arrears of the rent in compliance with the above-said order and also continued to deposit the monthly rent till December, 1989 but he wilfully committed default in payment of rent for the month of January, 1990 which was to be deposited by him on or before 10th of February, 1990. The present respondent then moved an application for striking off his defence.
3. The appellant filed objections taking the plea that on 28-1-1990. He had gone to Karachi to attend a marriage ceremony of a relative and there he fell ill from 1st February, 1990 till 25th February, 1990 and was under treatment of Dr. Talib Chaudhry. It has further been averred in the objections that there were disturbances in Karachi during this period and curfew was clamped on 8th February, 1990 for unlimited period and, therefore, it was not possible for the opponent to go back to Sukkur and deposit the rent within time. However, it is admitted by the appellant before this Court during course of arguments that the said rent has not yet been deposited. The learned Rent Controller after hearing the arguments of the Advocates for the parties was pleased to pass the impugned order. Being aggrieved the present appellant has preferred this appeal. This appeal was taken up earlier for Katcha Peshi and was partly heard and a pre-admission notice was ordered to issue to the respondent. Mr. Kanwar Muhammad Sultan has filed his Vakalatnama for the respondent and has opposed the admission of the appeal.
4. ' Mr. Muhammad Haroon Memon, the learned counsel for the appellant has submitted that the non-payment of rent by the present appellant within due time was not on account of deliberate omission or negligence on his part but was due to circumstances beyond his power and control as being ill he could not travel to Sukkur to deposit the rent in time. He has further submitted that the medical certificate submitted by the appellant with his affidavit in objections to the respondent's application under section 16 (2) of the Sindh Rented Premises Ordinance shows that he was ill from 1st to 25th February, 1990 and, therefore, could not deposit the rent and the other ground taken is that due to curfew in Karachi the appellant could not travel to Sukkur.
5. With regard to the first ground taken by the appellant it may be observed that the order of the trial Court shows that application under section 16 (2) of Sindh Rented Premises Ordinance was filed by the respondent on 25th March, 1990 which is one month after the present appellant was certified to be medically fit by the said Dr. Talib Chaudhry and the objections to this application in the form of affidavit were filed by the present appellant on 22-4-1990 yet there is A nothing on the record to show if any effort was made by the appellant during these two months, when admittedly he was medically fit to have deposited rent in Court. Moreover, the medical certificate issued by Dr. Talib Chaudhry only shows that he was suffering from fever and was under his treatment but it does not show if his illness was such that he was advised bed rest or that he was unable to move about or discharge his daily pursuits of life. It is also submitted during course of arguments by the learned counsel for appellant that on 13-2-1990 the appellant had come to Sukkur to deposit the rent but he was told by the Nazir that the time has expired and, therefore, he will not receive the rent. This is an oral assertion by the appellant which fact is not stated in his objections filed before the Rent Controller nor there is anything on the record to support the said contention. I am, therefore, not inclined to accept this contention specially when the appellant was represented in lower Court by an Advocate and there is no explanation as to why he did not make a move through his Advocate for deposit of rent. At this stage Mr. Muhammad Haroon Memon states that because the Advocate was out of station, therefore, the appellant could not contact his Advocate. This contention is also not acceptable as it was the bounden duty of appellant to have even a late stage. This contention of the appellant itself goes to negate his made efforts himself or through his Advocate to get the rent deposited in Court previous contention that he was so ill upto 25th February that he could not travel to Sukkur as admittedly he had come to Sukkur on 13th February. I am, therefore, not inclined to accept this contention.
6. The other contention raised by the appellant is that because curfew was clamped in Karachi during this period, he could not come to Sukkur. On one hand he has not shown whether he was residing in Karachi in the particular area in which the curfew was clamped and it is on the record that entire city of Karachi was not under curfew but only certain localities were subjected to curfew.
7. Secondly he has also not stated as to on what date the curfew was lifted and thirdly even till 22nd April, 1990 when he filed his affidavit by way of objections no effort was made by him to deposit rent in Court.
8. ' The learned counsel for the appellant has placed reliance on the case of Syed Muhammad Rashid v. Fakhruddin 1986 CLC 2567. In this case my learned brother Nasir Aslam Zahid, J. Had set aside the eviction order for the reason that there was 5 days delay in deposit of rent as the tenant, because of curfew in Liaquatabad, Karachi where he was residing could not deposit the rent during that period and full details of the date and hours of curfew had been given. This decision, in my view, would not be applicable to the present case in which there is clear negligence on the part of the appellant who has failed to comply with the orders of the Rent Controller.
9. The appeal is accordingly dismissed in limine. Misc. Application also I c stands disposed of.