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First Rent Appeal No.113 of 1982, decided on 28th January, 1987.

---Ss.21 & 14--West Pakistan, Urban Rent Restriction Ordinance (V of 1959), S.13(6)--Ejectment proceedings--Failure of tenant to deposit rent within prescribed time--Striking off defence--Plea of tenant than due to serious illness he was unable to deposit the rent within time but choosing not to produce and examine doctor to prove medical certificate--Observation of Rent Controller that if tenant had failed to examine the doctor, the landlord should have examined the doctor to establish that the tenant was not ill, amounted to clear mistake of law iii appreciation of evidence underlying burden of proof--A part could not be expected to prove in the negative--Tenant being an employee, failing to produce evidence from his employer that he was absent on relevant dates and had not attended office due to serious illness--Facts going to show that the tenant had failed to establish that he was prevented from depositing rent for reasons beyond his control--Order of Rent Controller set aside, defence of tenant struck off and tenant directed to vacate premises within four months Evidence Act (I of 1872), Ss.101 & 102.--[Burden of proof;

A. F. M. Mokarim for Appellant.

Mustafa Lakhani for Respondent.

Date of hearing: 28th January, 1987.

This is an appeal against the order passed by the learned Controller dismissing the appellant's application under section 13(6) of the Urban Rent Restriction Ordinance, 1959 for striking off the defence for non-compliance of order, dated 4-11-1978 passed by the Controller for deposit of rent. The admitted position is that the rent was to be deposited on or before 15-12-1978 but the same was deposited by the respondent on 17-12-1978. The appellant filed an application on 21-1-1978 under section 13(6) of the Urban Rent Restriction Ordinance, 1959 for striking off the defence. The respondent filed counter affidavit alleging that due to serious sickness he was unable to move about and could not deposit the rent but the moment he recovered he deposited the rent on 17-12-1978. The appellant filed Rejoinder challenging the ground of sickness pleaded by the respondent. The learned Controller by his order struck off the defence against which an appeal was filed by the respondent. The learned appellate Authority taking note of the fact that the respondent had filed a medical certificate separately which had remained unnoticed and as issue was raised regarding sickness and situation beyond the control of the respondent, took the view that the Controller should have taken these facts into consideration and given his finding by allowing the parties to lead evidence. The order of the learned Controller was, therefore, set aside and the case was remanded to the Controller. When the matter was taken up by the Controller the respondent filed an affidavit of evidence and he was also cross-examined. Significantly enough the respondent did not examine the Doctor. He only relied upon his affidavit of evidence. The appellant did not lead any evidence. In the circumstances the learned Controller by the impugned order dismissed the application for striking off the defence holding that respondent could not deposit the rent due to circumstances beyond his control.

Mr. A.F.M. Mukarim the learned counsel for the challenged this order contending that the respondent has not able to make out a case for condoning the delay and further learned Controller has completely erred in putting the proof on the appellant to establish that the respondent was not stick. From the facts stated above, it is clear that the appellant had challenging the alleged sickness of .the, respondent from the beginning. In this regard the relevant facts which have considered are that although the respondent had stated that he sick and had filed a counter affidavit to that effect he did not any medical certificate alongwith the counter affidavit. And at the first stage there is nothing on record to corroborate his statement. From the order of the Ist Appellate Court it is clear that this medical certificate was produced on record after the matter had been fixed by the Controller for order. There was an application without any endorsement that this medical certificate was filed 20-3-1979 which is the date of the application. It does not endorsement by any Court Official and the medical certificate is, dated 15-3-1979 in respect of the illness of 10-12-1978. There is sufficient delay in obtaining the certificate and the manner in which it has been produced makes it more suspicious. The only point consideration before the Controller was, whether the respondent succeeded in making out a case that due to reasons beyond control tie was unable to deposit the rent within time. This fact agitated before Controller and before the Ist Appellate Court when it was remanded the parties knew what are the points at It was, therefore, the duty of the respondent to have produced doctor to prove the medical certificate but he chose not to examine him. The learned Controller was not correct in making the observation that if the respondent has failed to examine the doctor, the appellant should have examined the doctor to establish that the respondent was not ill. This is obviously a clear mistake of law in appreciation of evidence underlying burden of proof. A party is not expected to prove in the negative.

Other factor which may be taken into consideration is that respondent is an employee. He could have produced his employer that he was absent from 10-12-1978 to 16-12-1978 had not attended the office due to serious illness. All these a long way to show that the respondent has failed to establish he was prevented from depositing rent for reasons beyond his The learned counsel for the Respondent has cited several to show that the Controller has the power to condone the where it has been caused due to the circumstances beyond his including serious illness. There can be no cavil with this proposition but in all those cases serious illness was established or had gone un-rebutted. In the present case the appellant has been challenging the illness from the very beginning and contested upto the last forum. In view of this discussion the order of the learned Controller is aside, the defence of the respondent is struck off and he is to vacate the premises and hand over vacant possession of the premises within four months.

S.Q./M-93/K Appeal accepted.

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