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Second Appeal No. 14 of 1966, decided on 31st January 1961.

S. 13(6)‑Default in depositing monthly rent‑Failure of landlord to raise objection promptly‑Whether in particular case amounts to waiver‑Depends on circumstances of case‑Landlord, a blind man, raising objection after 5 or 6 months‑Delay in raising objection could not, in circumstance, amount to waiver.

Masood Hussain v. Muhammad Saeed Khan P L D 1965 Lah. 11 ref.

Ss. 13(6) & 15(4) ‑ Failure to deposit monthly rent Whether particular circumstances sufficient for preventing tenant from depositing rent in time‑Question of fact and not of law Cannot be disturbed in second appeal‑Civil Procedure Code (V of 1898), S. 100.

S. 13(6)‑deposit of monthly rent‑Illness of wife or death of brother in India‑Not sufficient circumstances for not depositing rent by due date (Obiter).

Mst. Shah Jehan v. Mst. Mukti P L D 1963 Kar. 777 ref.

Mr. Faizanul Haq, Advocate raises the following contentions:

(a) That the landlord did not object to the default for a period of five or six months and therefore, it should be held as laid down in Masood Hussain v. Muhammad Saeed Khan P L D 1965 Lah. 11 that the default was waived;

(b) that the appellant had deposited advance rent and therefore, there was in fact no default;

(c) that the default was due to circumstances beyond the control of the appellant and therefore, it could not be said to be a default within the meaning of law as interpreted in Mst. Shah Jehan v. Mst. Mukti P L D 1963 Kar. 777.

2. It is true that in P L D 1965 Lab. 11, a learned Judge of this Court has observed that by his failure to bring the default to the notice of the Court for a period of nearly one year the landlord should be deemed to have waived his right to object in this behalf, yet it is clear that the question whether in a particular case there is waiver of this objection or not will depend upon the circumstances of that case. In the present case, the landlord is stated to be a blind person and he has been persistently pursuing his applications against the present appellant. In these A circumstances a delay of five or six months in bringing to the notice of the Rent Controller the default committed by the present appellant cannot be said to be a waiver on the part of the landlord.

3. The contention that the appellant had deposited advance rent in an amount of Rs. 276.00 so as to cover the rent for the month of October 1963, payable by or before the 5th of November 1963, was not raised either before the Rent Controller or before the Appellate Authority. This is primarily a question of fact which should have been raised in the lower Courts and cannot be raised for the first time in Second Appeal.

4. The last contention that the circumstances which prevented the appellant from depositing the rent by the due date were beyond his control, again raises a question of fact. The circumstances relied upon by the appellant namely, the illness of his wife and the death of his brother in India, were duly considered by the learned Additional District Judge but he came to the conclusion that they were not of a nature which could prevent the appellant from complying with the Rent Controller's order regarding the deposit of rent. The finding of the appellate Authority in this behalf does not raise any question of law, which can be considered by this Court in Second Appeal. In any case even if I were to examine the circumstances, I would have to come to the same conclusion as the Appellate Authority, namely, that the circumstances were not such as to prevent the appellant from depositing the rent by the due date. In other words, this is not a case where it can be said that there was no default within the meaning of law as interpreted in the Karachi case relied upon by Mr. Faizanul Haq.

5. As a result, I find that the appellant's defence was rightly struck off and no justification is made out for interference in Second Appeal. The appeal is, therefore, dismissed in limine.

K.B.A. Appeal dismissed.

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