1980 PLP 1414 (CLC)

This second appeal has been filed by the appellant, Muhammad Yousuf, to challenge an order of ejectment passed against him.

2. Thus property in respect of which the order of eviction has been made is a portion of a house. It was transferred to Mst. Zainab Bibi, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. She alienated this property in favour of Mst. Bashiran Bibi who, in turn, sold it to respondent No. 1, Muhammad Hassan, hereinafter referred to as the respondent. At the time of 'the purchase of the property by the respondent it was occupied by the appellant as a tenant. The respondent sought his eviction on the ground that he needed the property for his own occupation. The appellant resisted the application denying the relationship of landlord and tenant between him and the respondent. It was also contended by him that the application was not competent because no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act or under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, was served on him.

3. The Rent Controller, who was seized of the 6jectment application, framed the following preliminary issues for determination :- (1) Whether relationship of landlord and tenant existed between the respondent and appellant No. 1. (2) Whether appellant No. 1 was served with notice under section 30 of Act 28, 1958. (3) Whether respondent No. 1 was entitled to notice under sec tion 13-A. (4) If issue No. 3 is proved, whether appellant No. 1 was served with notice under section 13-A. After recording the parties' evidence, the learned Rent Controller decided all the issues in favour of the respondent. During the course of his examination as a witness, it was stated by the appellant that he had not paid any rent to the respondent. The learned Rent Controller, therefore, without holding any further inquiry in the case, ordered his ejectment on the ground of default.

4. Feeling aggrieved by the order of the learned Rent Controller, the appellant went in appeal before an Additional District Judge but without success. He has, therefore, come up in second appeal to this Court.

5. Learned counsel for the appellant contended that the learned Rent Controller was not justified in ordering ejectment of the appellant on the ground of default because that ground had not been pressed in the applica tion for ejectment of the appellant nor it was made the subject-matter of any of the issues framed in the case. The argument proceeds that a party cannot be allowed relief on the basis of the plea which does not find mention in the pleadings and of which notice is given to the opposite party in any other manner.

6. It was not denied by the learned counsel for the respondent that the respondent had not asked for ejectment of the appellant on the ground of default. He, however, maintained that since the appellant had. not paid rent to the respondent, learned Rent Controller could order his ejectment for non-payment of rent even though the plea of default had not been specifically raised by the respondent. He relied on Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (1978 S C M R 299) to support his argument.

7. As for the cited case, I have no dispute with the preposition that if in any -ejectment proceedings, based on the plea of default, the relationship of landlord and tenant is denied by the respondent, without alleging pay ment or tender of rent in regard to which default is alleged to have been committed, but the said relationship is found to exist between the parties the Rent Controller can straightaway order the ejectment without holding any further probe into the question of default. In the present case, how ever, admittedly, the appellant's ejectment was not sought on the ground of default. The ejectment application was also not subsequently amended by the respondent to add that plea. The only plea raised by the respondent for securing eviction of the appellant was that of personal need. This is evident from his application. In this case the respondent also filed replication in which it was expressly stated that "ejectment is sought only on that basis and not on account of any other plea". This clearly implies that he had abandoned all grounds other than that of personal requirement which were available to him for claiming ejectment of the appellant: It was not the case of the learned counsel for the respondent that after the relationship of landlord and tenant had been established, the learned Rent Controller could order ejectment of the appellant on the ground of personal need without holding any further inquiry. He could not cite any authority for the proposition that a party can be allowed relief on the basis of a plea which is not taken in the pleadings nor notice thereof is otherwise given to the opposite party during the course of the proceedings. He laid great stress on the admission of the appellant regarding the non payment of rent with a view to justifying the order of ejectment made against the appellant. To my mind, however, the statement of the appellant regarding non-payment of rent does not enable the respondent to get over the difficulty faced by him due to abandonment of the ground of default. That statement was made by the appellant not for conceding the pica of default, which was not at all raised, but for supporting hi contention that he was not a tenant under the respondent because when b made the statement he was being examined on the preliminary issues on of them being in regard to relationship of landlord and tenant between the parties. I am, therefore, of the considered view that the learned Rent Controller had fallen in error in ordering ejectment of the appellant on the ground of default which ground had been, by implication, abandoned b the respondent while filing his replication. In this view of the matter, hi. order as well as that of the learned appellate authority are not sustainable:

8. In result, I accept the appeal with costs, set aside the order of eviction passed against the appellant and remand the case to the learned Rent Controller with the direction that he shall decide it afresh in accordance with law and in the light of the above observations: It has been stated at the Bar that the learned Rent Controller who decided the ejectment application has since been succeeded by Mr. Muhammad Aslam Bhatti. The parties are, therefore, directed to appear before' Mr. Muhammad Aslam Bhatti, Rent Controller, Lahore, on 10th February, 1980 for further proceedings. M. Y. M. Appeal accepted.