' This is an appeal challenging the order passed by the learned Controller whereby application for ejectment under section 13 of the Urban Rent Restriction Ordinance, 1959 was granted. The appellant is a tenant in respect of ground floor flat for the last 40 years. It is alleged that the appellant has demolished the boundary wall and by putting shutters has constructed three shops.
The respondent served a notice dated 30th September, 1979 on the appellant notifying the unlawful and unauthorised construction made by him and called upon him to desist from subletting and remove the illegal construction failing which Civil and Criminal proceeding shall be instituted. On 20th December, 1979 ejectment application was filed on the ground that the appellant has raised unauthorised construction without the permission of the respondent thereby materially impairing the value and utility of the building and further that the appellant by such unauthorised act has contravened the terms and conditions of the tenancy. The appellant filed written statement denying the allegation and pleaded that he was seeking permission from the respondent to repair the boundary wall but he wanted him to surrender the open space and on his refusal action has been taken. He pleaded that he had repaired the boundary wall and denied that shutters were fixed or terms of tenancy have been violated. The learned Controller framed the following two issues :- "(1) Whether the opponent has carried out the addition and alteration having materially impaired the value and utility of the premises in dispute ?
(2) What should the order be 7'
2. It is significant that no issue has been suggested by the respondent whether the appellant has violated the terms of tenancy and is liable to be ejected. The parties went on limited issues framed by the learned Controller. The main ground for ejectment is, as stated by the learned Controller, that the appellant had demolished the boundary wall and fixed shutter without oral or written consent of the respondent. From the evidence it seems that the boundary wall had been removed by the appellant and in its place shutters were fixed. The respondent had produced photograph to show that shops had been constructed on the boundary wall. In fact the respondent himself admitted that after notice was served the appellant has removed the shutters. The question for consideration is whether the construction made by the appellant which has been removed, had materially impaired the value and utility of the building. The unauthorised construction made by appellant was outside the flat. He had fixed shutters in the boundary wall and cement sheets were put on it. As this construction was not within the flat, it did not either damage the constructed area nor affected its accommodation.
3. Mr. Kazi the learned counsel for the respondent contended that to make three shops three walls were raised projecting into the flat portion of which was included in the newly-carved out shops, therefore, the utility and value of the building has been impaired. From the evidence those facts have not been established. The respondent has not stated that the walls were raised projecting inside the flat. On the basis of the evidence on record it was established that the boundary wall was removed and shutters were fixed and to cover the open space some corrugated sheets were placed. These constructions are not of permanent nature nor they will change the nature of the building. At best it can be said that in the open space the appellant has made a temporary construction and fixed shutters by breaking the boundary wall. The appellant had covered the open space by the temporary construction. This can hardly affect the flat in dispute.
4. Mr. Kazi contended that the appellant has violated the terms of tenancy and is liable to be ejected. He has referred to 1979 CLC 774. In this case on the top floor structural changes were made and, therefore it was held that it was in violation of the terms of tenancy. It is significant that in this case a specific issue was framed whereas in the present case no such issue was framed. It is pertinent to note that the respondent had served a notice on the appellant notifying that by constructing shops he has violated the terms of tenancy and called upon him as follows :- "This is, therefore, to warn you to desist from your malicious activities and get the wall reconstructed failing which my client shall be constrained to launch legal proceedings against you both civil and criminal entirely" at your risk as the costs and consequences which please note."
By this notice while making certain allegations against the appellants he was required toreconstruct the boundary wall in its original position and in case it was not done the respondent would take legal action against the appellant. The demand made by the respondent in his notice was complied. The respondent had admitted that the shutters have been removed therefor the grievance of the respondent stands removed. Thereafter, there was no a cause left with the appellant. In the present case, as stated earlier, the issue whether the appellant bad violated the terms of tenancy was not framed and, therefore, it cannot be expected that a party should be put to trial on a charge which is not at issue. The Controller did not frame such an issue but the appellant also did not insist on it nor asked the Controller to frame such an issue.
' For these reasons the appeal is allowed with no order as to cost.