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First Rent Appeal No.23 of 1986, decided on 10th September, 1987.

---S.16(1)(2)--Striking off defence--Failure to deposit tentative rent in accordance with order of Rent Controller--Effect--Tenant, a person of unsound mind failing to deposit tentative rent within time in accordance with tentative rent order--Such tenant having been admitted by Rent Controller to be of unsound mind not capable to defend case even at time of passing tentative rent order, held, could get benefit of condonation of delay in depositing tentative rent--Order for striking off defence of tenant passed by Rent Controller for depositing rent with technical delay of one month in spite admitting tenant to be of unsound mind was liable to be set aside in circumstances.

P L D 1967 S C 530; 1983 S C M R 471; P L D 1975 Lah.1563; 1982 S C M R 1195; 1980 C L C 676; 1983 S C M R 471; 1984 C L C 1559; 1982 C L C 430 and 1981 C L C 137 ref.

Khalid Daudpota for Appellant.

R.H.Farooqui for Respondent.

Date of hearing: 19th August, 1987.

This Rent Appeal under section 21 of Sind Rented Premises Ordinance, 1979 has been filed. against the order dated 17-12-1985 of IVth Senior Civil Judge/Rent Controller (West) Karachi, whereby he has struck off the defence of the appellant under section 16(2) of the Ordinance and directed him to handover the vacant possession of the premises to the respondent within 30 days of the passing order.

2. Rent Case No.511 of 1985 was filed by respondent Abu Bakar Khan against the appellant Muhammad Yasin on the ground of default in payment of rent from 1-8-1984 to 31-1-1985 amounting to Rs.2,400 arid also some arrears, the total to the extent of Rs.3,275. A written statement was filed.

3. During the, pendency of the Rent Case an application under section 16(1) of the Ordinance, was moved by the respondent on 26-3-1985. The Rent Controller passed a tentative rent order on 21-8-1985 by which the appellant was directed to deposit the arrears of rent amounting .to Rs.5,675. He was directed to deposit future rent at the rate of Rs.400 per month on or before 10th of succeeding calendar month till the disposal of the case. On 23-9-1985 an application under section 16(2) of the Ordinance was moved by the respondent in which it was stated that the opponent has committed default as he did not deposit the current rent of August, 1985 till 10-9-1985 and also failed to deposit rent upto 25-9-1985, therefore, his defence be struck off. The objections were filed by the appellant in which it is stated that appellant was not aware of any tentative order passed by the Court as he is a lunatic and he is incapable to defend his case. It is also stated in the objections that the appellant was admitted in a mental hospital from 21-7-1984. The Rent Controller did not accept his contention and passed an order section 16(2).

4. Mr. Khalid Dawoodpota counsel for appellant contented that an application was made before the Rent Controller on 21-10-1985, requesting therein that appellant is lunatic and he may be allowed to defend the case through his next friend and such application was allowed. It is argued that even this appeal is being defended through his next friend. It is contended that on 12-10-1985 the arrears were deposited on behalf of the appellant and there is only one month's delay which is technical one. He was referred to the cases reported in P L D 1967 S C P 530, 1983 S C M R 471 and P L D 1975 Lahore 1563.

Mr. Rehanul Hassan Farooqui for the respondent submitted that illness is not ground for non deposit of the rent and plea of illness is not supported by a Medical Certificates. It is contended that only production of Certificate is not sufficient. He has referred to the case reported In 1982 S C M R 1195, 1980 C L C 676, 1983 SCMR 471, 1984 C L C 1559, 1982 C L C 430 and 1981 C L C 137.

6. The Rent Controller has disbelieved the Medical Certificate and observed in the impugned order that appellant was found to be in the shop and accepted the summon inspite of that there is non -compliance of tentative rent order. The tentative order was passed on 25-8-1985 whereas the case of appellant is that he was in hospital from 21-7-1984 to 4-8-1984 and was advised complete rest for three months. In Rent Case-Number 1373/84, the matter was compromised and rent was fixed @ Rs.200 per month for each shop. The case was disposed of on 9-2-1984 in terms of compromise. This rent case was filed on 2-2-1985. The tentative rent order was passed on 21-8-1985 and in terms of this order the arrears were to be deposited within 30 days which has admittedly not been done but on 21-10-1985 i.e. after delay of one month on behalf of appellant Rs.6875 and on 9-12-85, Rs.1200 were deposited. In application filed under Section 16(1) on 26-3-1985 the total amount' by that time claimed by the respondent landlord was Rs.3675. The Rent Controller directed appellant to pay arrears of Rs.5675. In application under section 16(2) filed on 23-9-1985 the default is claimed upto Rs.5675 upto 20-9-1985 and rent of August, 1985. There is material contradiction in the order and application under sections 16(1) and application 16(2) was filed on the ground of delay in payment and non-payment of rent upto 10-9-1985.

Plea taken by appellant is that he is sick as he is man of unsound mind therefore, proceedings against him are not' legal. In support he produced medical certificate. The other contention raised in the objections is that appellant having been of unsound mind had no knowledge of tentative Rent order.

The terms of tentative orders have not been challenged. Arrears were paid on 20-10-1985. The application under Section 18(1) was filed on 26-3-1985 i.e. four months after the amount was paid. Respondent on 6-2-1985 made an application for withdrawing the amount deposited by appellant. On 21-10-1985. Muhammad Tahsin son of opponent Muhammad Yasin made an application for appointment of next friend on the ground that his father is of unsound mind. The application was supported by affidavit. In pars, 4 it is stated that his father suffered mental infirmity since last two years. The Rent Controller allowed that application on 4-12-1985. He passed this order after perusing the record. After allowing this application the Rent Controller cannot hold otherwise and disbelieve the certificates. I have therefore, no hesitation in view of Rent Controller's order that appellant was of unsound mind even at the time of passing tentative rent order. When it is admitted that man is of unsound mind then he is not capable of defending the case, he can get benefit and cases referred on this point are that when illness is not serious then benefit of condonation of delay may not be given. Even claims were on amount of Rs.6875 was paid on 20-10-1985 by son of appellant and on very day he filed application for appointment of next friend. Not only this but appellant Tahsin's application for appointment of next friend was allowed in December 1985 and applications under section 16(1) and 16(2) were filed after that when Tahsin already paid the arrears.

For the reasons stated I allow the appeal and set aside the order of Rent Controller. He is directed to proceed with Rent Case and decide within three months as it appears that evidence of some witnesses has already been recorded.

H . B . T . / M-272/ K Case remanded.

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