' This second appeal is directed against the order, dated 1st December, 1973 passed in appeal whereby the learned Additional District Judge, Lahore dismissed the ejectment application.
2. Having obtained on 6th December, 1961 transfer of the property in dispute in her name, Begum Musarrat shoukat Hayat Khan appellant landlady issued a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) which was served on Maqbool Ahmad respondent-tenant on 18th March, 1964. She then made an application on 8th February, 1967 for the ejectment of the tenant alleging that he had defaulted in the payment of rent at the rate of Rs, 6 per month for the period from 6th December, 1961 to 5th February, 1967. Various objections to the notice, jurisdiction and relationship of the parties were raised and the same having been decided, the respondent-tenant was on 13th December, 1968 directed by the Rent Controller under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) to deposit arrears from 1st November, 1965 to 1st November, 1968 and to continue paying future rent before 15th of each succeeding month. It was alleged that the tenant had paid the arrears and was regularly going on paying rent by the statutory date.
3. After recording evidence, the Rent Controller found that the respondent had failed to pay rent from December, 1964 to January, 1967 and consequently he was ordered to be ejected. The respondent-tenant made an appeal which was allowed by the learned Additional District Judge and the ejectment petition was dismissed. He held on the basis of the money order coupons Exh. R.
1 to Exh. R. 3 that the respondent had tendered a sum of Rs, 180 on 18th March, 1964, as rent from 6th December, 1961 to 30th June. 1964 and that it could not be said that he was a defaulter.
4. Lengthy arguments were addressed on behalf of the parties, but I find that the learned Additional District Judge has failed to look into the entire dispute. In her application for ejectment the landlady had asserted that arrears of rent from 6th December, 1961 to 5th February, 1967, amounting to Rs, 366 were due from the respondent which he had not so far paid. The learned Additional District Judge gave a finding in respect of the period from 6th December, 1961 to 5th June, 1964 and on the basis of some of the money order coupons he made an observation that the respondent was successful in tendering rent for that period. He, however, did not say if rent from 6th June, 1964 to the date of institution of the application was paid or tendered by the respondent within time. This omission on the part of the learned Additional District Judge shows that he did not decide the whole dispute. His decision is, therefore, incomplete and for that reason it cannot be sustained.
5. It was argued on the basis of Afaquz Zubair v. Muhammad Idris (1) that the respondent did not commit any default in so far as admittedly he had paid the rent arrears within the statutory period, and unless therefore, a fresh notice of demand was served by the landlady and default was committed by the respondent in the payment of arrears within 3 months from the date of receipt of such notice, obviously the condition precedent for bringing the case within the ambit of normal law could not be fulfilled. 1 cannot give importance to this aspect because such a plea was not raised ever before. The objection taken in the written statement that a statutory notice was not served on the respondent related to the first notice which was said to have been served on 18th March, 1964. It was never gitated that 'a fresh notice was also required to be served on the respondent and without that he was not liable to be ejected. The objection to the jurisdiction of the Rent Controller also did not cover the point determined in the aforementioned Karachi case. I do not agree with the {{FOOT NOTE}}
(1) PLD 1978 Kar. 984 {{FOOT NOTE}} learned counsel that the said plea, being a question of law, could always be raised although not specifically mentioned in the pleadings. The question whether a fresh notice demanding further rent from the date of service of the first notice was a condition precedent and whether such a notice was served on the respondent is a mixed question of law and fact and it cannot be alloyed to be raised for the first time in second appeal, the reason being that if such a point had been raised in time, then the landlady, on being given an opportunity to meet the situation, might have produced evidence and proved that she did serve such a notice. Since it is too late a stage, I cannot allow this point to be agitated so as to open the entire case once again putting the parties into a further litigation.
6. The learned Additional District Judge, while disposing of the appeal, did not consider the evidence to conclude if actually the respondent had defaulted in the payment of rent from 6th June, 1964 to the date of the institution of the ejectment application. I, therefore, take up this aspect myself rather than remand the case for such decision to be made by the learned Additional District Judge. Sufi Abdul Qadir P. W. 1 had been the general attorney of the appellant landlady. He stated that the tenant did not pay any rent. In view of this statement, it was then for the respondent tenant to prove that he had paid such rent. All that was paid by the respondent was the rent upto 6th June, 1964 and not further. No document showing payment beyond the said period is found on record. Payments in compliance of the order passed under section 13 (6) of the Ordinance cannot be deemed to be the payment under the notice of demand. It is thus clear that the tenant had defaulted in the payment of rent from 6th June, 1964 to the date of filing of the ejectment application. This being so the respondent-tenant is not protected by the relevant provisions of law.
The learned Additional District Judge was, therefore, not justified in holding that the respondent was not a defaulter.
' For the reasons given above the appeal is accepted, the order of the learned Additional District Judge is set aside; and maintaining the order of the Rent Controller the respondent-tenant is ordered to be ejected from the property in dispute. The parties are, however, to bear their own costs.