1. DORAB PATEL, J.---The dispute in this petition for leave relates to a house in Rawalplndi owned by the respondent. It bad been leased to the petitioner by ice respondent's predecessor-in-interest a: a monthly rent of Rs. 450 and the tenancy was an oral tenancy. On purchasing the house the respondent claims to have served a notice upon the petitioner to pay him rent, and, as rent was not paid, he filed an eviction application against the petitioner for his eviction before the Rent Controller, Rawalpindi on the ground that the petitioner bad committed willful default in the payment of rent, and, on the further ground that he required the house for his own occupation. The petitioner contested his eviction and filed his written statement. He challenged the respondent's title in his written statement. He also denied the allegation that ire bed committed default in the payment end according to learned counsel the petitioner's plea appears to have been that the respondent had not it Formed him that he hang purchased the house. In view of the petitioner's challenge to the respondent's title, this question was examined first by the Rent Controller and we were informed that the --Rent Controller held on 27-7-1976 that the petitioner "had admitted the respondent to be his landlord by his conduct". Accordingly, the Rent Controller passed order under subsection (6) of section 13 of the Rent Restric--tion Ordinance. 1959 (hereafter called the said Ordinance? Directing the petitioner to deposit future rent "with effect from August 1976 by the 14th of each month". But in breach of this order the rent of August 1976 was deposited on the 21st of September, 1976. The petitioner then deposited the rent of September, 1976 by 14th of October,1976 but he again committed default in depositing the rent of October, 1976 which was deposited as late as the 27th of November, 1976. Meanwhile en 22nd November, 1976. The respondent had filed an application for striking off the petitioner's defence on the ground that he had committed default in the deposit of tentative rent. The petitioner contested this application but the item Controller struck off his def-ice without examining the petitioner's objections. The petitioner, therefore, filed an appeal in the District Court, Rawalpindi. As we have riot been supplied with a copy of this appeal, we directed the learned counsel to give us particulars of this appeal. According to learned counsel, the petitioner had challenged in this appeal the finding that the respondent was his landlord and he had also challenged the Rent Controller's order striking off his defence. This appeal was dismissed by the learned District Judge, Rawalpindi on 15th Jane, 1977 and it would smear from this order that the only plea raised by the petitioner in the District Court was "that he wits a layman and believed and was advised that he could pay rent at any time". The learned District Judge examined tire order for the deposit of future tentative rents and held that there was absolutely no ambiguity about the direction to deposit future rent therefore, he dismissed the petitioner's appeal. The Petitioner teen fled a second appeal in the Lahore High Court which was dismissed by a learned Single Judge of the Lahore High Court on 1-10-1971. Hence this petition for leave.
2. We observed earlier that the Rent Controller had struck off the petitioner's defence without examining his grievances, therefore, the petitioner contended in the High Court that the case should be remanded to the Rent Controller for examining the validity of the grounds on which be hart contended that his failure to deposit tentative rent in August and October, 1976 did not amount to default in a well-considered judgment after examining the relevant authorities the learned Single Judge of the High Court took the view that it was not necessary to remand the cat: because the petitioner's grievances had had been examined by the District Court and he further examined them himself and held that there way no force in these objections.
3. We observed that one of the pleas of the petitioner was that he was under behalf "that he can pay pony at any time". This was the plot advanced before the District Court but the plea advanced before the High Court was that the petitioner wits disturbed on account of deaths of some relations. No particulars of these deaths were given to us nor do they appear to have been given in the High Court and the High Court rightly held that this objection was without any force. Another ground on which the petitioner challenged the order striking off his defence was that he had filed an appeal is the District Court against the order for the deposit of tentative rent, therefore, he was not required to comply with that order. As rightly held by the High Court, this objection was frivolous because the petitioner had not obtained any stay order pending the hearing of his appeal in the District Court. Finally, the third ground on which the petitioner had resisted the order striking off his defence was his contention that the respondent we not his landlord but this contention had been rejected by the Rent Controller and tae finding on the question of title was not even appealable, therefore the High Court rightly held teat there was no force in this objection ands dismissed the petitioner's second appeal.
4. No exception can be taken to the view in the judgment under appeal but learned counsel sought to challenge it on the ground that the respondent bad not served the petitioner with a notice to attorn him under section 13-A of the said Ordinance. Now learned counsel admitted that he had not appeared in the lower Courts and Mr. Nazir Akhtar who appeared on behalf of the caveator submitted that the respondent had served a notice under section 13-A on the petitioner before filing his eviction application and that this notice was in the file of the Rent Controller Court. The question whether the notice under section 13-A was served on the petitioner or not was a question of fact and as the contention that this notice had not been served was neither pleaded nor taken in the lower Courts, it was not fit to be examined by the High Court nor can we permit the petitioner to raise it before us.
5. The petition is without merit and is dismissed. Mr. Karam Elahi Bhatti requested that the petitioner should be given some time to vacate the demised premises. We accordingly direct that he shall handover the vacant possession of the demised premises to the respondent by the 31st January, 1978 and that he shall meanwhile continue to pay rent to the respondent.