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First Rent Appeal No. 249 of 1981, decided on 16th January, 1983.

‑‑ S. 15‑Eviction proceedings‑ Default in payment of rent Tenant found failing to deposit rent in accordance with tentative rent order passed by Rent Controller‑ Medical Certificate produced in support of explanation for non‑compliance not showing him bed ridden for all period preventing him to deposit rent in time‑Tenant not proving that no other male member of his family available to deposit rent on his behalf‑Tenant, held, committed default and striking off his defence by Rent Controller was, held further, as proper‑Eviction order maintained, in circumstances.

P L D 1978 Kar. 145 ; 1979 S C M R 524 ; 1979 S C M R 496 ; 1981 S C M R 538 and P L D 1983 S C 1 ref.

Ahmed Ali Memon for Appellant.

Sabbir Ahmad Shaikh and Hussain Adil Khatri for Respondent No. 1.

Date of hearing: 9th January, 1983.

The appellant abovenamed, being aggrieved by order dated 9th April, 1981 of the learned Senior Civil Judge, A. S. J./Controller, VIIIth, Karachi, in Rent Case No. 4677/79, by which appellant's defence was struck off and he was directed to hand over vacant possession of the premises in his occupation to the respondent, has preferred the above appeal, on the facts and grounds mentioned in the memo of appeal.

2. The learned Advocate for the appellant in support of the above appeal submitted, that the appellant was prevented from depositing rent w for the month of November, 1980 on account of his 111ness and a9 such he was not wilful defaulter for committing breach of the tentative rent order. The learned Advocate submitted, that the appellant produced the medical certificate in support of this contention of his, but in spite of this the learned Rent Controller came to the conclusion, that the appellant did not deposit the rent for the month of November, 1980 without sufficient cause and struck off the defence of the appellant. In view of this the learned Advocate for the appellant submitted that the impugned order of the learned Rent Controller cannot be sustained and relied upon cases

reported in P L D 1978 Kar. 145 and 1979 S C M R 524.

3. The learned Advocate appearing for the respondent on the other hand submitted, that the appellant committed breach in compliance of the tentative order of the rent, in respect of the rent for the month of Novem ber, 1980 and the explanation given by the appellant for such breach was not plausible, as the medical certificate produced by the appellant did not state. that the appellant was confined to bed and as much was prevented from depositing the said rent in time. In addition to this the learned Advocate for respondent submitted, that appellant even did not allege, that there was no other male member of his family, who could have deposited the rent on his behalf for the month of November, 1980 and as such the impugned order of the learned Rent Controller in the face of the admitted breach of the tentative order committed by the appellant is fully justified both on facts and on law. In support of these contentions the learned Advocate for the respondent relied upon cases reported in 1979 S C M R 495 and 1981 S C M R 538. H also further submitted, that case reported in P L D 1978 Kar. 145 was not approved by the Hon'ble Supreme Court and in this connection he relied upon P L D 1983 S C 1.

4. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as the authorities cited by the learned Advocates before me.

5. It is admitted position, that the appellant did not deposit the rent for the month of November, 1980 in accordance with the tentative rent order passed by the learned Rent Controller. The only explanation given by the appellant for such non‑compliance of the tentative rent order was, that l he was sick and as such he was prevented by sufficient cause, for not deposit ing the said rent. In support of this appellant had produced a Medical Certificate, but the Medical certificate in question does not show, that the appellant was bed‑ridden for all the period and as such was prevented by sufficient cause from depositing the rent of November, 1980 in time. In addition to this the appellant has not even alleged, that there was no other male member in his family, who could have deposited the rent of the said month in time, on his‑ behalf. In view of this I see nothing wrong with the impugned order of the learned Rent Controller, by which appellants defence was struck off. The cases relied upon by the learned Advocate for the appellant are based on different facts. The case reported in P L D 1978 Kar. 145, on the basis of which the learned Advocate for the appellant tried to attack the tentative rent order as incorrect, was not approved by the Hon'ble Supreme Court, which is clear from the case reported in P L D 1973 S C 1 and as such I cannot consider the con tentions of the learned Advocate for the appellant, by which he has attacked the validity of the tentative rent order in question, on facts.

Therefore I find no merits in the above appeal which is consequently dismissed with costs. However I allow four months time to the appellant to vacate the premises in his occupation and hand over its vacant possession to the respondent, provided appellant continues to deposit the rent of the premises in his occupation for the said period, in accordance with the tenta tive rent order.

M. Y. M Appeal dismissed.

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