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(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 27th April 1970, in Second Rent Appeal No. 122 of 1970).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959),

Ss. 13 & 15(4) read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑.Application for ejectment of tenant‑Tenant resisting application on other grounds but not raising plea that no notice under S. 30 of Act XXVI1I of 1958 was issued to him‑Held : High Court was justified in not allowing tenant to raise such plea for first time in second appeal.

(b) Constitution of Pakistan (1962),

Art. 58 (3)‑Mixed ques tion of law and fact‑Cannot be allowed to be raised in proceedings for leave to appeal to Supreme Court.

Abdul Hameed Khan, Advocate Supreme Court instructed by Ali Akbar, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 19th August 1970.

WAHIDUDDIN AHMAD, J.‑

The dispute between the parties is in respect of house No. C/406, Chital Chawri, Hyderabad. Respondent filed an application before the Rent Controller for the ejectment of the petitioner on the ground that it was reason able and in good faith required by him for his own use as he was suffering from T. B. The learned Rent Controller by order dated the 19th September 1968, granted the application. This order was also upheld by the Additional District Judge, Hyderabad in Civil Appeal No. 265 of 1969. The matter was then taken to the High Court and Second Rent Appeal No. 122 was dismissed on the 27th April 1970. The High Court held that the property was required reasonably and in good faith by the respondent for his personal use. The High Court, however, did not allow the petitioner to raise the plea that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was served upon him. The petitioner seeks permission to file an appeal against the said judgment.

In support of the petition Mr. Abdul Hameed Khan, learned counsel for the petitioner has contended that the property in dispute is an evacuee property and the respondent filed the ejectment application without giving notice to the petitioner under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. The contention of the learned counsel has not impressed us. This point was not raised in the trial Court. The only plea that was taken in the trial Court was that the suit was not maintainable. No issue was, therefore, framed under section 30 of the Displaced Persons Act. In these circumstances, the High Court was perfectly justified in not allow ing the petitioner to raise for the first time the plea of notice under section 30 of the Displaced Persons Act.

The point raised by the learned counsel for the petitioner is a mixed question of fact and law and cannot be allowed to be e raised in these proceedings. There is no force in the petition which is dismissed.

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