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Civil Appeal No. K‑47 of 1972, decided on 18th September, 1974.

(On appeal from the judgment and order of the High Court of Sind & Baluchistan at Karachi, dated 1‑9‑1972 passed in Second Appeal No. 349 of 1971).

‑ S. 13‑‑Default in payment of rent‑Striking off defence‑Appellant not controverting that order of Rent Controller dated 16‑12‑1966 to pay arrear of rent and future rent attained finality‑Appellant failing to pay rent from 1‑1‑1968‑Rent Controller, held, left with no alternative but to strike off appellant's defence.

----S. 116 and (Vest Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 14‑Estoppel‑Induction of appellant as tenant under respon dent admitted before Rent Controller by appellant‑Appellant, held, estopped to repudiate respondent's title as his landlord

‑‑ Art. 185(3)‑Appeal before Supreme Court‑Points not raised in Courts below, held, cannot be permitted in appeal before Supreme court.

M, Naimuddin, Advocate instructed by Akbar Ali, Advocate‑on‑Record for Appellants.

G. H. Abbasi, Advocate instructed by S. M. Abbas, Advocate‑on‑Record for Respondent.

Date of hearing: 18th September, 1974.

‑This appeal by special leave is from the order of a learned Single Judge of the High Court of Sind & Baluchistan at Karachi dated 1‑9‑1971 in second appeal arising out of proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959.

The dispute relates to a shop described as tenement No. 3, situated on a portion of the plot bearing No. RB5/26, Aram Bagh, Karachi. The plot is evacuee property, over which it appears that the respondent herein, a local, had built a number of tenements including the shop in dispute, which he gave on rent to the appellant herein, who incidentally is a non‑claimant displaced person. During the settlement operations, the entire property including the shop in dispute was transferred to the respondent.

On 24‑2‑1964, the respondent applied for the eviction of the appellant from the shop on the ground of his default in the payment of the rent. In the course of proceedings before the Rent Controller with the consent of the parties, an order was made on 23‑1‑1967 fixing tentatively monthly rental of the shop at Rs. 15 and requiring the appellant to deposit Rs. 1,440 as arrears of rent, at that rate from 1‑6‑1959 to 31‑12‑1966. It appears that the appellant had deposited already Rs. 1,400 leaving a balance of Rs. 40 to be deposited by him. This however, he failed to do.

It appears that in the meantime, the transfer of the property including the shop in dispute in favour of the respondent was cancelled because of his failure to pay the transfer price and the appellant succeeded in securing the transfer of the shop in dispute in his favour on 15‑9‑1967. The appellant applied to the Rent Controller that since the transfer of the shop in his favour, he had ceased to be a tenant in the shop under the respondent. On the basis of this objection, the learned Rent Controller framed an additional issue as to whether the ejectment application against the petitioner had ceased to be maintainable because of the transfer of the shop in favour of the appellant

However, the transfer of the shop in favour of the appellant was short lived. On 6‑8‑1968, the transfer of the shop in his favour was cancelled and restored to the respondent. Consequent upon the transfer of the shop, in his favour, the appellant did not deposit any rent since Ist January, 1968. On an application by the respondent, the Rent Controller by order dated I6‑4‑1970 struck off the appellant's defence because of his failure to pay the rent, as he was required to do under order dated 23‑1‑1967 without deciding his objection that since the transfer in his favour, he had ceased to be a tenant under the respondent.

The Rent Controller's order striking off the appellant's defence has been maintained in first and second appeal.

Leave to appeal was granted by this Court to consider whether in the circumstances set forth above, the Rent Controller's order dated 16‑4‑1970 striking off the appellant's defence was properly made

Mr. Naeemuddin, learned counsel for the appellant urged the following points in support of this appeal, namely that‑.

(i) the Controller, should have had decided the additional issue as to the maintainability of the ejectment application before striking off the appellant's defence ;

(ii) on 4‑4‑1968 when the application for striking off the appellant's defence was made by the respondent, the latter had ceased to be the landlord in respect of the shop in dispute because of its transfer in favour of the appellant ;

(iii) in any event, the appellant is entitled to the statutory protection under section 30 of Act XXVIII of 1958 ; and

(iv) the P. T. O. and P. T. D. not having issued in favour of the respon dent, an application for ejectment was not competent.

It was not controverted by the appellant's learned counsel that the Rent Controller's order dated 16‑12‑1966 requiring the appellant to deposit Rs.1, 440 as arrears of rent and to pay future rent, at the rate of Rs. 15 p.m. had attained finality. Upon the appellant's failure to pay the rent as from 1‑1‑1968, the Rent Controller was left with no alternative but to strike off the appellant's defence under subsection (6) of section 13 of the 1959 Ordinance

As to the second ground, suffice to say that it was admitted by the appel lant in the course of his statement before the Rent Controller, that he was inducted in the shop by the respondent as tenant under him and he had attorned to him until the dispute between him and the respondent over its transfer of the shop by the Settlement Authorities. In the face of this admission, it is difficult to understand how the appellant can now repudiate the respondent's title as his landlord in view of the estoppel created by section 116 of the Evidence Act, 1872.

The third and the last points were not raised either in the High Court or in the Courts below and, therefore, cannot be permitted to be raised at this stage.

For the foregoing reasons the appeal fails and is hereby dismissed with costs. The appellant shall vacate the shop not later than 30‑11‑1974 subject however, to the condition that he shall punctually pay the rent to the respon dent, as required by law.

Appeal dismissed.

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