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First Rent Appeal No. 212 of 1980, decided on 15th June, 1982.

‑‑ S. 13‑Eviction proceedings‑Landlord's bona fide personal require ment‑Record showing tenant grossly failing to file written statement in spite of opportunities available to him ‑ Landlord an old man residing with his infirm ailing son on first floor of premises and medical advice forbidding them to climb over stairs for first floor and this fact not controverted by tenant ‑ Eviction of tenant, held, rightly recorded.

Shahenshah Hussain for Appellant.

Abdul Rahman Memon for Respondent.

Dates of hearing: 17th and 18th January, 1982.

The facts leading up to this appeal briefly stated are that the appellant is the tenant of the respondent in the premises on the ground floor of the house situated on Plot No. 8/8‑II‑F, Karachi, on a monthly rent of Rs. 225. The respondent alongwith his family lives on the 1st Floor of the same house. The respondent is an old man and his son is suffering from haemophilia and they are advised medically not to climb up the stairs or else they will loose their lives. The respondent, therefore, filed a Rent Case No. 406 of 11979, in the Court of the Vth Rent Controller, Karachi against the appellant for his eviction on the ground of his bona fide personal use of the house in question. The learned Rent Controller served with notice and his Advocate Mr. M. Moazzam Baig filed power on his behalf on 22‑4‑1979. He obtained a number of adjournments for filing written statement and the matter was finally adjourned to 16‑8‑1979 on which date the following order was passed:

"Time allowed as a last chance. Written statement to be filed on or before the next date of hearing. Put off to 2‑9‑1979."

On 2‑9‑1979, neither the appellant nor his Advocate appeared in the Court and the learned Rent Controller having waited up to 2‑00 p. m. passed an order to proceed with the matter ex parte against the appellant.

2. On 2‑9‑1979, the appellant proceeded to India without filing the written statement or having contacted his Advocate to obtain time. An intimation with regard to the matter to proceed ex parte against the appellant was sent to him at his address by a registered post and his mother received the same. She kept the same till the appellant returned from India on 11‑10‑1979, when she gave the letter to him. In the meantime the respondent's Advocate submitted ex parte proof in the shape of his filing affidavit and an ex parte order of eviction from the premises was passed against the appellant on 15‑10‑1979. The appellant on 21‑10‑1979 filed an application under Order IX, rule 13 read with section 151, C. P. C. for setting aside the ex parte order of eviction passed against him on 15‑10‑1979. Affidavits and counter‑affidavits were filed in support of the contentions raised on behalf of the parties, The appellant contended that he could not file the written statement as he was out of country in India on account of his pressing demand there urgently. He was contradicted by the respon dent in his contentions. The learned Rent Controller dismissed his application on 23‑2‑1980. This appeal is directed against the impugned orders passed by the learned Rent Controller on 15‑10‑1979 directing eviction of the appellant from the premises in question and passing on the vacant possession to the respondent within 30 days of the order and the order dated 23‑2‑1980 dismissing the application for setting aside the above‑men tioned ex parte order of eviction.

3. I have heard Mr. Shahenshah Hussain, the learned counsel for the appellant and Mr. Abdul Rehman Memon, for the respondent. It has been contended on behalf of the appellant that he failed to file the written statement on 2‑9‑1979 as he had urgently to go to India on that date and the failure on his part was not without reasonable excuse. It has been contended on behalf of the respondent that he had already obtained much time for filing the written statement and that he could delay his departure by one day or even by few hours to file the written statement and that even after coming back on 11‑10‑1979 he slept over the matter though his mother handed over the intimation of the ex parte order having passed against him immediately and, therefore, he was guilty of gross negligence and he could not plead a reasonable excuse. What I find from the record that the appellant has filed his own affidavit and that of his mother Msi. Badar Jehan Begum. His own affidavit shows that he had to go urgently to India to see his seriously ailing cousin but the affidavit of his mother is silent about such pressing demand of the appellant in India on account of the serious illness of his cousin. There is no other evidence produced in support of such contention except that the appellant has produced his passport to show that he was out of station in India from 2.9‑1979 till 11‑10‑1979. What is evident from the material on the record is that the Advocate of the appellant had obtained sufficient time for filing the written statement at least for five dates of hearings, when the matter was adjourned to 16‑8‑1979 on which date final order was passed to file the written statement on or before 2‑9‑1979. The appellant could file the written statement before 2‑9‑1979 or even on 2‑9‑1979 before leaving for India, bad he been careful to look after the proceedings of his case. He could, even after coming back on 11‑10‑1979 and having been intimated by his mother about the intimation of the ex parte proceedings contact his Advocate, and move an application to the Court for setting aside the ex parte order but he chose to wait tilt the order for eviction was passed on 15‑10‑1979, whereafter also after waiting for six days he moved an application for setting aside the ex parte order of eviction passed against him. His conduct makes it very clear that he was grossly negligent in dealing with his case. Section 19(2) of the Sind Rented Premises ordinance, 1979, reads as follows :‑‑

"Where on the day fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse the Controller may, proceed to make an ex parte order and after such order leas been made the Controller shall have no power to rescind such order."

The circumstances of the present case in the light of the above‑mentioned provision make it very clear that the appellant had no reasonable excuse for his failure to file the written statement on 2‑9‑1979. He has failed to prove by sufficient and satisfactory evidence to the effect that he was urgently called to see his ailing cousin in India. Even his own mother is silent in that respect in her affidavit. He has also failed to produce any other evidence in that respect. Had it been so, he could produce the letters or telegrams or even other material to show that his cousin was ill in India. He could have filed the written statement before leaving for India or could have even moved an application to the Court after his return to avoid the ex parte order of eviction against him which was passed on 15‑10‑1979, if he had taken a slightest care and had shown a careful concern about his case. The material and the circumstances on tire record, therefore, make it very clear that the appellant bad no sufficient cause, much less a reasonable excuse for having failed to file the written statement on 2‑9‑1979. What I further find that the reason for the personal need of the respondent shown in his application filed before the learned Rent 'Controller, was the old ape of the respondent and, therefore, his infirmity and illness of his son and their inability to climb over the stairs and to go to the 1st floor of the house where he was living. His contention in that respect has not only been supported by the affidavit but has also not been controverted on account of the failure of the appellant to file written statement, on account of his gross negligence. I would, therefore, find the personal need of the respondent bona fide as well, the claim which has not been challenged on behalf of the appellant. There is no other issue involved for adjudication in this appeal. The impugned orders passed by the learned Rent Controller on 15‑10‑1979 and 23‑2‑1980, therefore, do not call for interference.

4. The result is that the appeal is dismissed with costs. However, the appellant is directed to hand over the vacant possession of the premises in question to the respondent within a period of two months, from the date of this judgment.

M. Y. M. Appeal dismissed.

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