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Second Rent Appeal No. 117 of 1976, decided on 12th April, 1981.

Ss. 13(6) & 15‑Finding of wilful default‑A finding of fact‑Not immune from attack in second appeal if based on no evidence or non- consideration of material evidence or based on conjectures or surmise or on inference drawn from facts not proved‑[Finding of fact].

Ss. 13 & 15‑Default in payment of rent‑Striking off defence Respondent/Tenant taking plea of illness (typhoid) for non‑attendance‑ Expert opinion or authority not cited by District Judge in support of his observation regarding typhoid disease being of serious nature and person suffering from it cannot possibly attend to his daily routine‑Tenant attending doctor for treatment at dispensary a mile away from his residence, held, cannot be said to have been prevented by reason beyond his control from depositing rent in time and no wilful default committed by him.

S. Anwar Jamall for Appellant.

Abdul Hameed Khan for Respondents.

Date of hearing : 12th April, 1981.

This second appeal under section 15 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) is directed against the order, dated 11‑3‑1976, passed by the IIIrd Additional District Judge, Hyder abad in First Rent Appeal No. 1 of 1976, whereby he set aside the order of the Controller, dated 23‑12‑1975.

The facts giving rise to this second appeal are one Irshad Hussain (hereinafter called 'the tenant') was tenant of the appellant in respect of a portion of the residential premises bearing No. F. 34‑164, Lajpat Road, Hyderabad at a rent of Rs.15 per month.

In the year 1966 the appellant filed an application under section 13 of the Ordinance for eviction of the tenant on the ground that he required the premises for his own personal use. During the pendency of the application on 5‑1‑1567 the Controller passed an order in accordance with the provisions of section 13(6) of the Ordinance, directing the tenant to deposit future monthly rent. The tenant, however, committed default in the deposit of rent for the month of December, 1967, which was allowed by the Controller to be deposited on'24‑1‑1967 at the risk of the tenant, on an application made by him on 23‑1‑1967. However, on 26‑1‑1967 the appellant made an application under section 13(6) of the Ordinance for striking off the defence of the tenant on the ground of the abovementioned default. Consequently the Controller ordered the eviction of the tenant and the plea that he was not able to deposit the rent due to illness by the due date was not found to be satisfactory. The appeal preferred against the said order was also rejected. However, in second appeal the case was remanded and a direction was issued that the application made by the appellant under section 13(6) of the Ordinance should be heard afresh after granting an opportunity to the tenant to adduce further evidence by way of summoning the doctor who had issued the medical certificate regarding the illness of the tenant during the relevant period. On remand of the case the tenant examined the Doctor Abdul Qadir Khan who had issued the medical certificate. On consideration of the evidence of the doctor the Controller held that :‑

"I am of the opinion that, opponent has not made out any case of his serious illness, in such condition that he was not able to make payment and therefore, he is not entitled to any relief. 1 have already discussed above that opponent had been negligent and wilful defaulter and his defence must be struck off."

With regard to the medical evidence Controller opined

"He has stated that Irshad Hussain was suffering from typhoid and not by paratyphoid as there was no mention of laboratory test. He has stated that proper register of patients with all details is to be maintained but admittedly he has not produced any such record. He has not stated specifically that Irshad Hussain was not in a position to move.

He did not say that Irshad Hussain was treated in his house. He has stated that patients used to remain outdoor patients and used to attend his dispensary for medicines. In that case if Irshad Hussain was attending his clinic from Laiqat Road about one mile away, then he could not be said in such position that he could not have been able to come to the Court for depositing rent. Apart from his negligent attitude that he did not depute any man to the Court for depositing rent, his condition was not such, that he could not come to Court for depositing rent, his default for non‑payment of rent before 15th is wilful."

However, on appeal the order of the Controller was set aside by the Illrd Additional District Judge, Hyderabad. He found :‑

"It is an admitted fact that the rent for the month of December, 1976 was not deposited before 15‑1‑1968 but it was deposited on 24‑1‑1968.

Irshad Hussain had taken the plea before the Rent Controller that because of his illness he could not deposit the rent within the prescribed time. There is medical certificate on record of the application supported by the evidence of Dr. Abdul Qadir Khan that Irshad Hussain had remained under his treatment from 8‑1‑1968 to 23‑1‑1968 for enteric fever. The learned Rent Controller, in his order, has not said that Irshad Hussain was not suffering from typhoid (enteric fever) during the said period. He has said that I am of the opinion that opponent has not made out any case of his serious illness, in such condition that he was not able to make payment and therefore he is not entitled to any relief.'

The circumstances of this case in fact do not support the findings of the learned Rent Controller. It cannot be doubted that Irshad Hussain was suffering from typhoid during the period mentioned above. I can take judicial notice of the fact that typhoid is a disease of such a serious nature that the man suffering from it cannot possibly attend to his daily routine. It will be noticed that Dr. Abdul Qadir Khan has stated that during the period he had given treatment to Irshad Hussain, he was 20‑25 years of age. Thereafter, Irshad Hussain also had come to him with the trouble in his throat. It is also to be noticed that within few years of this disease, in young age, Irshad Hussain died. These facts clearly indicate that Irshad Hussain was weak and infirm man. While Suffering from typhoid, Irshad Hussain, therefore, could not have moved out of the bed. Irshad Hussain was, therefore, justified in not coming to the Court for depositing the rent before 15‑1‑1968, because of his illness.

4. The question now has arisen whether there was anybody in the house who could have been directed by Irshad Hussain to deposit the rent in the Court before 15‑1‑1968. The material available on the record indicates that there was no such person in the house of Irshad Hussain who could have been commissioned by him to deposit the rent in the Court on his behalf. In paragraph No. 24 of his objections to the main application it will be noticed that Irshad Hussain has mentioned that he lives in the house alongwith his widow mother, grandmother, sisters and small children. This very fact shows that there was no grown‑up male member in the house who could have done the needful in this matter. It will also be noticed that Irshad Hussain died in young age and has left his widow and minor children as his L. Rs. This fact further shows that there was no male member in the house who could have been commissioned by him to deposit the rent in the Court".

I have heard Mr. Anwar Jamali, Advocate for the appellant and Mr. Abdul Hameed Khan Advocate for the respondent. The learned counsel for the appellant submitted that the order of the Additional District Judge, Hyderabad is based on conjectures and surmises as he has not taken certain material facts into consideration and objections filed by the wife of the respondent/opponent to the application made by the appellant for bringing the legal heirs of the deceased on record. Paragraph 1 of the said objections reads as follows :‑

"(1) That the applicant has failed to file the proper legal heirs, besides the legal heirs shown in the application (1 to 4) the following are the legal heirs of the deceased and are living in the disputed house with the consent of the landlord (applicant).

He has also submitted that the tenant was liable to explain default of each and every day and since he had appeared in Court on 23‑1‑1967 to swear an affidavit in support. of the application seeking permission to deposit the rent for the defaulted month, at least on that day he was well and he has given no explanation why he did not deposit rent on that date.

On the other hand it is submitted by Mr. Abdul Hameed Khan, Advocate for the respondents that the tenant had submitted the application on 23‑1‑1967 after obtaining the certificate. But this submission does not help the tenant for it was not necessary for the appellant to first obtain the certificate and then submit the application.

The learned counsel for the respondent further submitted that the finding of the Appellate Court that the respondent had not committed wilful defaul being one of fact was immune from attack in second appeal under section 15(4) of the Ordinance but it is settled law that if the finding is based on no evidence or non‑consideration of material evidence or is based on conjectures or surmises or on inferences drawn from facts not proved the same could be interfered with in second appeal.

In the instant case the findings of the learned Additional District Judge, Hyderabad are based on no evidence or non‑consideration of material piece of evidence.

There is also no doubt that the order of the learned Additional District Judge is based on conjectures and surmises for no expert opinion or authority has been cited in support of the observation that the typhoid is a disease of such serious nature that the man suffering from it cannot possibly attend to his daily routine, for a period of more than 16 days. In view of the use and availability of antibiotics no such finding could possibly be given without there being specific evidence to that effect which is lacking here. The observation in fact is based upon the certificate relied upon by the tenant showing that he was under treatment of doctor from 8‑1‑1968 to 23‑1‑1968, but it is an admitted fact that on 23‑1‑1968 the respondent did appear in the Court and swear an affidavit. It was, therefore, not possible to draw the conclusion that the condition of the tenant was such that he could not have moved out and attended the Court throughout the period from 8‑1‑196 to 23‑1‑1968. In fact it has come in evidence on record that the tenant was attending the doctor for treatment at his dispensary which was a mile away from his residence. Therefore, he could very well go to the Court to deposit the rent or could send the same. through his brother. The observation of the learned Additional District Judge, Hyderabad that the tenant had no male member is not correct and is not based on any cogent evidence and the same is also contrary to the contents of the objections mentioned herein before which objections find place on the record of the Controller. The other observation that the tenant died in young age within a few years of this disease is also based on conjecture and surmises for there is no evidence whatever that the tenant died due to continuous illness on account of typhoid (enteric fever). Further observation that he could not have moved out of the bed is also contrary to the evidence of the doctor. Therefore, it cannot be said that the respondent was prevented by reasons beyond his control to deposit the rent in time and there was no wilful default on his part.

I, therefore, allow this appeal and set aside the order of the Additional District Judge, Hydetabad, , and restore _ the order of the Controller, dated 23‑12‑1975.

M. Y. H appeal allowed,