1. ' This First Appeal is directed against order dated 19-2-1983 of Xth Senior Civil Judge, and Rent Controller, Karachi thereby allowing the ejectment application and the appellant is directed to hand over the vacant possession of the disputes within one month of the order.
2. ' The brief facts of the case are that the respondent is landlord and owner of premises bearing No, 52/E, Block No, 2, P.E.C.H.S., Karachi and the appellant is tenant in respect of 2nd Floor at the monthly rent of Rs,250 the respondent filed Rent Application No, 2589 of 1979 against the appellant on the ground of default for four months commencing from February, 1979 to May, 1979 and also on the ground of personal requirement for the use and occupation of his children bona fidely in good faith. The appellant filed written statement on 13-10-1978. The appellant denied contents of para 5 of the application and averred that the appellant was always regular in payment of rent. It was further averred that the rent was paid up to July, 1979 thereafter it came to the knowledge of his wife that a case of ejectment filed against him. The ground of personal requirement was also denied. It was averred that the respondent asked to enhance the rate of rent, the wife of the appellant explained the position and requested the respondent to wait till the return of the appellant. The respondent taking the advantage of the absence of the appellant filed the ejectment case on baseless and concocted ground of default and personal bona fide need.
3. ' The respondent examined himself and his son Dr. Khan Shamsul Haq in support of the rent application. The appellant examined his wife and attorney MRs, Jan Gul and his son Najeebul Hague.
4. ' The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided Issues 1 and 2 in the affirmative and allowed the rent application on the ground of default and for the requirement of son.
5. ' Mr. Faizuddin the learned counsel for the appellant has raised the following contentions:-
1. The Rent Controller has no jurisdiction to try the case.
2. The tenancy agreement is void and stamp duty has not been paid as provided by Article 35 of the Stamp Act.
6. ' The learned counsel also advanced submission that the Rent Controller has no jurisdiction to try the case as the Government of Sind has notified the territorial jurisdiction of the Controller Karachi and I may observe here that this submission is a half-hearted attempt to challenge the Rent Controller's jurisdiction.
7. At the outset, I must express my very great anxiety at the manner in which the order of the Rent Controller is being challenged for the first time at the appellate stage on the ground of want of jurisdiction. In my humble opinion, as the jurisdiction of the Rent Controller should not be permitted to plead as bar of jurisdiction (sic) objections are lightly entertained, I am afraid they will prolong litigation and defeat the ends of justice. There was no issue touching jurisdiction of the Rent Controller before the Court below and the appellant did not move for settling such an issue. The appellant filed memo. of appea which is also silent about this objection. The appellant, pressed it solely on the grounds available to him under section 15 of the Ordinance. This is because he dropped his objection about the Rent Controller's jurisdiction. I may quote here a passage from Spencer Rower on the law relating to Estoppel by representation (3rd Ed. 1977). The learned author observed at page 336 as follows:- "So, too, when a party litigant, being in a position to object that the matter in difference is outside the local, pecuniary, or other limits of jurisdiction of the tribunal to which his adversary has resorted, deliberately elects to waive the objection, and to proceed to the end as if no such objection existed, in the expectation of obtaining a decision in his favour, he cannot be allowed, when this expectation is not realized, to set up that the tribunal had no jurisdiction over the case or parties."
8. ' In the case of Ghulam Mohiuddin v. Chief Settlement Commissioner and 2 others PLD 1964 SC 829 the Hon'ble Supreme Court of Pakistan held:- "In these circumstances, it cannot be said that he was a mere passive spectator having no power prevent the commission of the illegality. If he had succeeded in the review in getting the entire house transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he has stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
9. The principles laid down in the above passage and the obser vations of the Hon'ble Supreme Court are fully applicable to the facts of the present case and the appellant is estopped from challenging th Rent Controller's jurisdiction.
10. ' Furthermore, even otherwise there was no merit in this objection. In pursuance of the provisions of clause (b) of section 2'of the Sind Urban Rent Restriction Ordinance, 1959 and in continuation of Notification No, HG-10/59, dated 16-3-1959 the Government of West Pakistan by virtue of Notification No, Judl. -1-17(4)/59, dated 21st December, 1964 appointed all First Class and Second Class Civil Judges in West Pakistan except Kalat Division to perform the functions of Controller under the Rent Restriction Ordinance in the Urban areas within the limits of their respective civil jurisdiction. Section 23 of the West Pakistan General Clauses Act, 1956 provides that where any Act is released or re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification made or issued under the released Act, shall so far as it is not consistent with the provisions re-enacted continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless or until it is superseded by any appointment, notification made or issued under the provisions so re-enacted. Section 2(b) of the Ordinance No, XVII of 1979 defines the word "Controller" means a controller appointed under section 4 and includes a person working as controller immediately before coming into force of the said Ordinance. Proviso to section 4 provides thing- the persons working as controller shall continue to exercise their respective jurisdiction until it has been altered by Government.
11. ' The learned Counsel has contended that the agreement of tenancy is void. However he has raised point which, as the perusal of the order of the Rent Controller below, discloses, was not raised and were not argued before him. There was no issue touching the tenancy agreement as void nor did the appellant claims or moves for settling such an issue. It is too late in the day to agitate the question of tenancy agreement is void. At this late stage this question cannot be permitted to be argued.
12. ' The learned counsel for the appellant has contended that the appellant has not committed any default as rant could not be paid without seeking permission of the State Bank of i-arista. In support of this contention reference has been made to section 5 of the Foreign Exchange Regulations Act, 1947. Section 5 of the Act will not apply as the rent was to be paid from the money deposited with his wife at the time of his departure. The contention cannot be accepted as the payment of rent was not in violation of the provisions of section 5 of the Act. The learned counsel for the respondent has contended that the objection that the payment of rent was in violation of the provisions of the Act, was not taken in the written statement and before the Rent Controller, respondent would have adduced evidence to show that the State Bank also did not object to the transaction. It has been contended that as this plea was not taken before the Rent Controller. It cannot be enter tained. I am of the view that the payment of rent to the respondent is not hit by the provisions of section 5 of the Act is supported by the fact that no such objection was taken in the written-statement or at the time of trial.
13. ' The contention of the learned counsel for the appellant is that the appellant had not committed default. The respondent stated in his application that the appellant had committed default in payment of rent for the months of February, 1979 to May, 1979. The appellant admitted pares. 1 to 4 of the rent application. The appellant stated in para. 3 of the written-statement that the rent was paid by cheque and as well as in cash but the respondent never issued any receipt of rent. As regards contents of pars 7 it was averred that the respondent received the last cheque dated 7-2- 1979 and thereafter the appellant left the country as his wife made the payment of rent in cash up to July, 1979, She requested but the respondent avoided to issue the same saying that he had never given any receipt ever. to her husband. The respondent in his deposition stated that the appellant never paid him any cheque after the cheque for January, 1979. He also stated that it is incorrect that the appellant gave him a cheque dated 7-2-1979. The respondent denied a suggestion made to him in cross-examination about collecting rent in cash from the wife of the appellant after his departure. The wife and attorney of the appellant stated in her deposition that the appellant paid the rent through cheque up to February, 1979 when he left Pakistan for U.S.A. The respondent did not cash the last cheque dated 7-2-1979. After February, she paid the rent directly to the respondent in cash. The respondent did not issue any receipt of rent when she made payment in cash. When she asked for the receipt the respondent told her that he had never given any receipt even to her husband. Shea further stated that the respondent collected rent up to July, 1979. She admitted in her cross-examination that her husband left for America on 4-4-1979 and paid rent up to April 1979 by cross-cheques to the respondent. She did not remember the dates of cheques by which rent for the months of March and April, 1979 was paid to the res ion lent. After the month of April she paid rent to the respondent by cash. It is pertinent to note that in her cross- examination she stated that the appellant had left Pakistan in April 1979 whereas in written- statement she stated that he left the country in February 1979. It is well-established that it is for the tenant to seek out the landlord and make the payment of rent. In the instant case the respondent' specifically specifically stated that the rent for the period of February, 1979 to1 May, 1979 was not paid by the appellant, the onus lay on the appellant to prove the factum of payment. The conclusion is that the respondent has successfully established that the appellant had committed default in payment of rent. I am fully satisfied that the order of the leered Rent Controller is in accord with law.
14. ' Learned counsel for the appellant has contended that the respondent has not proved bona fide requirement of the disputed premises. The respondent deposed that he is residing in his present house along with six sons and two daughters, His two sons were married when the case was filed and the third son got married during the pendency of the ejectment application. The respondent's other son Dr. Shamsul Haque has got three children and he is running his Clinic behind Jacob Lines, which is the disputed premises. The respondent wants to settle his son in the disputed premises. His son Dr. Shamsul Haque filed affidavit-in-evidence. He fully supported his father. The appellant's wife and attorney deposed that the respondent asked her for enhancement of rent and on her refusal deposed that the respondent does not require the premises for the personal bona fide use.
15. ' The sole question for determination in the case is whether the respondent has satisfied the legal requirement that the premises in question is needed by him for his son Dr. Shamsul Haque. In the present case the respondent had stated in his application for ejectment that he needed the disputed premises for settlement of his son who has got a Clinic near the disputed premises.
16. ' On the other hand, the only evidence adduced by the wife and attorney of the appellant in rebuttal was that the respondent asked her for enhancement of rent and after her refusal to enhance the rent filed ejectment application. The attorney of the appellant admitted that since the inception of the tenancy till today the number of the family members of the respondent have increased and his son is running Clinic behind Jacob Lines.
17. ' It was averred in the ejectment application that the respondent requires the premises for his son.
18. As 'against all the aforesaid evidence there is only word of the attorney of the appellant that the respondent asked her for enhancement of rent which request she declined and the respondent filed ejectment application.
19. It is apparent that the averment in the application about require ment of the respondent for his son has been supported in respondent's deposition and his son's deposition and nothing has been brought out in cross-examination which could show that claim of his son's occupation is to be false or is based on wrong statement.
20. It is well-settled legal position that the assertion of the landlord on oath as to requirement of the premises for his son's use is to be accepted if consistent with his averment in his application and not shaken in cross-examination or disproved in rebuttal. The evidence of the respondent in the instant case fulfilled the standard laid down in the case PLD 1976 Karachi 620. The dictum contained in the above case is approved by the Hon'ble Supreme Court in the case of Peerzada Rafiq Ahmed v. Chaudhry Abdur Rehman 1980 SCMR 772.
21. I, therefore, find no justification in the above appeal and it is, therefore, dismissed but I grant two months time to vacate the premises on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order. However, in case he will make default the respondent shall be entitled to file the execution application before the expiry of the above-mentioned two month's time.
22. ' In the circumstances, there will be no order as to costs.