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Civil Petition No. 441 of 1970, decided on 5th October, 1983.

(On appeal from the judgment, dated 16‑5‑1978 of the Lahore High Court in S. A. O. No. 680 of 1977).

Art. 185 (3)‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 & 15‑Ejectment on ground of subletting of pre mises‑Order of Rent Controller directing ejectment of respondent tenant armed by Additional District Judge but reversed by High Court‑Leave to appeal granted to consider contentions that ground on which High Court decided matter was neither pleaded by respondent tenant nor any issue framed to that effect and that some material evidence was also overlooked.

Rana Abdur Rahim Khan, Advocate Supreme Court with Laka Haider Advocate Supreme Court and Rana Maqbool Ahmad, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 5th October, 1983.

The petitioners had let out their shop on rent to respondent No. 1. According to them, the said respondent further sublet the shop in favour of respondents Nos. 2 and 3. The petitioners, therefore, moved the Rent Controller for ejectment of the respondent on the ground that he had sublet the premises to respondents Nos. 2 and 3 and, thus, made himself liable to ejectment.

2. The following issues were framed by the Rent Controller:---

(1) Whether respondent No. 1 has subletted the disputed shop to respon dents Nos. 2 and 3

(2) Relief.

3. The Rent Controller held that respondent had, indeed, subletted the shop in dispute to the other respondents and as such the respondents were liable to eviction. He, therefore, directed them to hand over the possession of the shop 'to the petitioners. The appeal failed by the respondents before the Additional District Judge failed but on second appeal, a learned Judge of the High Court held that although the respondent No. t had, indeed, subletted the shop to respondents Nos. 2 and 3 and they had constituted a firm, but the evidence showed that the petitioners were receiving the rent for years from the respondents, who were doing business there and their conduct showed that they had waived their right to eject them on account of subletting. Hence they were estopped to invoke their right of seeking ejectment on the ground of subletting which they had abandoned by their conduct by accepting the firm as their tenant. The appeal was, therefore, allowed and the orders of the two Courts below ordering their ejectment were set aside. Hence this petition for leave to appeal.

4. Rana Abdur Rahim, learned counsel for the petitioners has contended that the ground on which the High Court had decided the matter was neither pleaded by the respondents nor any issue was framed to the sale affect and that the High Court was not justified in making out a new case for the respondents, which was neither pleaded by them nor on which there was any issue and accordingly, no evidence had been led directly on this aspect of the matter. He further contended that some material evidence was also Over looked in this connection.

These contentions require further consideration. Leave is, accordingly granted.

Security Rs. 2,500.

5. The appeal to be made ready on the present record with liberty to the parties to add further documents and put up for hearing at an early date.

S. Q. Leave granted.

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