1. ' 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.
2. 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.
3. 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.
4. ' Mr.A.F.M. Mukarim the learned counsel for the appellant has challenged this order contending that the respondent has not, been able to make out a case for condoning the delay and further that the learned Controller has completely erred in putting the burden of proof on the appellant to establish that the respondent was not sick. From the facts stated above, it is clear that the appellant had been challenging the alleged sickness of the respondent from the very beginning. In this regard the relevant facts which have to be considered are that although the respondent had stated that he was sick and had filed a counter affidavit to that effect he did not file any medical certificate alongwith the counter affidavit. And, therefore, 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.
5. There was an application without any endorsement that this medical certificate was filed on 20-3- 1979 which is the date of the application. It does not bear' 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 for consideration before the Controller was, whether the respondent has succeeded in making out a .Case that due to reasons beyond his control he was unable to deposit the rent within time. This fact was agitated before Controller and before the 1st Appellate Court and when it was remanded the parties knew what are the points at issue. 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.
6. ' Other factor which may be taken into consideration is that the respondent is an employee. He could have produced evidence from his employer that he was absent from 10-12-1978 to 16-12-1978 and had not attended the office due to serious illness. All these facts go a long way to show that the respondent has failed to establish that he was prevented from depositing rent for reasons beyond his control. The learned counsel for the Respondent has cited several authorities to show that the Controller has the power to condone the delay where it has been caused due to the circumstances beyond his control including serious illness. There can be no cavil with this proposition but in all those cases serious illness was established or had gone unrebutted. 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 set aside, the defence of the respondent is struck off and he is directed to vacate the premises and hand over vacant possession of the premises within four months.