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Civil Petition No. 574‑R of 1983, decided on 23rd November, 1983.
(From the judgment dated 11‑6‑1983 of the Peshawar High Court (Circuit Bench) passed in S. A. O. No. 5 of 1982).
---Art. 185 (3)‑‑Mixed question of facts and law Held, cannot be raised for first time before Supreme Court.
‑‑Art. 185 (3)‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13, 14 & 15‑Ejectment sought on grounds of default in payment of tent and reconstruction of property‑Findings of Rent Controller in favour of landlord reversed by first appellate Court, High Court giving cogent reasons for disagreeing with first appellate Court No justification for Supreme Court for interference.
‑‑Art. 185 (3)‑Plea of limitation not raised before High Court‑‑Held, could not be re‑opened before Supreme Court‑‑[Limitation].
Ghulam Muhammad v. Abdul Qadir Khan P L D 1983 S C 68 ref.
Mian Nazir Akhtar, Advocate Supreme Court instructed by Ch. Akhtar All, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing : 23rd November, 1983.
The petitioners pare aggrieved by the‑order, dated 11‑6‑1983 of the Peshawar High Court, whereby the respondent‑landlord's Second Appeal from Order was accepted and in the result the order of the first appellate Court dismissing his ejectment petition was set aside and the order of the Rent Controller directing the petitioner's ejectment was restored.
2. The landlord had sought the ejectment of the petitioners on two grounds, namely, (1) default in payment of rent from December, 1978, and (2)) reconstruction of the property. The relevant issues had been found by the Rent Controller in favour of the landlord but the first appellate Court had reversed the finding upon the view that as the landlord was in the habit of receiving rent amounts in lump sum for two or three months at a time, the non‑payment for the period in question could not amount to wilful default and that the plea of reconstruction having been disallowed in an earlier ejectment proceeding the same was barred in the subsequent petition by section 14 of the Rent Restriction Ordinance. The High Court has given cogent reasons for disagreeing with the first appellate Court and we find no justification for interfering with the same.
3. Learned counsel, however, raised the question of the limitation of the Second Appeal before the High Court. The impugned order is silent about it but he submitted that the point had been raised but it had not been adverted to by the High Court. He urged that the question being one of law, he could even otherwise raise it for the first time before this Court. For the determina tion of the point raised, it is necessary to ascertain when the application for copy of the order of the first appellate Court had been made, when the same bad been received and when the Second Appeal had been instituted. The question; therefore, is at best a mixed one of fact and law and, therefore cannot be permitted to be raised for the first time before this Court. We also see no reason why the High Court should not have adverted to it, bad it been raised before it. In Ghulam Muhammad v Abdul Qadir Khan (PLD 1983 SC 68) this Court bad ruled that the plea of limitation which though earlier raised but had not been pressed before the High Court, could not be re‑opened before the Supreme Court.
4. The petition for leave to appeal thus being without merit is hereby dismissed.
S.Q. Petition dismissed.
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