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Civil Petition for Special Leave to Appeal No., K‑208 of 1979, decided on 30th January, 1980.

(On appeal from the judgment and order of the High Court of Sind, dated 30‑7‑1979, in 2nd Appeal No. 288 of 1979).

‑‑ S. 13(2) and Civil Procedure Code t1' of 1906), S. 11‑Res judi cata‑Contention that rent being claimed for same period as in earlier application and earlier application having been dismissed second appli cation stood barred by res judicata‑Held, clam: for three years rent prior to filing of second application being established ejectment could be sustained‑Rule of res judicata besides could not be invoked for subsequent defaults.

Sadik Ali Khoja, Advocate and Ahmadullah Faruqui, Advocate‑on‑Record for Petitioners.

Naseeruddin, Advocate and V. A. Kidwal, Advocate‑on‑Record for Res pondents.

Date of hearing : 30th January, 1980.

he petitioner seek special leave to appeal against the judgment of the High Court of Sind ,Karachi, dated 30th of July, 1979, by which Second Appeal No. 288 of 1979 was dismissed.

The petitioners are the tenants of the respondents in respect of two shops at a monthly rental of Rs. 25 but as they failed to pay the rent to the respondents for the period from 1st of August, 1966 onwards the respondents sued for their ejectment but the application. was dismissed by the Rent Control ler and this conclusion was upheld in first appeal. No further appeal was taken to the High Court. Thereafter, the petitioners failed to pay the rent and the respondents by notice dated 7th of January, 1976, informed the petitioners to vacate the shops as they had not only defaulted in the payment of rent but also that those shops were required for their personal use. The petitioners failed to vacate the shops and, therefore, the respondents filed the second application for their ejectment for the reasons given in the notice.

The petitioners resisted the application on the ground that the respondents had avoided to accept the rent and as for the period prior to the date of the filing of the application they had been depositing the rent in Courts in which the earlier proceedings relating to the ejectment were pending. It was further averred that they had remitted the rent for the period from January, 1970 to March, 1970 by money order dated 7th of April, 1970, but it was not accepted by the respondents and further two other remittances were made but those were also not accepted the respondents. The Rent Controller framed the following two issues

"(1) Whether the opponents defaulted in paying rent with effect from 1‑8‑1966 till to date to the applicants

(2) Whether the applicants need the above shops for their personal use in good faith "

On examining the evidence the Rent Controller decided Issue No. 1 in the affirmative No. 2 in the negative by order dated 27th of February, 1979.

In first appeal the conclusion of the Rent Controller on the first issue was upheld as the First Appellate Court held that the petitioner had failed to estab lish that they had deposited the rent in Court during the continuance of the earlier proceedings or that they had filed an application before the Rent Controller for permission to deposit the rent with him. The First Appellate Court further held that there was also no proof to establish that the rent for the period from January, 1970 to March, 1970, was remitted by money order and the receipt (Exh. 62) on which reliance was placed only evidenced the payment of rent in Court for October to December, 1969. Lastly, the fire Appellate Court held that the only documentary proof about the remittance; of rent was for the period from 1st of January, 1970 to 31st of December, 1975, after having defaulted for about 6 years and for that too there was no material to establish that in fact the remittance had reached the res pondents.

In second appeal the High Court held that there was no evidence to establish that the rent from 1st of January, 1970 and onwards was tendered to the respondents and hence it upheld the conclusion of the first Appellate Court.

In seeking leave to appeal the learned counsel for the petitioners con tended that as the rent was claimed for the period from Ist of August, 1966, which was also the subject‑matter in the earlier ejectment proceedings the second application was barred by res judicata. This contention is miscon ceived as the default in the payment of rent for three years prior to the filing of the second application was established ; and on this' short ground alone their ejectment could be sustained. Besides, the rule of res judicata could not be invoked for subsequent defaults. The petitioners are guilty of contumacious default as would appear from the facts of this case and, accordingly, no exception can be taken to orders of the Courts below.

The petition fails and is hereby dismissed. However, we could allow four months' time to the petitioner to vacate the shops subject to the payment of rent.

Petition dismissed.

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