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Civil Review Petition No. K‑3 of 1977, decided on 14th January, 1980.

(On review against the judgment and order of this Court dated 25^th January 1917 in Civil Appeal No. K‑207 of 1976).

Constitution of Pakistan (1973)

‑‑ Art. 188 read with Art. 185‑Review‑Matter neither raised in High Court nor at time of hearing of petition for leave to appeal Cannot be permitted to be raised at review stage‑Supreme Court Rules, 1956, O. XXVI.‑[Review].

Minhomal v. Deputy Commissioner & Additional Settlement Commis sioner (Lands) and others 1968 S C M 358 distinguished.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) ---

‑‑ S. 30 read with S. 29‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 1‑Admitted position on record that tenant did not pay any rent to landlord for more than six months after receiving statutory notice of transfer and demand with result that he had clearly been guilty of default and was liable to be dealt with under provisions of Ordinance of 1959‑Landlord making an application to Deputy Settlement Commissioner under S. 29 of Act Held, landlord cannot be said to have waived his right to apply for ejectment of tenant on ground of non‑payment of rent. Akhtar Mahmood, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 14th January, 1980.

,

‑This petition seeks review of our order dated the 25th of January, 1977, by which civil petition for special leave to appeal bearing No. K‑207 of 1976, was dismissed.

The petitioner is in occupation of an evacuee property consisting of a shop and a go down which was transferred to the respondent under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, under a provisional transfer order dated the 18th of May, 1961.

The respondent applied for the ejectment of the petitioner on the ground of default in the payment of rent. This application was dismissed by the Rent Controller: and the respondent's appeal was also dismissed by the Additional District Judge, Karachi. However, the respondent's second appeal was accepted by the High Court, and the petitioner was ordered to deliver vacant possession of the premises to the landlady.

The main contentions put forward before this Court at the time of the hearing of the petition for leave to appeal related to the quantum of rent payable by the petitioner on the ground that originally the rent of the premises had been assessed at Rs. 24 per mensem, but the landlady wanted to charge at the rate of Rs. 130 according to the latest Municipal assessment. The petitioner had agitated before the Municipal authorities as well as the Divisional Commissioner against this assessment, with the result that it was ultimately fixed at Rs. 130 per mensem. While dismissing the petition we observed that it was not necessary for us to deal with the various submissions made by the learned counsel for the petitioner in regard to. The legality of the Municipal assessment carried ‑out in the year 1961, as the petition could easily be disposed of on the ground that the petitioner had defaulted in the payment of rent even according to the original rate of Rs. 24 per mensem. after having been served with the statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Review of our previous order is sought on the ground that the respondent‑landlady had taken the matter of default to the Deputy Settlement Commissioner by making an application to this officer for the ejectment A of the petitioner under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but this application was rejected by this officer and the petitioner was given time to pay the rent, and he did make the payment within the period prescribed by the Deputy Settlement Commissioner, with the result that he could no longer be held to be in default. It is contended that this aspect of the matter completely escaped the notice of the Court, and, therefore, it was a fit case for review. We find that this matter was not raised in the High Court, nor was it raised at the time of the hearing of the petition for leave to appeal. On this short ground alone we would be justified in refusing to permit this new point to be raised at this late stage. Review is not maintainable on the B basis of grounds which were never raised in the High Court or in the Supreme Court at the proper time. The learned counsel had referred us to Minhomal v. Deputy Commissioner and Additional Settlement Commissioner (Land) and others) 1968 S C M R 358), in support of the proposition that a new point can be permitted to be raised even at this stage. We find, however, that the case relied upon by the learned counsel is clearly distinguishable on facts.

Even if we were to permit the learned counsel to raise this new point we find that it cannot benefit the petitioner. It is an admitted position on the record that the petitioner did not pay any rent to the respondent for more than six months after receiving the statutory notice of transfer and demand, with the result that he had clearly been guilty of default in the payment of rent, and was liable to be dealt with under the provisions of the West Pakistan Rent Restriction Ordinance, 1959. By merely making an application to the Deputy Settlement Commissioner under section 29 of the Act, the respondent could not be said to have waived the right which had accrued to her to apply for the ejectment of the petitioner, on the ground of non‑payment of rent.

For these reasons, the petition fails and is hereby dismissed.

Petition dismissed

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