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Civil Petition for Special Leave to Appeal No. 104 of 1979, decided on 4th April, 1979.

(On appeal from the judgment and order dated 9-1-1979 of the Lahore High Court, Lahore, in S. A. O. No. 547 of 1977).

S. 14-Eviction of tenant-Second application--Maintainabilit --Landlord praying for ejectment of tenant on ground of default' in payment of rent and shop in dispute being required for running a printing press but in second application filed after rejection of his first application besides reiterating first ground landlord further pointing out that his brother banned his entry therein on account of some family dispute-Circumstances having radically changed after dismissal of first application question of maintainability of second application, held, fell to be examined in context of changed circumstances and case did not fall within mischief of S. 14.-[Res judicata].

A. R. Shaukat, Senior Advocate Supreme Court with M. Asian: Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing : 4th April, 1.979.

This petition for leave to appeal is directed against the order dated 9-1-1979 passed by a learned Judge of the Lahore High Court dismissing the second appeal preferred by the petitioners S. A Q No. 547 of 1977) against the order of ejectment passed against them by a learned Additional District Judge.

The facts on which form the background are that the respondents had earlier filed an application (on 5-4-1973) for the ejectment of the petitions from a shop situate in Campbellpur on the ground of default from August, 1972 and bona fide personal need of respondent No. 1 and his sons. This applica tion was rejected by the Rent Controller on 10-9-1975 and this order was maintained on 4-3-1976 by the Additional District Judge on appeal.

Sometimes later on 5-1-1.977, a second application for ejectment was filed by the respondents on the ground of personal need and default in the pay ment of rent for the month of May 1976. These grounds were controverted and in addition a further objection was taken that the application was not competent under section 14 of the Rent Restriction Ordinance as a previous petition of the respondents had been rejected on the same grounds. The Rent Controller, by his order dated 28-2-1977, dismissed the application, However, on the appeal of the respondents, the Additional District Judge upheld the plea of the respondents that they needed the shop bona fide for their personal need. He also held that section 14 was not a bar to the maintainability of the second petition. The petitioner thereupon assailed the order of the Additional District Judge by filing a second appeal before the Lahore High Court, but this proved unsuccessful and was dismissed on 9-1-1979. Hence this petition for leave to appeal.

In support of this petition for leave to appeal, Mr. A. R, Shaukat submits that the second ejectment application filed by the respondents raised sub stantially the same issue, namely, that of personal need as had already been decided upon in the former proceedings against the respondents. Hence the learned High Court as well as the Additional District Judge were not justified in allowing the second ejectment application filed by the respondents on the same grounds.

Section 14 of the Rent Restriction Ordinance lays down that-

"The Controller shall summarily reject any application under subsec tion (2) or subsection (3) of section 13 which raises substantially the same issues as have been finally decided in any former proceedings under this Ordinance."

The question, for consideration, therefore, is whether the second ejectment application filed by the respondents raised substantially the same issues as had been finally decided in the first proceedings under the Ordinance. Both the learned Additional District Judge and the High Court found that as a change had occurred in the circumstances, the second ejectment applica tion was competent. The change was that while in the first ejectment application, the position taken up was that respondent No. 1 wanted the purpose printing press of account of some family dispute held that respondent No. 1 was in doing business in that the shop was required by him in good faith but thereafter the circum-I stances had changed inasmuch as that respondent No. 1 ceased to has connection with his brother who was running the business. On appeal, the High Court observed that after the dismissal of the first ejectment petition their circumstances radically changed and the question of maintainability o the second petition fell to be examined in the context of the changed circumst ances in the changed set of circumstances, it was held that the case of the respondents did not fall within the mischief of section 14 of the Ordinance.

Mr. A. R. Shaukat, learned counsel for the petitioner, could not dispute the proposition that in case a change of circumstances indeed takes place, a second petition would not be barred under the provisions of section 14 therefore attempted to persuade us to accept his plea that in fact no change had occurred in the circumstances and that the Additional District Judge and the High Court had not correctly appreciated the situation. We are not persuaded to agree. The learned Additional District Judge had, after examining the relevant facts, recorded a finding that there was a change in the circumstances and, therefore, the second petition was competent. The High Court upheld this finding and we do not consider that in these pro ceedings such a finding of fact, which is based upon the appreciation of evidence, can be interfered with.

The result is that the petition fails and is hereby dismissed. The peti tioners are however, allowed two months time to vacate the premises provided they continue to pay the monthly rent before the 15th day of each succeeding month.

Petition dismissed.

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