MANZOOR AHMAD KHAN vs Mst. MINHAJUNNISA

1. ' MUHAMMAD Gun, J.-This petition for special leave by a defendan arises in a money suit for the recovery of Rs, 5,000 on account of arrears of rent of a building. The claim was decreed by the Court of Small Causes, Karachi, against the petitioner, against which a revision filed by him was dismissed by a learned Single Judge of the High Court at Karachi, against which the petitioner now seeks leave to appeal.

2. ' By means of two agreements dated 31-12-1969 and 17-3-1971 the petitioner rented a building for the purposes of running a secondary school called "Zahoor Secondary School" on a monthly rental of Rs, 1000. The rent due for the months from April to August, 1972 both months inclusive, remaining unpaid, the respondent-landlord filed a suit in the Court of Small Causes Karachi, for the recovery of the amount.

3. ' The fact that the petitioner entered into the aforesaid agreements with the respondent and that the rent due for the months from April to August, 1972 was not paid was not denied. The petitioner however, sought to avoid the liability for the amount, on the ground that on coming into force of Martial Law Regulation No, 118 from 1st October, 1972 the past liability for the amount sued for had been transferred to the Provincial Government, in whom the management and control of the school became vested under the Regulation. The learned Judge of the Small Causes Court basing himself on the provisions of paragraph 5 of the Regulation came to the conclusion that there was nothing to show that the Provincial Government had taken over the management and control of the school on 1-10-1972, when the Martial Law Regulation came into force or at any subsequent date. Indeed paragraph 5 of the Regulation envisages the issuance of a notification in the official Gazette by the Federal Government or as the case may be, the Provincial Government specifying the date from which the management and control of the school shall vest in the Government concerned. No such notification was produced by the petitioner either before the learned trial Judge or even at the revisional stage in the High Court, to show that the management and control of Zahoor Secondary School was taken over by the Provincial Government at any time on or after 1- 10-1972. Accordingly, the respondent's claim was decrced. In the revision filed by the petitioner, the learned Judge in the High Court aiso referred to the Sind Act XX of 1972 whereby Paragraph 10 of the Martial Law Regulation was amended, so as to relieve the Provincial Government of all the pre- existing liabilities and taxes in respect of the private schools taken over by the Government under the Regulation.

4. The petitioner's learned counsel sought to argue before us that the Zahoor Secondary School was taken over by the Provincial Government immediately on coming into force of Martial Law Regulation No,

118. In support of that contention, he requested for permission to place on the record a copy of the notification issued under Paragraph 5 of the Regulation. Having failed to produce notification earlier, although the petitioner's learned counsel was specifically asked so to do, in the High Court we do not see any reason to allow the petitioner to fill an obviouse lacun in the evidence in support of his case. To allow new evidence at this stage, would be putting premium on the petitioner's gross indifference in the conduct of his case. Indeed, learned counsel could not assign any reason for the petitioner's failure to produce the copy of the notification at the appropriate stage.

5. ' Learned counsel also submitted that the petitioner had signed the agreements not in his personal capacity, but as a Secretary of the Zahoor Educational Society, which was registered under the Registration of Societies Act, 1860. Both the trial Court and the High Court found that there was nothing to show that the petitioner had not incurred personal liability under the agreements. That being primarily a question of fact cannot be agitate in this Court.

6. ' Finally, it was submitted on behalf of the petitioner that the two agreements were not sufficiently stamped and wrongly admitted in evidence. As rightly observed by the learned Judge, it was too late to object to the admissibility of the two agreements, once they were exhibited on the record.

7. There is no merit in this petition, which is hereby dismissed.