1. The facts giving rise to this second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, are that the appellant is the tenant of the respondent in respect of a flat. The latter filed an ejectment application on 25-10-1972 against the appellant in the Court of the Rent Controller and XVI Civil Judge, Karachi, on the ground of default in the payment of rent. In that application an order was made by the Court on 16-8-1973 directing the appellant to deposit arrears of rent within 4 months and future rent, at the admitted rate, before the 15th of each calender month. Despite this order, three separate defaults in the payment of rent were made by the appellant in that the rent for the month of August, 1973, was deposited on 20-9-1973, that for the month of July, 1974, was deposited on 16-8-1974, and the rent for the month of December, 1975, was deposited on 15-1-1976. In consequence of these defaults, the respondent made two separate applications, one on 28-1-1974, and the second on 15-4-1975, that the defence of the appellant be struck off. The explanation of the appellant for the first default was that because of an attack of facial paralysis he was unable to pay the rent for August, 1973, in time and for the second default was that 14th August, 1974, was a Holiday and that on the 15th he had gone to deposit rent in the Court but due to great rush at the pay-in window his turn did not reach before the window was closed for the day and hence he deposited the rent on the 16th. In respect of the 3rd default he stated that he was under the impression that rent was to be deposited by and not before the 15th of each month.
2. Both the Rent Controller and the 1st Appellate Court have held that there is no merit in the explanation of the appellant and that his defaults were willful. They accordingly ordered that his defence be struck off and directed his ejectment. It is against these two concurrent orders that the appellant has come to this Court in lInd Appeal.
3. I have heard Mr. Abdul Shakoor, the learned counsel for the appellant, and Mr. Qutubuddin, who appeared for the respondent. Mr. Abdul Shakoor, while admitting the three defaults, submitted that they were not wilful. He contended that the first two defaults were in consequence of circumstances beyond the control of the appellant and for which, therefore, the appellant cannot be penalized, and the third default was the result of a genuine misunderstanding and hence cannot be characterised as wilful. the out-patient ticket of the appellant at the Railway hospital. This ticket shows that though the date of the first visit of the appellant to the Railway hospital was 6-6-1972, the sickness certificate was issued on 21-9-1973 and fitness certificate was issued on 25-10-1973. The learned counsel for the appellant submitted that the ticket itself shows that the appellant was being treated as an out- patient, and not as an indoor patient, which would have been the case if he had been bed-ridden or so incapacitated as not to move about, and that there is nothing in the certificate to indicate that the appellant was incapacitated from performing a simple act like depositing rent in Court or at least instructing some one to deposit it in his behalf. He also submitted that the circumstances that no evidence was led by the appellant to show that he was on leave from his office during the period of defaultand that the affidavits of the registered private medical practitioner or the railway doctor were not filed clearly indicate that the appellant, was not so incapacitated by his illness as to be unable to deposit the rent or at least) arrange for its deposit. I am inclined to agree with the submission of the learned counsel and the concurrent findings on this point by the to, Courts below.
4. So far as the second default is concerned, there is only the affidavit of the appellant himself that by reason of the excessive rush at the pay-in window at the Court he was not able to make payment on 15-8-1974 and hence had made the payment on the following day. In his affidavit the appellant has stated that when be was unable to make the payment on 15th, he contacted C the Rent Controller to accept the rent but the Rent Controller directed him to deposit the rent on the next day. There is, however, no evidence of circumstances in support of his contention. If in fact the appellant had approached the Rent Controller, he should have ordinarily made an application to him explaining the circumstances why he could not make the payment on that day, which he admittedly did not do,, or at least obtained an order in writing from the Rent Controller, but no such order was produced. It was submitted by Mr. Qutubuddin that even if it be accepted that the appellant found a great rush of people at the pay-in window on 15-8-1974 and could not on that account deposit the rent on that day, it shows that the appellant was negligent in taking steps to make the payment in time and must therefore suffer the consequences for the default in payment.
5. In support of his contention the learned counsel relied upon the decision of their Lordships of the Supreme Court in Muhammad Jan v. Khadim Hussain (1972 SCMR 243In that case, by the. Time that the petitioner got the necessary permission from the Rent Controller to deposit the rent in the State Bank of Pakistan and went to the Bank, the banking hours had expired and as the Bank was not prepared to accept the deposit on that day, the deposit had to be made on the following day.
6. The defence of the petitioner was accordingly struck off. Their Lordships of the Supreme Court upheld this decision anal observed "that the petitioner could easily have avoided the default if he had gone to the Court and obtained the permission in time." I am of opinion that in the instant case the petitioner by waiting till the last day and then going late was entirely responsible for the default which he could easily) have avoided by going to the Court on an earlier date or at least in time.
7. Hashim Khan. v. Ghulam Nabi (1972 SCMR 112In that case the Controller had ordered the tenant to deposit arrears of rent before 15-7-1966, and current rent by the 15th of each month. The tenant's counsel, however, wrongly interpreted this order and advised him to deposit the arrears and current rent by 15-7-1966, in consequence o which advice the tenant deposited the arrears of rent as well as the monthly rents for May and June, 1966, on 4-7-1966. It was held by their Lordship of the Supreme Court that "the appellant acted on the advice given to him by the learned counsel and he could not be penalized merely because the counsel's advice proceeded on a misrepresentation of the Rent Controller's order." The facts of the instant case are clearly distinguishable. There is no claim even by the appellant that he was wrongly advised by his counsel: or that the latter had misinterpreted the order of the Rent Controller. If he himself misinterpreted the order, he alone was to blame. Furthermore, in the application, dated 28-1-1974. Which was made after the first default,) the respondent had clearly stated that the order of the Court was that the rent was to be deposited before the 15th of every month. The appellant had due notice of this application and should have been on guard to s that the rent was deposited before the 15th of each month and his failure t do so makes him a wilful defaulter. s. A. H. Appeal dismissed.