IRSHAD HUSSAIN (THROUGH HIS HEIRS) vs ABDUR REHMAN KAZI
This petition for leave to appeal challenged a judgment of the Sind High Court which had allowed a landlord's second appeal, resulting in the eviction of the tenant, Irshad Hussain. The core legal question was whether the tenant's failure to deposit rent as ordered under Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, could be condoned on the grounds of illness. The Rent Controller had initially struck off the tenant's defence due to the default, finding the illness was not sufficiently incapacitating to prevent the deposit. Although the first appellate court condoned the default, the High Court reversed this, finding the tenant failed to prove the non-deposit was beyond his control. The Supreme Court upheld the High Court's decision, affirming that the tenant's illness was not of such an incapacitating nature as to render the failure to deposit rent inevitable or unavoidable. The Court reiterated that the principles established in Ghulam Muhammad Khan Lundkhor v. Safdar regarding default apply equally to cases involving claims of illness, requiring proof that the default was truly beyond the tenant's control.
- Can a tenant's failure to deposit rent under the West Pakistan Urban Rent Restriction Ordinance 1959 be condoned due to illness if the illness was not incapacitating enough to make the default unavoidable?
- Does the principle that a default in rent payment must be beyond the tenant's control apply to cases where the tenant claims illness as the cause for non-deposit?
- Section 13(6), West Pakistan Urban Rent Restriction Ordinance 1959
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.-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.
2. 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.
3. 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.
4. 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 A.I (PLD 1967 SC 530), which would apply to the cases of illness also. The impugned judgment thus being unexceptionable, this petition is dismissed.