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First Rent Appeal No. 627 of 1982, decided on 29th May, 1985.

‑‑‑S. 21‑‑Waiver‑‑Plea of‑‑Plea of waiver was mixed question of fact and law‑‑Unless such plea had been specifically raised in lower Court or issue in respect of same was framed or parties were allowed to lead evidence in support and in rebuttal of said plea‑‑Such plea, held, could not be allowed to be raised for first time in appeal.

Muhammad Sadiq for Appellant.

Safaat Hussain for Respondent

. Date of hearing: 27th May, 1985.

This appeal is directed against the order, dated 29‑4‑1982 passed by XV Rent Controller, Karachi. The relationship of landlord and tenant as well as the rate of rent was admitted between the parties. The ejectment application was filed by the respondent against the appellant on the ground that he had handed over the premises to some‑other persons. The same was denied by the appellant. He took up the position that he was himself residing in the premises with his family members and that he had not committed breach of tenancy agreement. It was also stated in the written statement that another Application No. 4836/76 had been filed by the respondent on the ground of personal need and nuisance and, therefore, this new application could not be filed. Sub letting was in issue.

2. Zahirul Hassan examined himself and stated that the appellant was his tenant in respect of the disputed premises but he has infringed the terms of tenancy and handed over the demised premises to his father and brothers without the written consent of the respondent and that he has parted with the possession of the premises. It was alleged that appellant left the premises during the pendency of Rent Case No. 4836/76 and he was residing now at R/156, Sharifabad. It was also stated that the appellant had handed a letter to Zafar Mahmood, stating that he had vacated the house in question. In cross‑examination he had admitted that at the time of renting, the family of the appellant had started residing in the premises and that the respondent had not objected to the family of the opponent residing there. He asserted that the appellant shifted in 1977 and he came to know of the shifting of the appellant immediately, thereafter. He stated that he had orally objected to the shifting. He produced the agreement of tenancy and the notice, dated 27‑3‑1979 issued to the appellant where the factum of the appellant leaving the premises was mentioned. He also produced photo copy of agreement in Rent Appeal No. 123/79 which is signed by Danish Iqbal, stating that Danish had agreed to vacate the premises. Zahirul Hasan was not cross‑examined on this aspect of the case.

3. One neighbour, Jamil Ahmad Khan, filed his affidavit, stating that Danish Iqbal had left the premises and handed over its possession to his father and brothers. His statement was not seriously mentioned in the cross‑examination.

Zafar Mahmood, son of the respondent, also supported the respondent. He denied in cross that father, brothers, and sister of the appellant had been living from beginning in the disputed premises but asserted that they had come after 3 or 4 months. He asserted that they had orally objected to the appellant about this. Danish Iqbal did not consider it necessary to make any statement in the case.

4. Anis Iqbal filed his affidavit, stating that premises were taken on rent through Danish Iqbal for himself and his family and that since the accommodation has become insufficient for the full family, Danish has been seeking another accommodation for himself and his family. He denied that there was any subletting and asserted that the family has been living all along. He also denied that Danish handed over the possession to his father and brothers. In cross‑examination he admitted that tenancy agreement was in the name of Danish. He admitted that nowadays Danish was residing at Maymar while other family members were residing in the disputed house. He asserted that his elder brother Danish was supporting them. He denied that Danish was residing alone in the premises at the biginning of the tenancy. He was shown Annexure photo copy of the compromise application in Appeal No. 123/79 that he could not state whether it bore the signature of his brother. He could not say whether he had compromised in that case or not. He admitted that Danish was at Karachi. But he had not come to Court as he was not feeling well. He denied that Danish has its connection with the disputed house. He admitted that Danish had not attended Court at Karachi.

5. On 7‑8‑1982, Anis stated that he wanted to produce other witnesses but he was not allowed to do so on the ground that from 7‑12‑1981 till that date no affidavit of any person had been filed.

6. The Rent Controller, on the basis of the evidence, granted the ejectment and came to the conclusion that the case of the respondent had remained unrebutted and that Danish had not come in Court and Anis had admitted that Danish was in Karachi.

7. Mr. Muhammad Sadiq has not been able to show me anything wrong with the judgment in question. Evidently the tenancy was with Danish and it has been admitted by D.W. Anis that Danish had left the' premises and was residing somewhere else. This admission of Anis was contrary to what had been contended in the written statement by Danish that he was residing in the disputed premises, therefore, the written statement and the deposition on behalf of the appellant were contradictory to each other. There is no doubt about the fact that Danish had left the premises in 1977 and he had no connection with the same now except that his brother and father are residing in the premises. But they are different from him and they are not his heirs as he is still ‑living.

8. Mr. Muhammad Sadiq wanted to argue that there was a waiver of rights by the respondent. In the first instance no such plea was taken in the written statement and on the other hand the written statement had contended that Danish Iqbal was still residing in the premises. But the evidence of the appellant's brother, namely, Anis had admitted that he was not living here any more. The plea of waiver is a mixed question of fact and law and unless the same had been specifically raised in the lower Court and an issue in respect of the A same is framed and the parties are allowed to lead evidence in support and in rebuttal of the said plea, the same cannot be allowed to be raised for the first time in appeal. Therefore, this plea is not open to the appellant.

Consequently, I dismiss this appeal. However, I will allow 6 months time to the appellant to hand over the possession to the respondent provided he deposits the rent as ordered by the Rent Controller. Direct writ of possession without notice 'to the applicant will be issued after 6 months from today or earlier if he fails to deposit the rent.

H . B . T . Appeal dismissed

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