1985 PLP 1462 (SCMR)

M.S.H. QURAISHI, J.‑‑In an ejectment proceeding instituted in 1966 by the respondents/landlords, the Controller, after deciding the preliminary issues in favour of the respondents, passed an order under section 13(6) of the West Pakistan .Urban Rent Restriction Ordinance (VI of 1959), on 29‑6‑1967, directing the petitioners/ tenants to deposit arrears of rent amounting to Rs.1,583.33 by 29‑7‑1967 and future rents at the rate of Rs.15 p.m. before the 15th of each succeeding month. The title of the landlords, however, came under cloud but was finally settled in their favour by this Court in 1983, whereafter they moved the Controller for striking out the petitioners defence which was ordered on 4‑12‑1983 and the petitioners were directed to be ejected. Their appeal having been dismissed on 4‑11‑1984 by the Additional District Judge, Lahore, they filed a writ petition which, too, was dismissed on 5‑3‑1985. The challenge to the validity of the order of deposit of rent on the ground that it included rents beyond the period of three years prior to the institution of the ejectment application, was repelled by the High Court for the reason that it was being raised for the first time in the extraordinary constitutional jurisdiction after a period of about 17 years and as such they could not be permitted to agitate the point at that late stage in the circumstance of the case.

2. The contention before us is that the inclusion of the rents beyond three years prior to the filing of the ejectment application had made the order of deposit, dated 29‑6‑1967 wholly illegal and, therefore, the petitioners could not be held liable for its non‑compliance, that the provision of section 13(6) being penal in nature the order must be valid in order to command its compliance and attract the penalty and that the petitioners even if they had not appealed from that order on that ground, could challenge the order whenever the same was sought to be enforced against them. It is urged that the question of validity of the deposit order even if not raised earlier, could be raised for the first time in the writ jurisdiction of the High Court. For this, reliance was placed on Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner PLD 1964 S C 829, Karam Din v Settlement and Rehabilitation Commissioner P L D 1970 Lah. 766, Chittaranjan Cotton Mills Ltd. v. Staff Union P L D 1971 S C 197, Sind Road Transport Corporation v. Adil Hussain P L D 1975 Kar. 1056, Ali Muhammad v. Hussain Bakhsh PLD 1976 S C 37 and Abdul Sattar v. Additional District Judge, Rawalpindi 1984 S C M R

925. There is no absolute rule that a ground not taken before the Tribunal cannot be allowed to be raised for the first time in writ jurisdiction nor that a party is entitled as of right to raise for the first time in the writ jurisdiction a ground not taken before the earlier forums. The Court has a discretion in the matter depending on the circumstance of each case. The order of deposit of arrears of rent, at the time it was made, was in accord with the law as then interpreted by a Full Bench of the Lahore High Court in Ashfaq‑ur‑Rahman Khan v. Muhammad Afzal P L D 1965 Lah. 59 which held the field until it was reversed in appeal by this Court (see P L D 1968 SC 230). It may be noted that the petitioners had filed appeal against the finding on the preliminary issues which was dismissed by the Additional District Judge on 7‑3‑1969 and a further appeal before the High Court which was dismissed on 8‑5‑1983 for non‑prosecution. The ground for challenge to the validity of the rent deposit order on account of inclusion of arrears of rent for more than three years had thus become available but had not been taken by them. For this, no explanation is furnished. Nor is any explanation available for the petitioners' failure to deposit at least the future rents in respect of which no legal infirmity is pointed out. In these circumstances the High Court was not unjustified in refusing to permit the petitioners to raise the ground for the first time at so belated a stage This petition for leave to appeal is, therefore, dismissed. M.I. Leave refused