ZAFFAR HUSSAIN MIRZA, J.--On 18th August, 1978, the petitioner filed a suit against respondent No.1 for possession of an area of land measuring 1650 sq. Ft. Forming part of a larger plot of land comprising 3300 sq. Ft., which was leased out to him by means of a registered deed by the Quetta Municipality with effect from 1st February, 1952. The case of the petitioner was that respondent No.1 is his brother-in-law and was in occupation of the disputed portion of the plot as licensee and upon revocation of the licence had refused to vacate the same. Respondent No.1 contested the suit on the plea that he was in possession of the disputed plot in his own right. It appears that after the close of petitioner's evidence and recording of the evidence of respondent No .l partly, the petitioner (plaintiff) moved the trial Court for permission to amend the plaint but his application was rejected. However, the learned Additional District Judge, exercising revisional jurisdiction, passed order dated 7th May, 1983, whereby the petitioner's request for permission to amend the plaint was allowed. In the meantime on 18th August, 1983, respondent No.1 (defendant) moved the trial Court for dismissing the suit as infructuous on the ground that the period of lease granted to the petitioner had expired on 31st January, 1981 and a new lease in respect of the plot in dispute, .Had been granted in his favour by the Municipal Authority with effect from 20th March, 1982. The petitioner strongly opposed this application and questioned the validity of the lease. Once again the petitioner moved the trial Court seeking amendment of the plaint to include the supervening facts which gave him the right to have the new lease granted in favour of the respondent No.1 to be cancelled and also his original lease to be extended also simultaneously prayed for impleadment of the Mayor of Municipal Corporation. The two applications, one by respondent No.1 and the other by the petitioner were decided by a common order of the trial Court dated 21st June, 1986, whereby the respondents' request was refused and the petitioner's plea for amendment of the plaint was allowed. The trial Court held that the suit had not become infructuous because the Court had yet to examine "whether in the light of prior lease in the name of the plaintiff, the Municipal Corporation can transfer the disputed property or not or whether out of the lease agreement dated 29th June, 1952, the plaintiff had acquired any right on which the Court can give him possession of the disputed land". As regards the prayer of the petitioner the learned Court observed that as the subject-matter of the suit is the same and the further facts arise out of the same cause of action, the nature of the suit will not be changed.
2. Being aggrieved by the aforesaid order respondent No.1 went up before the Baluchistan High Court in revision, which was accepted by a learned Single Judge by judgment dated 3rd August, 1986, with the result that the order passed by the trial Court dated 21st June, 1986 (wrongly described as dated 13th May, 1986) was set aside. The consequential orders passed may be reproduced in the words of the judgment as under:- "Consequently application for amendment filed by plaintiff/ respondent is rejected, whereas application filed by defendant; petitioner is granted, as a result whereof the suit is declared to have become infructuous."
Following the aforesaid judgment declaring the suit as having become infructuous, the trial Court dismissed the suit by order dated 12th August, 1986. Being aggrieved the petitioner has brought this petition for leave to appeal from the judgment of the High Court dated 3rd August, 1986.
3. The main grievance of the petitioner is that the High Court was not justified, in exercise of revisional jurisdiction, to declare the suit as having become infructuous. Learned counsel invited our attention to the fact that the lease in favour of the petitioner as per the registered deed dated 29th June, 1952, was of a period of 30 years in the first instance but there was a renewal clause whereby the lease was stipulated to be renewable upto 90 years after the lapse of every 30 years "on such terms and conditions as may mutually be fixed". It was accordingly submitted that by the expiry of initial the lease in favour of the petitioner was not ipso facto determined by lapse of time, particularly when according to the petitioner, he had been approaching the Municipal Corporation for extension of the lease in accordance with the aforesaid terms of the lease. Instead of extending the lease in favour of the petitioner, at the instance of respondent No.1 the Municipal Corporation moved the Government of Baluchistan for grant of lease in his favour as a result accorded its approval purporting to extend favour of respondent No.1. In consequence of the aforesaid an agreement dated Mayor, Municipal Corporation, Quetta, and the first respondent, the recitals whereof clearly show that the lease in favour of the petitioner was renewed by expressly referring to the earlier lease-deed, but strangely the extension for the second period of 30 years was given such a manner that half area of the plot in question "should be leased out to the present occupant of the said part of the plot named A.I Ahmad son of Muhammad Din".
4. It is contended by the learned counsel that in these circumstances the petitioner's right to possession of the suit land by virtue of the original lease-deed continued notwithstanding the expiry of the initial period of 30 years and consequently the suit for possession had not become infructuous. Learned counsel also submitted that in the circumstances of this case the original cause of subsisting and the application for amendment of the plaint of the supervening events was allowed by the trial Court in accordance with the law. Finally the learned counsel urged that with the revocation of the licence the first respondent had become a trespasser and was liable to be evicted from the suit land, irrespective of any right claimed by him on the basis of subsequent agreement with the lessor. Additionally the learned counsel submitted that where the covenant for renewal of the lease is dependent on fresh terms to be agreed between the parties, lessee has a right of first refusal before the lessor can treat the lease as having determined and to demise the property in favour of the third party. In support of these contentions reliance was placed on the following judgments; Cirindra Chandra Das v. Kamini Nath Roy and others AIR 1949 Assam 78, Robinson v. Thames Mead Park Estates, Ltd. (1947) 1 All E.R. 366, King's Motors (Oxford), Ltd. v. Laz and another (1969) 3 All E.R. 665; and Gardner v. Blaxill and another (1960) 2 All E.R. 457.
5.The arguments advanced raise substantial questions of law which require consideration. Leave is accordingly granted. Security Rs.1,000.