Mrs. ZUBAIDA BEGUM vs Mrs. S.T. NAQVI

ABDUL KADIR SHAIKH, J.--Facts of this case briefly stated that during pendency of petitioner---s application for respondent---s eviction, the Rent Controller, Karachi directed respondent, by the order dated 28-4-1977, to deposit arrears of rent amounting to Rs. 2,700 from July 1976 to April 1977 before 15-7-1977, and further rent before 15th of each succeeding month.

2. On 15-8-1977, petitioner filed an application under section 13(6) of Sind Urban Rent Restriction Ordinance, 1959 for respondents eviction on the ground of non-compliance of the order, dated 28- 4-1977. According to the report submitted by the Nazir of the Court, respondent deposited Rs. 3,900 on 13-8-1977 with an affidavit, supported by a medical certificate, that the late deposit was due to her illness. The Rent Controller condoned the delay and dismissed the application on the ground that respondent was ill and there was no male member in her house to help her in depositing the amount in time.

3. On appeal by petitioner, the Additional District Judge, Karachi set aside the order of Rent Controller, and directed respondent's ejectment from the premises, but on a second appeal by respondent, a Judge of Sind High Court held that the order of the Rent Controller refusing to strike off defence of the tenant is an interlocutory order not involving a decision of the case, and, therefore, it was not open to appeal. On this view of the case, he set aside the judgment of the Additional District Judge, and r(.,stored the order of the Rent Controller.

4. Leave to appeal was granted by this Court in order to consider the question whether an appeal against the refusal of a Rent Controller to strike off the defence of a tenant on his/her failure to comply with the direction under section 13 (6) of the Ordinance for the deposit of arrears and current rent is competent under section 15 of the Ordinance.

5. This precise question came up for consideration of this Court in Messrs Fakhri Printing Press v.

Mst. Rubab Bai and others C.P.S.L.A. No.K-109, decided on 27th February 1980, and it was held that the order of the Rent Controller passed under section 13(6) of the Ordinance refusing to strike off tenant's defence is as much appealable as the one striking out tenants defence. In view of the fact that this Court has already decided the question upon which leave was granted, Mr. Abdul Majid learned counsel for the respondent frankly conceded that he is unable to defend the point on which the second appeal filed by the respondent was allowed by the High Court. Since, as already held by this Court appeal against the order of the Rent Controller passed in this case was competent in law, the impugned judgment of the High Court is set aside. However, since several others points were raised by the respondent in support of the second appeal, it is only just and proper that the case be remanded to the High Court for fresh decision of the second appeal on the other points raised by the respondents. We order accordingly.

6. We would like to record an objection raised by the learned counsel of the respondent that the learned Judge in the High Court seriously erred in condoning the delay in the filing of the second appeal, which was hopelessly barred by time. We are unable to accept this plea for the reason that the learned Judge in the High Court has held on the basis of the affidavit of the learned counsel appearing for the respondent who appeared before the Additional District Judge and the High Court, that the reasons for not filing the second appeal in time was beyond his control. Since the learned Single Judge condoned the delay in legitimate exercise of discretionary jurisdiction of the High Court, there is no valid justification for interfering with this part of the impugned judgment of the High Court.

7. The appeal is accordingly allowed as above, but the parties are left to bear their own costs.