1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the landlord to examine whether a plea raised for the first time in the High Court in second appeal that the land of which the respondent was the tenant was not "rented land" within the meaning and for the purposes of Urban Rent Restriction Ordinance (hereinafter referred to as the Ordinance) and for that reason the petition for eviction of the tenant was not competent before the Rent Controller should have prevailed.
2. The appellant instituted an application on 7-10-1976 seeking the eviction of the respondent, his tenant, from a plot of land situate on the outskirts of Dere Ismail Khan City. It was said that the tenant had executed a rent note on 24-5-1975 and was in default in the payment of rent since 1.3- 1976 to 30-9-1976 at the rate of Rs, 10 per month. The respondent contested the proceedings and took up the plea that the appellant with not the owner of the land, that he had got executed the rent note by misrepresentation and fraud, that the Controller had no jurisdiction as the question of title was involved and that, in fact, Municipal Committee, Dera Ismail Khan, had served on him a notice alleging encroachments on the municipal laud. The following issues were framed on the pleadings of the parties- "(1) Whether the relationship of landlord and tenant exists between the contesting parties ?
(2) Whether this Court as Rent Controller has got the jurisdiction to entertain the present petition?
(3) Relief."
3. The Rent Controller after examining the evidence held that the relationship of landlord and tenant existed between the parties, that the Rent Controller had the jurisdiction and in view of the denial of the relationship of landlord and tenant, there was no question of payment of rent and the respondent had rendered himself liable to eviction. His ejectment was ordered. In the first appeal filed by the tenant- respondent before the District Judge the orders of the Rent Controller were contested on the grounds that the petition had not been properly filed by the landlord as he had not signed it, that the power-of-attorney executed in favour of his brother who had got executed the tenancy agreement was also not proper and as it was a title dispute the jurisdiction of the Rent Controller was barred. The learned District Judge dismissed the first appeal upholding . The jurisdiction of the Controller, the execution of the rent note and the existence of the relationship of landlord and tenant.
4. ' The respondent-tenant thereafter preferred the second appeal and in addition to the grounds already urged he took up a ground which was in the following terms- "That in this particular case, the determination of title of ownership athe respondent was involved.
5. In addition neither. The suit property was a building nor a land appurtenant to the building as defined in section 2-A of the Rent Restriction Ordinance, 1959 and as such the Rent Controller as well as, the Appellate Court has no jurisdiction to hear, entertain the petition and in consequence thereof pass the order of ejectment of the appellant."
6. ' At the hearing of the second appeal in the High Court the learned counsel representing the tenant contended for the first time that the plot of land given on rent did not qualify as "rented land" under the Ordinance and, therefore, the Rent Controller had no jurisdiction to entertain and dispose of the ejectment application in respect thereof. The learned Judge in the High Court while entertaining this ground and disposing it of observed as follows :- "The ground of objection to jurisdiction, however, has been changed now but this does not involve purely a question of fact. I am, therefore, inclined to hold that the appellant is entitled to agitate the question of jurisdiction based on a point not urged before the lower Courts."
7. ' Thereafter the learned Judge proceeded to examine the definition of rented land, applied it to the particulars given in the rent note and held that the plot of land rented out to the respondent- tenant did not qualify as rented land as it was not shown to have been let out principally for commercial purposes and allowed the appeal and set aside the eviction order.
8. ' As noted in the leave granting order, the question agitated in this appeal is whether the High Court could justifiably take note of an entirely new ground which bad an element of a factual controversy and render a decision solely on its basis without allowing the parties an adequate opportunity to contest the issue by leading evidence and getting a finding recorded at the appropriate stage and level. It has been contended that even it was considered necessary to go into this question as it related to the jurisdiction of the Rent Controller the proper course for the High Court or for that matter for any appellate Court would have been either to record evidence itself or to permit the evidence to be recorded and then proceed to record finding on it. According to the learned counsel for the petitioner serious prejudice has been caused to the case of the appellant because if this ground bad been taken in the reply to the ejectment application a direct question to the tenant while in the witness-box may have evoked a factual answer favourable to the landlord rendering such an exercise futile.
9. It is clear to us from the pleadings of the parties. The evidence led before the Rent Controller the grounds of appeal taken before the District Judge and the High Court that an altogether new ground relatable to the jurisdiction of the Controller was raised before the High Court for the first time. The High Court had itself observed that the ground raised "does not involve purely a question of fact" implying it had an element of law also or was a mixed question of fact and law. The only way to resolve such a controversy a is to allow an opportunity to the parties to raise it at an appropriate stage, to controvert it and to support their contentions by evidence. That procedure having not been adopted, the result is likely to be vitiated as it is based on material or evidence which had incidentally come on record without contest and such evidence may not be sufficient to decide the question or to do justice to the parties in the case.
10. We find that the only legal course open to get such a controversy resolved was to have remanded the proceedings to the Rent Controller or to have itself examined the evidence after inviting it on the new ground relating to jurisdiction raised by the tenant at the stage of second. Appeal. We would, therefore, accept this appeal set aside the judgment under appeal and remand the proceedings to the Rent Controller and direct him to frame an issue on the basis of the ground on which the High Court has given a decision in favour of the tenant to invite evidence on it and decide it without being influenced by the finding recorded by the High Court in the absence of proper contest and evidence on this issue. The parties are left to bear their own costs and are directed to appear before the Rent Controller. As the matter has been pending since long the Rent Controller shall take all necessary steps to ensure expeditious disposal of the proceedings before him.