' This second appeal under section 100 of the Code of Civil Procedure is directed against judgment and decree, dated 14-2-1976 passed by the learned District Judge, Lyallpur (now Faisalabad).
2. The facts, briefly stated, are that land measuring 3.20 Acres was obtained on lease for one year by the appellant-plaintiff from respondent/defendant No,1 on 13-10-1973. It has been asserted in the plaint that possession of the leased parcel of the land was not delivered to the appellant on 13- 10-1973 and actually delivery of possession was made on 1-8-1974. The further assertion in the plaint is that before the expiry of the period of lease, which calculated from the date of delivery of possession would be 31-7-1975, the respondent made an advertisement on 8-2-1975 for grant of lease by auction; whereupon the appellant-plaintiff was obliged to file a suit for declaration that he was entitled to retain possession of the disputed land as a lessee till the expiry of the period of lease, i.e, 31-7-1975.. He also prayed for an injunction restraining the respondents-defendants from taking possession of land till the expiry of the above period or till the harvest had been reaped by the plaintiff. This suit was resisted by the respondents-defendants.
3. On the divergent pleadings of the parties four issues, including that of relief, were framed.
4. The appellant-plaintiff, however, did not produce his evidence despite having been afforded opportunities, whereupon the learned Civil Judge, Lyallpur (now Faisalabad) by his order, dated the 20th of November, 1975, closed his evidence under Order XVII, rule 3 of the Code of Civil Procedure and also found that the relief claimed in the plaint being only to the extent that the plaintiff be not dispossessed till 31-7-1975, which date had already expired, the suit had become infructuous. The suit of the appellant was accordingly dismissed for non-production of evidence and also as having become infructuous.
5. The appellant-plaintiff feeling dissatisfied with the above mentioned order of the learned trial Court, dated 20-11-1975 preferred an appeal before the learned District Judge, Layllpur (now Faisalabad). The learned District Judge by his judgment, dated 14-2-1976 upheld the order of the learned trial Court and dismissed the appeal with costs.
6. The appellant-plaintiff being still aggrieved has come up in the present second appeal to this Court.
7. The learned counsel for the appellant only contended that the appellant was not liable to be ejected from the parcel of land in dispute as he is a tenant as provided for by para. 25 of Martial Law Regulation No, 115 and thus liable to be evicted only on the grounds given in the said para. He in this regard placed reliance on Muhammad Yousaf v. Province of Punjab through Collector, Lyallpur, reported as PLD 1976 Lah. 328 and Khadim Hussain v. Assistant Collector Jhang and another reported as PLD 1977 Lah.
194.
8. On the other hand the learned counsel for the respondents submitted that the contention raised by the learned counsel for the appellant cannot be considered at this stage as this was never the case of the appellant in the plaint nor was this plea ever raised before any of the Courts below.
' The learned counsel for the respondent, elaborating his' contention, also submitted that a new plea without seeking amendment in the plaint cannot be allowed to be raised. Reliance in support of above contention was placed on Mst. Murad Begum etc. v. Muhammad Rafiq etc., reported as PLD 1974 SC 322 and Mst. Sharfo and 2 others v. Ghulam Abbas and 2 others, reported as PLD 1970 Lah.
730.
' Lastly the learned counsel for the respondents submitted that the appellant-plaintiff's claim in the plaint itself being for declaration that he cannot be dispossessed till August, 1975, he is now precluded from setting up a new case altogether.
9. Having considered the submissions made by the learned counsel for the parties I am of the view that the contention raised by the learned counsel for the appellant has no force. It has been correctly pointed out by the learned counsel for the respondents that a new plea cannot be allowed to be raised at this stage especially when even in the second appeal no application has been made for seeking amendment in the plaint to incorporate the claim now being set up.
10. The learned counsel for the appellant has conceded before me that the contention now raised by him has neither been set up in the plaint nor was taken up in the grounds of appeal before the first appellate Court. It has also been conceded by the learned counsel for the appellant that the claim of the appellant in the plaint out of which this second appeal has arisen was restricted to a declaration that he be not evicted from the land in dispute till the expiry of the lease, the period of which has already expired in August, 1975. He also admitted that the lease deed, under which the appellant claims now to be a tenant, is also not on record of the Courts below.
11. It is thus obvious from the above discussion that the appellant cannot be allowed to raise the plea now being canvassed for the-first time in this second appeal by departing from the case as set up in the plaint especially when the respondents had no opportunity to meet the plea during the course of trial.
12. The contention of the learned counsel for the appellant, therefore, cannot be given any effect.
13. As regards the impugned judgments of the Courts below the learned counsel for the appellant despite having been afforded an opportunity to show if those suffer from any infirmity has not been able to find fault with the impugned judgment in any manner whatsoever.
14. In view of the foregoing discussion I find no merit in this appeal, which is accordingly dismissed with costs.