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Civil Petition for Special Leave to Appeal No. 6'70 of 1975, decided on 23rd December 1975.

(On appeal from the Judgment and order of the Lahore High Court, Lahore, dated 17‑6‑1975, in 8f. .A. O. No. 50 of 15169).

‑‑‑‑‑ Point not raised before High Court‑‑‑Need not be entertained for first time in Supreme court, particularly when not taken in grounds either.

‑‑‑ S. 15(4)‑‑Court‑fee payable on memo of appeal Particular ruling of High Court deciding it to be ad‑valorem under challenge before full Bench of High Court‑Counsel, held, could justifiably await decision of Full Bench before making good deficiency. [Court fee].

Khan Ghulam Hassan Khan v, Dr. Rashid P L D Kar 35ref.

.‑‑‑ S. 53‑A‑‑Part performance, principle of ‑‑Agreement of sale, sheet anchor of tenant s case, not exempting him from payment of rent Tenant's continued occupation of premises in violation of law, held could hardly be put forth as defence or a step towards part performance when tenant admittedly never passed consideration for sale. West Pakistan Urban Rent Restriction Ordinance (VI of 1959).

Kalimuddin Ansari v. Director: Exclse & Taxation P LD 1971 SC 114 held not relevant.

Hassan Ahmad Khan Kanwar, Advocate instructed by S. Inayat Shah. Advocate‑ on‑Record for petitioner .

S.M. Anwar Advocate instructed by Wali Muhammad Khawaja Advocate‑on‑Record (absent) for Respondent.

Date of hearing 23rd December

The petitioner a statutory tenant of the premises transferred to Respondent No. 1 was ejected by the .Rent Controller on ground of default in payment of rent. This finding is not challenged by the petitioner s counsel before us. On the other hand he was frankly admitted the default but has tried to explain it away. The lower Appellate Authority set aside the order of ejectment which was restored by the High Court in Second Appeal vide order dated 17.6‑1975, from which leave to appeal is sought in this petition.

The admitted position is that the respondent is the transferee of the premises the date of transfer being 15-7-1967. Earlier on 3-7-1960, in anticipation of the transfer he entered into an agreement to sell the premises in favour of the petitioner the agreement Exh. R/1 which contains no stipulation exempting the petitioner from payment of rent till the completion of the sale. On the admission of the petitioner that he had paid no rent the Rent Controller made an order of ejectment against him. In appeal however the District Judge took the view that the principle of part performance as contained in section 53-A of the transfer of property Act was attracted and therefore allowed the petitioner s appeal. This position was however, reversed in Second Appeal by the learned Judge on the High Court.

In support of the petitioner, learned counsel for the petitioner contended Firstly; that in the circumstances of the case When during the pendency of the appeal in the High Court the landlord had died the property had also changed hands notice under section '13‑A of the Rent Restriction Order was necessary this point was not raised before the High Court and therefore need not be entertained for the first time particularly when it has not been taken in the grounds Other. It was next contended that the appeal way originally filed by the respondent in the High Court on 6‑2‑1968 when was returned on ground of inadequacy of court‑fee and was beyond limita tion. In support of the contention, learned counsel relied on the provisions contained in sections 10 (2) and 12 (2) of the Limitation Act. Having considered the position, we find that the High Court has given good reason. for the condonation of delay, namely, that the ruling of the Karachi High Court on this point reported as Khan Ghulam Hassan Khan v, Dr. Rashid Ahmad (P L D 1967 Kar. 35 ) vas under challenge before a Full Bench and therefore the respondent's counsel'' could justifiably await this decision before making good the deficiency. Lastly, learned counsel tried to challenge the finding of the High Court on the nor‑applicability of section 53‑A of the Transfer of Property Act which embodies the principle of part performance. In support of his pica of part performance, learned counsel raised a novel argument that his clients continued occupation of the premises coupled with the admitted non‑payment of rent, which constituted the ground of petitioner's ejectment, were the two over acts on his part towards part performance of the contract. As observed earlier, agreement of sale, Exh. R/1 which formed the sheet‑anchor of the petitioner's case did not exempt him from payment of rent and therefore, his continued occupation of the premises in violation of the law could hardly be put forth as a defence or a step towards part performance when admittedly the petitioner had never paid the consideration. The authority relied upon in this behalf, by the learned counsel namely, Kalimuddin Ansari v. Director, Excise &. Taxation (P L D 1971 S C 114) has, therefore; no relevancy as it proceeds on entirely different and distinguishable facts.

In view of the above position, no fault can be found with the High Court's order justifying grant of special leave in this case. The petition is dismissed.

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