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First Rent Appeal No. 65 of 1980, decided on 27th October, 1983.

---Ss. 13(6) & 15--Failure to deposit rent--Application for condonation on ground of illness--Controller rejecting such application and striking off tenants' defence as ground of illness not mentioned in counter affidavit--Defence of illness having been taken later at time of application for condonation was rightly held to be afterthought.

---S.13(6)--Default in payment of rent--Medical certificates produced by tenant not showing that illness was of such a nature that tenant could not move from bed or go outside for periods during which defaults committed--Tenant used to go to doctors for consultations and to work during periods in question--Defaults committed were, therefore, avoidable and tenant's defence, held, rightly struck off.

S. Inayat Alt for Appellant.

Akhtar Mahmood for Respondent.

Date of hearing: 27th October, 1983.

This first rent appeal has been filed impugning the order dated 22-12-1979 of the learned Rent Controller stricking off the defence of the appellant /tenant and ordering the ejectment of the appellant in Rent Case No. 475 of 1973. Tentative rent order was passed in this case on 3-9-1973. An application was filed on 28-3-1979 under section 13(6) of the 1959 Rent Ordinance by the landlord for striking off the defence of the appellant, as he had defaulted in deposit of rent. A counter-affidavit dated 15-4-1979 was filed by the appellant, in which it was inter alia stated by the appellant that he had paid and deposited all rents in time and that he was not a defaulter. As regards the allegation in the application of the respondent that the appellant had committed six defaults, appellant's reply in para. 6 of his counter-affidavit dated 15-4-1979 was that he had not committed the six defaults. Nothing was mentioned in the counter-affidavit dated 15-4-1979 by the appellant that he suffered from any illness. However, later on an application dated 19-7-1979 was filed by the appellant for condonation of defaults and in the affidavit in support of this application it was admitted that the defaults had been committed but these were due to "serious disability of movement caused in consequence of my illness. I have been a patient of recurring bronchial asthma attacks which are at times so serious and disabling that I cannot make movement and have to remain confined to bed for days. Two medical certificates, one dated 22-5-1979 from Dr. M. Fazal Hussain Abidi, PIB Colony, Karachi and the other from Dr. Muhammad Ayub Khan of Dastigir Colony, Karachi, were filed in support of the applications for condonation of defaults. By the impugned order dated 22-12-1979, the application for condonation was dismissed and the application under section 13(6) filed by the respondent was allowed and the defence of the appellant was struck off. I have heard Mr. S. Inayat Ali, learned counsel for the appellant and Mr.Akhtar Mahmood learned counsel for the respondent in this first rent appeal filed to challenge the impugned order of the learned Rent Controller.

2. It is an admitted position that there are six defaults committed by the appellant in deposit of rents for the months of March, April, June, September and November, 1978 and January, 1979. In each case there is a default of one or two or three days. Learned counsel for the appellant argued that the delay in depositing the rent was on account of serious illness of the appellant and as such the defaults should have been condoned or in any case the defence of the appellant should not have been struck off by the Rent Controller. It may be observed that the plea of illness was not taken in the counter-affidavit filed in reply to the application under section 13(6) of the 1959 Rent Ordinance. As a matter of fact, the plea that was taken was that all rents had been deposited in time and no default had been committed. The learned Rent Controller was right in observing that the defence of illness taken later at the time the application for condonation was filed is an afterthought, as otherwise, the appellant would have stated the fact of illness in his counter-affidavit.

If the fact that the ground of illness was not take up in the counter-affidavit and that it was an afterthought is overlooked, even then no case is made out by the appellant. The two medical certificates shows that the appellant suffers from bronchial asthma. The medical certificates do not show that the illness of appellant was such that he could not move from his bed or go outside for the periods during which the defaults had been committed. The wordings of the medical certificates indicate that the appellant used to go to the two doctors for consultations. In fact the appellant himself stated that sometimes he used to go to work during the periods in question. The appellant was not able to make out a case on the basis of illness and the medical certificates that his condition was such that the defaults that had been committed were on account of reasons beyond his control. From the evidence it is apparent that the defaults were avoidable and the defence was rightly struck off by the learned Rent Controller.

3. I find no merit in this appeal. First Rent Appeal No. 65 of 1980 is dismissed with costs. The appellant is, however, granted four months time to vacate the premises subject to payment/deposit of rent.

M. A. K. Appeal dismissed.

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