' This is an appeal against the order of the learned Senior Civil Judge/Rent Controller, Karachi (South) dated 3-12-1992 refuse striking out defence of the respondent for his failure to deposit the arrears of rent on the due date and dismissed the application under section 16(2), C.P.C. Moved by the appellant.
2. Brief facts leading to this F.R A. Are that the appellant filed ejectment application against the respondent in respect of premises situated on Plot No,10-A, Quarter No,S.R.3, Jeswani Street of Nicol Road, Karachi which was rented out to the respondent on rent at the rate of Rs,190 per month.
Respondent failed to pay rent to the appellant from 1st July, 1988 up to the filing of the ejectment application. Written statement was filed by the respondent. Rent Controller on 13-11-1991 passed the tentative rent order ordering the respondent to pay arrears of rent from 1-7-1988 to 31-10-1991 at the rate of Rs,190 per month amounting to Rs,7,600 in the Court on or before 16-12-1991. Monthly rent was ordered to be paid on the 10th of every following month.
3. The respondent deposited monthly rent for November, 1991 on 10th of December, 1991. The arrears of rent amounting to Rs,7,600 were deposited on 17-12-1991.
4. On 9-2-1992 appellant moved an application under section 16(2) of Sindh Rented Premises Ordinance, for striking out defence of the respondent, as he had deposited rent on 17-12-1991 i,e, after one day of due date. Respondent filed counter-affidavit and counter-affidavit of his wife Mst.
Shamim Arshad. In his counter-affidavit respondent stated that on 12th December, 1991 when he was making preparation to deposit the arrears, he had heart attack. He was taken to the Cardiovascular Institute and was advised rest up to 22-12-1991. He further stated that there is no male member in his family, and has only a child of 12 years age. His wife is a Pardahnashin lady and was ignorant of the location of the Court. With great difficulty, she went to the Court, got challan verified, but by that time bank was closed. She was asked to come on the next day. On the next day she deposited the rent. He has also produced a sickness certificate issued by National Institute of Cardiovascular Diseases. Mst. Shamim Arshad wife of the respondent in her affidavit also given the same facts. After hearing the Advocates of the both sides impugned order was passed.
5. Learned Advocates for the appellant have argued that the respondent could have deposited the arrears of rent on 10th, when he has gone to the Court to deposit the monthly rent. It is not necessary for him to wait for the due date. He has further argued that the respondent had not made an application to the learned Rent Controller for condonation of delay in payment, but when application was moved under section 16(2), Sindh Rented Premises Ordinance, in his affidavit he has given the excuse of his illness. He was not fair in dealings. There is no provision of condoning the delay in depositing rent under the provision of Sindh Rented Premises Ordinance. Learned advocate for the respondent has relied upon Malik Shoaib Anwar v. Bashir Hussain Shami 1993 SCM R 535, Fasahat Ali v. Mst. Noor Jehan Begum 1991 CLC 1902 and Mst. Noor Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCM R 2300.
6. Learned advocate for the respondent has argued that delay in depositing the rent is not deliberate or wilful, but due to the reasons beyond control of the respondent. He has further argued that the appellant has not challenged the averments of the respondents and his wife in the counter-affidavit by filing rejoinder. As such he admits them to be correct, and his appeal to be dismissed.
' Learned advocate for the appellant has relied upon Hussain Mahmood v. Zamir-ul-Haque 1986 CLC 1297, Pir Inayat Ali Shah v. Agha Muhammad 1982 SCM R 1195, Muhammad Jan v. Khadim Hussain 1973 SCM R 243, Gulzar Ahmed Pirzada v. Additional District Judge, Lahore 1982 SCM R 616 and M. Nazir v. Shaukat Ali 1982 SCM R 985.
7. In Hussain Muhammad v. Zamir ul Hague 1986 CLC 1297, it has been held that condonation of delay for late deposit of rent of month of June, however, could not be sustained. One day's delay in compliance with order for depositing the rent made by Rent Co.Ntroller could not be condoned.
8. Pir Inayat Ali Shah v. Agha Muhammad 1982 SCM R 1195 it has been held that illness is untenable excuse for not depositing rent on the due date.
9. It has been held in Muhammad Jan v. Khadim Hussain 1973 SCM R 243, seeking permission from Court for depositing rent late, in the day with consequence that by time he reached Bank to deposit amount, banking hours were over. Default is committed and defence is rightly struck off.
10. In Gulzar Ahmad Pirzada v. Additional District Judge, Lahore 1982 SCM R 616 contention as to delay of only one day in each case, being due to misunderstanding on part of petitioner with regard to time of payment, could not be termed as deliberate disobedience of Rent Controller.
Defaulter being an Advocate cannot be assumed to have misunderstood order in question and as such his plea not sustainable.
11. In M. Nazir v. S. Shaukat Ali 1982 SCM R 985, is held that the delay of even one day in compliance with order cannot be condoned by the Controller.
12. It has been held in Malik Shoaib Anwar v. Bashir sain Shami 1993 SCM R 535, the question whether the tenant was guilty of default and had committed a violation of the Court's order passed under section 13(6) of Ordinance VI of 1959 could only be answered by an examination of the special facts and circumstances of each particular case and no hard and fast rule could be laid down.
13. In Fasahat Ali v. Mst. Noor Jehan Begum 1991 CLC 1902, it has been held that tenant on such averment was not cross-examined at all, implying thereby that his averment remained, not only unrebutted but even impliedly admitted.
14. In Mst. Noor Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCM R 2300, it has been held that omission to cross-examine a witness on a material part of his evidence give rise to inference that truth of his statement has been accepted. Such unchallenged statement of witness should be given full credit and usually accepted as true, unless displaced by reliable cogent and clear evidence.
15. In view of the citation produced by the learned advocates of the parties, the rent should be deposited strictly in accordance with the order of the Rent Controller. Even delay of one day will not be condoned in the ordinary course. There should be special and extraordinary circumstances, if delay of even one day is to be condoned. There are no hard and fast rules for condoning the delay and each case has to be decided on the special circumstances pleaded. In this case there are special circumstances as the appellant is heart patient and was taken to Institute for Cardiovescular Discease on 12-12-1991. He was advised rest up to 22nd. He has filed a certificate from the Institute for Cardiovescular Disease to this effect. He has filed affidavit that there are no adult family member in his family, except his wife who is a Pardahnashin lady. He has a minor son aged 12 years only. His wife though was ignorant about the location of the Court but still she managed to reach there got the challan signed, but as bank was closed due to late hours, she could not deposit rent. She deposited rent on next day. She has also filed affidavit to this effect. The contents of the affidavit was not challenged by the respondent by way of filing affidavit-in- rejoinder, which clearly shows that this plea was accepted by the respondent as true.
16. Apart from this, Court has to look into circumstances as to why the appellant would deposit rent on 17-12-1991 instead of 16-12-1991, whether any pecuniary benefit will occur to him by keeping this amount with him for one day. There seem to be not such benefit. It is clear that he had intention to deposit the rent, then what were extraordinary and exceptional circumstances which had prevented him from depositing rent. Illness, and the ignorance of his wife are extraordinary and exceptional circumstances. Nowadays, it is very difficult to get a house on rent at a rate of Rs,190 per month. It appears that the appellant is very poor man; and is also a heart patient, which is clear from the medical certificate. He will not fail to deposit the rent on due date until and unless circumstances are beyond his control, because he is fully aware that he could be ejected from the house on this ground alone, and that he cannot get house at the meagre rent.
17. In view of the circumstances, I am of the considered view, that the Rent Controller was justified in condoning the delay of one day in depositing the rent.
' Under the circumstance, I am not inclined to interfere in the impugned order, passed by the learned Rent Controller. Appeal is dismissed with no order as to costs.