Briefly the facts of the case are that the appellant by means of a petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 had sought the eviction of the respondents Nos. 1 and 2 from House No. 503-A, Jamke Road, Kot Daska. The petition was based on the ground that despite notice under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act., 1958 the respondents had failed to pay the rent for the period from 19th November, 1965 to 19th November, 1968. The grounds of damage and nuisance were also taken by the appellant. The said respondents resisted the petition and controver--ted the allegations. On the pleadings of the parties the following pre--liminary issues were framed by the learned Rent Controller :-
(1) Whether there exists relationship of landlord and tenant between the parties ? O. P. A.
(2) Whether the- petitioner served the respondent with a notice dated 21st November, 1968 ? O. P. A.
(3) In case of proof of issue No. 2, whether the notice so served was illegal ? O. P. R.
(4) Whether this Court has no jurisdiction to try this application ? O. P. R.
(4-A) Whether the present application is not maintainable because of the pendency of revision petition against the transfer order, in the Court of Chief Settlement Commissioner ? O. P. R. (3).
The learned Rent Controller vide his order dated 13th July, 1972 held that the appellant was the transferee of the property in question and had served the respondents with a statutory notice. As a result of his finding he accepted the ejectment petition and passed the order of eviction against the respondents who successfully challenged the same by way of an appeal before the learned Additional District Judge who by means of his order dated 26th January, 1974 concurred with the findings recorded by the trial Court under issues Nos. 2 and 3 but, after considering certain deposits made by the respondents, was of the opinion that the learned Rent Controller should have exercised the discretion in favour of the respondents. He consequently accepted the appeal and remanded the case to the learned Rent Controller with a direction that after framing issues on merits he may decide the case afresh according to law. The appellant-- landlord has come to this Court in second appeal.
2. Learned counsel for the appellant has strenuously argued that the respondents had denied the existence of relationship of landlord and tenant between the parties and in these circumstances if the Courts below bad reached the conclusion that such a relationship did exist the con--sequence to pass straightway ejectment order against the respondents cannot be denied. He further argued that the, respondents had not plead--ed in their statements that the latest assessment of the property was Rs.32 per annum and, therefore, such a plea could not have been considered while holding that the respondents were entitled to some concession. .Learned counsel for the respondents on the other hand has supported the order passed by the learned Additional District Judge.
3. With the assistance of the learned counsel for the parties, I have perused the record and find great force in the contention of the learned counsel for the appellant that the respondents in their written statements had not pleaded that the latest assessment of the property in question was Rs.32 per annum. It is well settled that a party cannot be permitted to raise an altogether new ground of attack or defence, by departing from its A previous pleadings, especially when the opposite party had no opportunity to adduce evidence in this behalf of to otherwise have an opportunity of meeting the plea during the course of the trial. With some advantage, the case of Mst. Murad Begum etc. v. Muhammad Rafiq, etc. (PLD 1976 SC 322) may be cited. Besides this it is well established that the denial of relationship of landlord and tenant entails necessarily the eviction order in case the Court g ultimately reaches the conclusion that the plea raised by the tenant was false and vexatious. In the instant case, the respondents had denied the existence of relationship of landlord and tenant which had given rise to the recording of issue No. 1. Learned counsel for the respondents has not been able to cite any authority holding a contrary view. With some advantage, the case of Abdul Khaliq Qureshi v. Saeed Hassan Shah and 5 others (1979 CLC Lah. 118), may be referred to. Respectfully following the radio decidendi of the present case, I accept the appeal, set aside the order passed by the learned Additional District Judge and restore the order dated 13th July, 1972 passed by the learned Rent Controller. In these circumstances, I leave the parties to bear their own costs.
The respondents are, however, allowed two months' time to vacate the premises in question.