1. DORAB PATEL, AGTG. C. J.-The appellant is the tenant of the ground floor of a property in Karachi which is owned by the respondent. The respondent filed an eviction application against the appellant in 1965 and on 25-4-1966 the Rent Controller, Karachi, passed the usual order for the deposit of tenta--tive rent. This order was not complied with, because even according to the appellant, he deposited the rent of September, 1966 on the 17th of October, 1966. Thus as there was a clear delay of three days, in the deposit of rent, the respondent filed an application for striking off his defence. The appellant contested this application and submitted that he had been prevented from depositing the rent of September, 1966 before the 15th of October, 1966, because be had been ill. And, this plea was supported by a medical certi--ficate. However, Mr. Dastagir admitted that the appellant was running a hotel in the demised premises, therefore, he could easily have sent his employees or servants to deposit the tent on iris behalf and, therefore, his plea that he was prevented by illness `from complying with the order for deposit of tentative rent' was rightly rejected by the Rent Controller but by his order dated 16th January, 1968, the Rent Controller; struck off his defence and directed him to hand over vacant possession of the demised premises to the respondent within a fortnight.
2. The appellant challenged this order in an appeal in the District Court, Karachi, which was allowed by an Additional District Judge with the observa--tion that illness was something which was "bound to happen in human life and the default cannot be called a willful default." It escaped the attention of the learned Additional District Judge that the, appellant could easily have bad the rent deposited through his servants and employees and that a tenant who does not deposit rent till the last day runs a great risk of being in default with the order for the deposit of tentative rent.
3. Therefore, it is not surprising that the respondent challenged the order of the Additional District Judge in an appeal in the Sind & Baluchistan High Court.
4. This appeal came up for hearing before the Chief Justice of the High Court on the 7th of November, 1973. As the appellant was absent despite service, according to the rules of the High Court, the appeal was heard ex parte against him and the learned Chief Justice agreed with the view of the Rent Controller that the appellant had committed default in the deposit of rent of September, 1966, therefore, he allowed the respondent's appeal and restored the Rent Controller's order.
5. As the respondent's appeal was allowed ex parte against him, the appellant filed application fur the rehearing of his appeal and in the affidavit in support of his application for the restoration of the appeal to regular hearing, he relied on two grounds. The first was that service of the hearing of the appeal had been effected on him and not on his Advocate, therefore, service was bad. The second ground was that the Court's notice of the hearing of the appeal for the 7th of November, 1973 had been posted on the 6th of November, and had reached him on the 9th of November, -1973, therefore, on this ground also it was a fit case for setting aside the ex parte order against him.. This application came up for hearing before the Chief Justice on the 30th of April, 1974. The Chief Justice held that service on the appellant was good, because the notice for the hearing of the appeal had been sent to the appellant by the High Court on the 1st of November, 1973. Next, as to the plea that the notice was bad, because it had not been sent to the appellant's Advocate, the learned Chief Justice observed':- "There is nothing before me beyond the bare word of the respondent upon the basis of which I can hold that power had been filed. Mr. Kirmani has produced me a receipt for an affidavit which is not dated and claims that this shows that power must have been filed because this is a receipt for counter-affidavit. This receipt does not bear the number of any matter and only the same which shows the person from whom it has been received bears. This word it is claimed Mr. M. Umer but it is not clearly legible. Even assuming that it is M. Umar, it does not follow that it relates to the present case."
6. Accordingly by his order dated 30th April, 1974 the Chief Justice dismissed the restoration application, therefore, the petitioner filed a petition for leave and leave was granted by this Court on the 2nd of September, 1974.
7. As before the Chief Justice, Mr. Dastagir pressed the appeal on the ground that the notice to the appellant was bad, because it should have been sent to his Advocate and on the further ground that the appellant had not been given reasonable notice for the hearing of his appeal. As to the first objec--tion, we agree with the view of the learned Chief Justice as contained in his observations which we quoted, and in all fairness to learned counsel, we may point out that this objection was very feebly pressed by him.
8. Learned counsel, however, attempted to persuade us that the notice sent by the High Court did not give the appellant reasonable intimation of the hearing of his appeal. But learned counsel did not rely on the plea of the appellant that the notice of the High Court had been posted on the 6th of November, 1973. And, this is for the obvious reason that the envelop of the High Court (by which the notice had been posted to the appellant) clearly shows that the New Town Post Office (which is the area in which the demised premises are situated) had received the High Court's letter on the 3rd of November, 1973. Therefore, the averments of the appellant that; the High Court had posted its notice the day before the hearing of the appeals patently false. Confronted with this difficulty, Mr. Dastagir pointed out that the envelop of the High Court contained two endorsements by the New Town Post Office, one of 3rd November to which we referred and the other of 6th November, 1973, therefore, learned counsel submitted that the notice had not been delivered to the appellant before the 7th of November, 1973.
9. We are unable to accept this 'submission for more reasons than one. In the first place, the conduct of the appellant in falsely suggesting that the High Court had posted its notice to him on the 6th of November, 1973 does not impress us, the more so, as leave was obtained on the basis of this suggestion. It is true that the appellant had filed a copy of the envelop of the High Court, but we find that the relevant endorsements of the Post Office are illegible on this copy, therefore, we have to emphasise that we are very poorly impressed by the appellant's conduct. And, on the other hand, in view of the endorsement of the New Town Post Office dated 3rd November, 1973 the burden was heavily on the appellant to show that the letter had not been delivered to him by the 5th of November, 1'973. But the appellant did not even attempt to examine the Postman, who according to him, had delivered this letter to him on the 9th of November, 1973. In these circum-- stances there was evidence in support of the finding of the High Court that the appellant's plea was false and we would not be justified in- interfering with this finding, the moreso, as this plea does not appear to have been pressed before the Chief Justice, who had the benefit of having the High Court's envelop with its postal endorsements before him.
10. Even otherwise the appellant has no case on merits. Admittedly, he deposited the rent of September, 1966 on the 17th of October, 1966, therefore, be had to explain and justify each day's delay in the deposit of rent and a he was running a hotel, the mere plea of his own illness is not a sufficient explanation for his failure to comply with the order for deposit of tentative rent, therefore, on merits he has no case.
11. In the result, the appeal fails and is dismissed, but as the appellant has been using the demised premises for running a hotel, at Mr. Dastagir's request we allow the appellant four months' time to hand over vacant possession of the demised premises to the respondent provided he continues to pay her the monthly rent for this period. The parties will bear their own costs.