' The petitioner admits to be the lessee of the respondent/plaintiff in a house situate in village Fazilpur. Tehsil Rajanpur, District D. G. Khan at a rental of Rs, 10 per month. The respondent tiled a suit for possession against the petitioner on the ground of his being a defaulter in the payment of rent claiming that the petitioner was liable to pay rental at the rate of Rs, 35 per month and further that he had committed default for a period of 14 months.
2. The suit was contested by the defendant on the ground that rental of Rs, 10 per month only was payable and that he had committed no default. He also claimed adjustment against the lessor on account of improvements and repairs made to the extent of Rs, 500 in the demised premises.
However, he led no evidence in defence. The trial Court by its judgment and decree dated 3-11-1977, therefore, held that issues Nos. 1 and 3 the burden of which lay on the defendant and which were with regard to the suit being barred by res judicata and the defendant being entitled to adjustment towards rent respectively against the defendant. With regard to issue No, 2 the Court held on the basis of the statements made by the petitioner and his two witnesses P. W. 1 Irshad and P. W. 2 Lala that the petitioner was in default to the extent of Rs, 490 on account of rent. Accordingly it was directed that the plaintiff/respondent be put in possession and that the defendant pay arrear of rent of Rs, 490 and also future rent at Rs, 35 per month from the date of institution of suit till the date of ejectment. The petitioner/defendant filed an appeal where for the first time he averred that no notice had been served upon him under section 106 of the Transfer of Property Act, 1882. The learned Additional District Judge by his judgment and decree dated 29-4-1978 dismissed the appeal of the petitioner/defendant and held that the plea of non-service of notice was not taken in the written statement and was being urged for the first time before the appellate Court, and observed that it shall be considered to have been waived. The learned Judge confirmed the findings of the trial Court with regard to issue No, 2.
3. Before me learned counsel for the petitioner does not deny that no plea with regard to non- service of notice under section 106 was taken before the trial Court, but he has drawn attention to the concluding paragraph of the judgment of the trial Court in which whilst determining the question of costs it was observed by the trial Court that no separate notice for ejectment had been served upon the defendant. He further argued that non-service of notice was a question of law which could be taken up before the appellate Court for the first time and that it was actually taken up in the memorandum of objections.
4. I regret that I cannot agree with the submission of learned counsel that non-service of notice is a question of law. It is basically a question of fact which has to be asserted and thereafter legal consequences naturally flow therefrom.
5. In this context reference may he made to the provisions of Order VI, rule 6 of the Code of Civil Procedure which provides that any condition precedent the performance or occurrence of which is intended to be contested shall be distinctly specified in the pleading by the defendant, and subject thereto an averment of the performance or occurrence of a condition precedent necessary for the case of the plaintiff shall be implied in his pleadings. It, therefore, follows that it will be implied in the pleadings of the plaintiff that the condition precedent necessary i,e, issuance of notice under section 106 afore-referred, had been fulfilled and it was for the defendant who now contests the performance of this condition, to urge that it had not been performed.
6. Learned counsel in this context relied on a judgment of the Supreme Court in the case of Aushutosh Basuk v. S. M. Rehmat Ullah (1), to submit that a notice to quit is necessary for terminating the lease. There can be no quarrel with this proposition, but an examination of the report shows that it was admitted in that case that no notice to quit had ever been served. This is not so in the present case where no allegation about non-service of notice was made before the trial Court. The performance of this condition precedent is to be deemed to have been implied in the pleadings of the plaintiff as provided by Order VI, rule 6 afore-referred. Had an averment with regard to non-service of notice under section 106 afore-referred been made, it would have put the plaintiff to proof of the same and thereafter it cannot be disputed that where service of notice is not proved ejectment cannot be ordered. It is settled law that all pleas of fact must be taken by the parties in their pleadings and the opposite party cannot be allowed to be taken by surprise. It was incumbent on the {{FOOT NOTE}}
(1) 1970 SCM R 386 {{FOOT NOTE}} ' petitioner/defendant who alleged non service of notice to have specifically alleged non service of notice. I cannot accede to argument of learned counsel that non service of notice stands established in the concluding paragraph of the judgment of the trial Court, because as admitted by hint such a plea was not raised by the defendant and further learned counsel was not able to show that this finding could be supported either on the basis of the pleadings or the evidence led before the trial Court or the record of the trial Court. No weight, therefore, can be given to such observation.
7. Learned counsel thereafter referred to a judgment of this Court in Balgees Sultame'v. Settlement Commissioner (1), in which it was held that no question of waiver would arise where the party sought to be made liable was unaware of the rights alleged to have been waived. There can be no quarrel with this proposition but it cannot be said in this case that the petitioner was not aware of the fact of service or non-service of the notice. In fact only the petitioner could have alleged non- service of notice. Learned counsel also relied on the judgment in Mst. Bachi Bai v. Ghulam Abbas (2), which case arose out of ejectment proceedings under the Rent Restriction Ordinance of 1959 and in which the Court repelled the plea of the tenant that the mere fact that a landlord had delayed in applying for the striking off of the defence of the tenant under section 13(6) of the Ordinance could not lead to the inference that he had waived his right to do so. It will be seen these observations are not attracted to the facts of this case where no question of delay in raising the plea arises. The plea was simply not raised. Learned counsel also relied upon the judgment in Shah Alam Co-operative House Building Society v. House Building Finance Corporation (3), where it was held that in commercial agreements the non-enforcement of a penalty clause by the person entitled to do so will not amount to waiver. The facts of this case deal with completely different situation, and are not attracted to the case in hand. Learned counsel lastly relied on the judgment in Province of East Pakistan v. Messrs Allah Wala (4), where it was held that a notice under section 106 issued by an unauthorized person could not have the effect of terminating the tenancy. This is obviously so but I do not see how this judgment is relevant in the present case.
9. In these circumstances 1 do not find any jurisdictional defect in the findings and orders of the lower appellate Court with regard to issue No,
2. It was for the petitioner/defendant to plead non- service of notice. Also I do not find any error or defect in the finding of both the Courts below with regard to petitioner being a defaulter and with regard to his not having proved adjustment claimed by him. In these circumstances, there is no force in this petition which is rejected.
Petition rejected. {{FOOT NOTE}}
(1) PLD 1975 Lah. 185 (2) PLD 1972 Kar. 278
(3) PLD 1972 Kar. 178 (4) PLD 1971 SC 476 {{FOOT NOTE}}