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First Rent Appeal No.386 of 1983, decided on 11th August, 1986.

---S.15(2)(ii)--Default in payment of rent--Proof--Lump sum payment of rent accepted by landlord not as matter of agreement or practice, but simply to accommodate tenant, held, could not waive default committed by tenant by not paying rent in accordance with tenancy agreement which provided that rent should be paid on expiry of each month.

1985 C L C 2066 and 1985 M L D 1256 ref.

---Ss.2(a) & 15--Plot in industrial area--Jurisdiction of Rent Controller whether barred--Jurisdiction of Rent Controller qua open plot situated in industrial area, h-old, would be barred only if such plot was rented out with machinery and industry--Mere fact that rented plot happened to be situated in industrial area, would not .bar jurisdiction of Rent Controller.

--Ss.15 & 21(1)--Jurisdiction of Rent Controller, objection' to- Question of jurisdiction of Rent Controller being mixed question of law and fact, same held, should be challenged at the earliest opportunity--However, jurisdiction of Rent Controller could be challenged at appeal stage, provided no further evidence was required to substantiate it.

Mr. Dastigar for Appellant.

I.I.Suleman for Respondent.

Date of hearing: 11^th August, 1986.

The appellant filed an ejectment application against Zahoor Ahmad in respect of Industrial Plot No.153 Sector 27 Korangi Industrial Area, Karachi which was rented out to him on a monthly rent of Rs.350. The allegations were that he had defaulted in payment of rent from 1-1-1974 till the filing of the ejectment case on 2-8-1974. It was further alleged that unauthorised construction has been made without the consent of the appellant. The appellant also alleged that he requires the said premises for his personal use for establishing industry. During the pendency of the case Zahoor Ahmad died and the respondent being his son was brought on record. In the written statement tenancy was admitted but it was denied that rent was Rs.350 per month. According to the respondent Rs.200 p.m. was the rent. The default claimed by the appellant was denied and it was pleaded that in the year 1970 the appellant asked the respondent's father to pay rent in lump sum for a period of six months or 12 months and accordingly all along the rent has been paid. It was further pleaded that the appellant has been in the habit of receiving rent periodically and never objected to this practice. The rent for January to June 1974 was tendered to the appellant who avoided to accept it whereupon it was remitted by money order which was refused. Under these circumstances it was stated that no default has been committed. So far unauthorised construction is concerned the same is denied and it was pleaded that respondent's father had constructed two rooms in 1968 and two rooms and half shed in the year 1973 at his own costs of about Rs.22,000 but it could not be completed as the appellant asked his father in October, 1973 not to carry on further construction which he complied. All other allegations made against the respondent were denied. The learned Controller dismissed the ejectment application.

Mr. Dastigar the learned counsel for the appellant contended rest the alleged practice cannot waive the default committed by the respondent an the that lump sum payment was accepted to accommodate the respondent and not as a matter of agreement or practice. On the other hand Mr.I.I. Suleman, the learned counsel for the respondent contended that as the appellant had agreed the rent to be paid after every six months or 12 months which has accordingly been paid regularly no default has been committed. Under the agreement of tenancy dated 18-5-1967 the rent was to be paid on the expiry of each month. The respondent has relied on the receipts produced by him which show that the payments were made after six months or one year. Payment of rent in this manner does not create any practice E nor it proves any waiver on the part of the appellant. The tenancy was created in 1967 but such mode of six monthly or annual payments were made from 1971 onwards which means that before this monthly payments were made. The learned Counsel for the appellant 'contended that the default has been alleged in respect of the months of January 1974 to July 1974. The learned counsel further contended that even after filing the ejectment application the respondent did not pay rent upto April 1975 and deposited the same after order dated 26-4-1975 had been passed. According to the learned counsel there is further default for payment of rent from August 1974 to April 1975 which is sufficient for grant of ejectment. In this regard the learned counsel has referred to 1985 C L C 2066 and 1985 M L D 1256. The learned counsel for the respondent has contended that under the agreement rent was Rs.200 per month but it was to be enhanced to Rs.350 after the construction had been completed by the respondent and as the construction has been made the rent should have been Rs.150 per month. On this basis it is claimed that the balance of excess rent paid should be adjusted towards the rent. The appellant has stated that the construction was not fully completed and even if construction was raised the respondent did not in terms of agreement pay Rs.150 per month and in fact this particular part of the agreement was never acted upon. The respondent himself continued to pay Rs.200 which was accepted by the appellant without any objection. In these circumstances the plaintiff cannot take advantage of the clause in the agreement to wipe out the default. From the evidence and facts ors record the appellant has established default in payment of rent.

The learned counsel for the respondent then contended that the Controller has no jurisdiction as the plot is an industrial plot. The jurisdiction of the Controller is barred in case where a plot with machinery and industry is let out to the tenant. Here only an open plot has been let out. Although it is situated in an industrial area it does not mean that the jurisdiction of the Controller is not attracted. In any event Mr. Dastigar Advocate has rightly pointed out that the respondent did not challenge the jurisdiction of the Controller and cannot raise it at this late stage. Mr.I.I.Suleman Advocate contended that as it is purely a question of law it can be raised in appeal. The question relating to jurisdiction should be raised at the earliest opportunity. It can be raised even in appeal provided no further evidence is required to substantiate it. It was open to the respondent to have raised this plea and asked for additional evidence but no such step was taken by him. In the present case question of jurisdiction is a mixed question of law and fact and therefore in my opinion at this belated stage it is not proper to allow the respondent to raise such objection. However on the basis of the material on record the jurisdiction of the learned Controller cannot be challenged. According to the agreement open plot was rented out to the respondent without any machinery. The impugned order of the learned Controller is set aside and the appeal is allowed. The respondent is allowed six months time to hand over vacant possession of the premises to the appellant.

H. B. T./M-174/K Appeal allowed.

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