1. ' MUHAMMAD AKRAM, J.-This is a petition for special leave from the judgment and order dated 2nd of June 1979, made by a learned Judge of the Lahore High Court at Lahore in accepting a second appeal filed by late Malik Bahauddin Advocate, predecessor of the respondents herein against the present petitioner.
2. ' The relevant facts in brief are that to begin with the first and the top floor of the property bearing No, SV-17-S-2/1 commonly known as 4-Mozang Road, Lahore, was let on rent to the petitioner, namely Mr. Muhammad Anwar Sipra Advocate by its owner Mst. Zahoor. Fatima on the 10th of June 1970. She sold the property to late Malik Bahauddin, Advocate and the petitioner then attorned to him tenant.
3. ' On the 1st of December 1975 late Malik Bahauddin filed an ejectment application against the petitioner before the Rent Controller, Lahore, on a number of grounds, inter alia, that he had raised unauthorised construction in the rented premises in violation of the terms of the tenancy between the parties. In his written reply the petitioner admitted the tenancy but denied the allegations of the landlord for his ejectment from the premises. The pleadings of the parties gave rise to a number of issues framed by the Rent Controller. But for the present purpose we are concerned with issue No 2 only which is reproduced below :- "Whether the respondent (now petitioner) has made some unauthorised construction and has violated the terms of tenancy and is liable to be ejected ?"
4. ' After recording the evidence the learned Rent Controller, Lahore accepted the petition of the respondent and ordered the ejectment of the petitioner. The order was set aside on appeal of the petitioner accepted by the Additional District Judge, Lahore on the 7th of March 1978. Dissatisfied, the respondent then went up in second appeal against the order. On the 2nd of June 1979 a learned Judge of the Lahore High Court found against the petitioner on issue No, 2 reproduced above. He was of the opinion that it was established on the record that the petitioner had raised, contrary to the conditions of the tenancy and without the permission of the landlord, a permanent structure which, during the pendency of these proceedings, he had even partly removed. He was consequently liable to ejectment from the premises let out to him under section 13(2) (ii)(b) of the Urban Rent Restriction Ordinance, 1959.
5. ' In the meantime Malik Bahauddin Advocate had unfortunately died and this leave petition was filed by irnpleading his heirs as the respondents.
6. ' We have heard the learned counsel for the parties. In connection with issue No, 2 the learned Judge in Chambers has observed in his impugned judgment that in the appeal before the Additional District Judge it was conceded on behalf of the respondent-landlord that no ejectment could be directed under this issue unless it was proved that the alleged unauthorised construction had materially impaired the value or utility of the demised premises. But in the opinion of the High Court this erroneous concession on behalf of the landlord on a point of law was neither binding on the parties nor upon the Court. The Court observed that before the Additional District Judge the learned counsel was under an erroneous assumption that this objection fell under section 13(2)(iii), of the Ordinance under which a tenant could be ejected if he had committed such acts as are likely to impair the value or utility of the building or rented land. On the contrary, according to the High Court, the objection raised by the landlord forming the basis of Issue No, 2 was clearly covered by the provisions contained in section 13(2) (ii)(b) which lays down that a tenant could be ejected if he, without the written consent of the landlord has infringed any condition of the tenany between the parties. In the opinion of the learned Judge in Chambers the lower appellate Court had failed to bear in mind the distinction between sub-clause (ii)(b) nd sub-clause (iii) of subsection (2) of section 13 of the Ordinance.
7. ' In disposing of issue No, 2 the learned Judge in Chambers observed that the rent note (Exh. A. W.
8. 3/1) executed between the parties is silent and it does not contain any express stipulation about this matter in issue. In spite of this in his opinion the principle contained in clause (p) of section 108 of the Transfer of Property Act could be invoked and applied in the disposal of this case. From the evidence the High Court was satisfied that the petitioner had raised an unauthorised construction of a permanent character at the demised premises and was therefore, liable to ejectment from the premises under section 13(2)(ii)(b) of the Ordinance read with the general principle of law contained in clause (p) of section 108 of the Transfer of Property Act.
9. ' The learned counsel for the petitioner has vehemently argued before us that the respondent did not even specifically plead in his ejectment application that the alleged unauthorised construction raised by the petitioner was of a permanent nature. Nor was any definite issue framed about this precis!, aspect of the case. It was even conceded; before the Additional District Judge on behalf of respondent that Issue No, 2 framed by the Rent Controller was redundant. In these circumstances, according to the learned counsel, the learned Judge in Chambers has erred in holding that this concession thus made was on a pure question of law and could be allowed to be withdrawn.
10. Moreover, in this case the terms of the tenancy agreed upon between the parties had been reduced to writing in the form of the rent note (Exh. P. W. 3/1). It was therefore, argued that this is the only repository of all the terms agreed upon between the parties and that none of the terms which are not there could be imported into it by implication or intendment. In the presence of this agreement fully incorporating all the terms of the tenancy agreed upon between the parties, it was not permissible for the High Court to have made recourse to clause (p) of section 108 of the Transfer of Property Act and the principles contained therein in the disposal of the appeal before it.
11. According to the learned counsel the learned Judge in Chambers has erred in law and on the facts in disposing of the appeal before him under section 13(2) (ii)(b) of the Urban Rent Restriction Ordinance by placing reliance on the extraneous provisions contained in clause (p) of section 108 of the Transfer of Property Act as the general law, in preference to the special law applicable to these tenancies.
12. ' The petitioner has raised these substantial questions of law of considerable general importance before us. We therefore, grant leave to appeal to the petitioner. The appeal to be made, ready on the present record for an early date with liberty to the parties to file any additional documents.
13. ' Security-Rs, 1,000.
14. ' The execution proceedings are stayed subject to the condition that the petitioner shall continue to pay future monthly rent regularly before the 15th of each succeeding month and also clears the arrear of rent, if any, within a period of two months from today. Leave to .