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Civil Petition No. 41-R of 1980, decided on 7th May, 1980.

(On appeal from the judgment and order dated 15th January, 1980 of the Lahore High Court at Lahore in S. A. O. No. 496 of 1979)..

S. 13 (2) read with S. 14-Fresh cause of action-Default in payment of rent continuing---Fresh cause of action arise:; as regards each default--Bar of S. 14, held, not applicable.

Muhammad Iqbal Kaukab, Advocate Supreme Court assisted by Saeed Mahmood, instructed by lmtiaz Mohammad Khan, Advocate-on-Record for Petitioner.

Kh. Muhammad Farooq, Advocate Supreme Court and Ch. Akhtar Ali,

Advocate-on-Record for Respondent.

Date of hearing : 7th May, 1980

J.-Leave to appeal- has been sought from an order dated 15th January 1980 of the Lahore High Court where by the petitioner's second appeal arising out of a case sunder the West Pakistan Urban Rent Restriction Ordinance, 1959, was dismissed.

The respondent landlady had filed an application for eviction of the petitioner from the property in dispute on ground of default. It was allowed by the learned Rent Controller on 18th July, 1977. There was no plea/proof of payment of rent. The petitioner had denied the relation ship of landlord and tenant. The learned Rent Controller .held that the petitioner was tenant under the respondent and directed ejectment with out any further proceedings because there was no dispute with regard to non-payment of rent. This decision having been affirmed in first and second appeals the petitioner has sought leave to appeal.

Learned counsel for the petitioner gave the background of the case involving protracted litigation including the demarcation proceedings with regard to dispute as to who was the transferee of the property in dis pute-th4 petitioner or the respondent. He also pointed out that there were earlier ejectment proceedings which had culminated in final order passed by the Rent Controller. Accordingly, he argued that the fresh proceedings resulting in the impugned orders were hit by the bar con tained in section 14 of the Ordinance.

Learned counsel for the caveator brought to our notice that the question of transfer was settled between the parties long ago and that the controversy regarding demarcation was also settled by the final order of the Settlement Commissioner on 18th April, 1975. This order, according to him, was accepted by the petitioner while the respondent challenged it through a writ petition but had not succeeded. The respondent did not challenge the same any further and it was after the said final demarcation and acceptance thereof by both the parties that the fresh application for eviction was moved on 19th April, 1976. He further explained that default in payment of rent was continuing, therefore, fresh cause of action continued to arise in favour of the respondent whose fresh petition on ground of default was competent not with standing the bar of section 14 of the Ordinance

Learned counsel for the petitioner has not been able to meet the point that fresh application moved by the respondent on 19th April, 1976 was based on fresh cause of action based on non-payment of rent. He faced a serious difficulty on realisation that the plea which could succeed on proof of certain facts relating to previous proceedings before the learned Rent Controller was not raised in the written statement filed by the petitioner. It was also noticed that the plea was not urged in the High Court. After hearing the learned counsel for the parties we are satisfied that the application moved on 19th April, 1976 was based on fresh A cause of action and it was not hit by the provisions contained in section 14 of the Ordinance. We are also satisfied that the plea was not raised in the written statement filed before the learned Rent Controller nor was it urged in the High Court. For these reasons (learned counsel has not urged any other point) there is no force in this petition and the same is accordingly dismissed.

Petition dismissed.

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