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Civil Petition for Special Leave to Appeal No. K‑94 of 1981, decided on 26th May, 1981.
(On appeal from the judgment and order of the Sind High Court dated 12‑4‑1981 in Second Appeal No. 117 of 1976).
-‑ Art. 185(3) read with West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(6)‑Ejectment on ground of default in depositing rent‑Failure of tenant in depositing rent sought to be condoned on ground of illness‑Tenant's disease not of incapacitating type to make failure to deposit rent absolutely inevitable/unavoidable and beyond his control‑Judgment of, High Court, on appeal of landlord, ordering ejectment of tenant for non‑deposit of rent‑Held, unexceptionable in circumstances of case.
Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530 ref.
Abdul Hamid, Senior Counsel and S. M. Abbas, Advocate‑on‑Record for Petitioner.
Date of hearing : 26th August, 1981.
Leave to appeal has been sought from judgment dated 12‑4‑1981 of the Sind High Court whereby the respondent/ landlords second appeal arising out of order of eviction of his tenant, Irshad Hussain, was allowed.
On respondent's application for eviction of Irshad Hussain, the pre decessor‑in‑interest of the petitioners, he was directed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, to deposit arrears and monthly rent. Admittedly he committed default in this behalf and made an application for condonation thereof on ground of illness.
It is not necessary to go into details of all the proceedings. Ultimately, however, on remand, the learned Rent Controller held that Irshad Hussain's illness was not of such incapacitating type that he was absolutely incapable of arranging the deposit in time. Accordingly, the tenant's defence was struck off and be was ordered to be evicted. The learned first appellate Court allowed the tenant's appeal and held that illness being the cause for non‑deposit of rent in time, the default was condonable. On second appeal of the respondent/landlord, it was held by the High Court that the tenant had failed to establish that the non‑deposit was beyond his control. Accordingly, the landlord's second appeal was allowed and the order of the learned Controller was restored. Now this leave to appeal petition has been filed from the side of the tenant.
After hearing the learned counsel at some length, we are satisfied that the disease of the petitioner was not of such incapacitating type that the failure to deposit was absolutely inevitable/unavoidable and beyond the control of the tenant, and, further that he was, in all circumstances, unable to arrange the deposit through any one else. The learned Single Judge of the High Court, while allowing the respondent's appeal, has followed the principles laid down by this Court in Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530), which would apply to the cases of illness also. The impugned judgment thus being unexceptionable, this petition is dismissed.
Leave petition dismissed.
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