ZIA ANWAR AND OTHERS vs GHULAM MUHAMMAD AND OTHERS
The petitioners sought the ejectment of their tenant, respondent No. 1, on the ground of unauthorized subletting of a shop to respondents Nos. 2 and 3. The Rent Controller ordered eviction, finding that subletting had occurred. This order was upheld by the Additional District Judge on appeal. However, the High Court, in a second appeal, reversed these findings. While acknowledging the subletting, the High Court held that the petitioners had waived their right to seek ejectment by accepting rent from the sub-tenants for years, thereby creating an estoppel. The petitioners challenged this decision before the Supreme Court, arguing that the High Court erred by introducing a plea of waiver and estoppel that was never raised in the pleadings, nor framed as an issue, and regarding which no evidence was led. The Supreme Court granted leave to appeal, observing that the contentions regarding the High Court's justification in making out a new case for the respondents and the alleged oversight of material evidence required further consideration.
- Can a High Court decide a case based on a plea of waiver or estoppel that was neither pleaded nor framed as an issue by the parties?
- Is a landlord estopped from seeking ejectment on the ground of subletting if they have accepted rent from the sub-tenants for a significant period?
ORDER
' NASIM HASAN SHAH, J.-The petitioners had let out their shop on rent to respondent No,
1. According to them, they said respondent further sublet the shop in favour of respondents Nos. 2 and 3. The petitioners, therefore, moved the Rent Controller for ejectment of the respondent on the ground that he had sublet the premises to respondents Nos. 2 and 3 and, thus, made himself liable to ejectment.
2. The following issues were framed by the Rent Controller :-
(1) Whether respondent No, 1 has subletted the disputed shop to respondents Nos. 2 and 3 ?
(2) Relief.
3. The' Rent Controller held that respondent had, indeed, subletted the shop in dispute to the other respondents and as such the respondents were liable to eviction. He, therefore, directed them to hand over the possession of the shop 'to the petitioners. The appeal failed by the respondents before the Additional District Judge failed but, on second appeal, a learned Judge of the High Court held that although the respondent No, 1 had, indeed, subletted the shop to respondents Nos. 2 and 3 and they had constituted a firm, but the evidence showed that the petitioners were receiving the rent for years from the respondents, who were doing business there and their conduct showed that they had waived their right to eject them on account of subletting. Hence they were estopped to invoke their right of seeking ejectment on the ground of subletting which they had abandoned by their conduct by accepting the firm as their tenant. The appeal was, therefore, allowed and the orders of the two Courts below ordering their ejectment were set aside. Hence this petition for leave to appeal.
4. Rana Abdur Rahim, learned counsel for the petitioners has contended that the ground on which the High Court had decided the matter was neither pleaded by the respondents nor any issue was framed to the sale affect and that the High Court was not justified in making out a new case for the respondents, which was neither pleaded by them nor on which there was any issue and accordingly, no evidence had been led directly on this aspect of the matter. He further contended that some material evidence was also overlooked in this connection.
' These contentions require further consideration. Leave is, accordingly granted.
' Security Rs, 2,500.
5. The appeal to be made ready on the present record with liberty to the parties to add further documents and put up for hearing at an early date.