Mst. ABBASI BEGUM vs Mst. GHULAM FATIMA
This matter arises from a petition for leave to appeal against the dismissal of the petitioner's second appeal by the Lahore High Court, upholding the eviction order passed under the West Pakistan Urban Rent Restriction Ordinance, 1959. The respondent landlady filed an eviction application on the ground of default in rent, which was allowed by the Rent Controller and affirmed in successive appeals. The petitioner contended that the fresh eviction proceedings were barred under section 14 of the Ordinance due to protracted prior litigation. The core legal questions pertained to whether the fresh eviction application was barred by section 14 and whether it was founded on a fresh cause of action. The Supreme Court held that the application was based on a continuing default and a fresh cause of action arising after the settlement of demarcation disputes, and thus was not hit by section 14. Furthermore, the Court noted that the plea regarding the bar had not been raised in the written statement or urged before the High Court. Consequently, the petition for leave to appeal was dismissed.
- Whether a fresh application for eviction on the ground of default in rent is barred under section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959?
- Does a continuing default in the payment of rent furnish a fresh cause of action for eviction notwithstanding previous proceedings?
- Can a plea not raised in the written statement before the Rent Controller or urged in the High Court be permitted to be raised for the first time before the Supreme Court?
- Section 14, West Pakistan Urban Rent Restriction Ordinance 1959
1. MUHAMMAD AFZAL ZULLAH, 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.
2. 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.
3. 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.
4. 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.
5. 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 tohim, 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.