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First Rent Appeal No. 30 of 1983, decided on 12th February, 1984.
‑‑Ss. 15 & 21‑Civil Procedure Code (V of 1908), S. 11‑Ejectment application on ground of personal requirement‑Doctrine of res judicata‑Applicability of in rent cases‑Landlord's application for ejectment dismissed‑Landlord subsequently occupying a rented house‑Fresh application for ejectment, held, did not involve res judicata as cause of action became different.‑[Res judicata].
‑‑S. 15‑Ejectment‑Personal bona fide requirement of landlord- Tenant alleging mala fide on ground that landlord desired to enhance rent but placing no material on record to substantiate same‑Mere assertion that landlord desired to enhance rent, held, would not per se, be sufficient to cast doubt about personal bona fide requirement.
1983 C L C 1535 ref.
Azhar Ali Siddiqui for Appellant.
M. Moosa for Respondent.
Date of hearing : 12th February, 1984.
Being aggrieved by the judgment, dated 23rd November, 1982 of the learned Rent Controller, Karachi, the appellant Sultan Safdar Khan has filed this appeal.
2. The facts are briefly that the respondent Syed Muhammad Raza is the owner of the premises i. e. House No. R‑274, Block 8, Scheme No. 16, Azizabad Federal 'B' Area, Karachi. The appellant Sultan Safdar Khan is the tenant paying Rs. 175 as rent. The respondent was gifted the premises in dispute by his uncle Syed Ansar Hussain Zaidi. Both the parents of the respondent are residing in U. K. The respondent served a notice on the appellant intimating the transfer of the premises and required him to vacate the premises as he required the same for his personal use. Thereafter, be filed a Rent Application when he was a minor but that application ended in dismissal. The respondent thereafter took a house on monthly rent of Rs. 250 at Gulshan‑e‑Iqbal and filed a fresh Rent Application on the ground that he is going to be married and requires the premises in good faith for his personal bona fide need.
3. The appellant filed his written statement and contested the case. His first contention was that the application is not maintainable since it was decided earlier and is barred by doctrine of res judicata. The second contention was that the premises are not required for the personal use of the respondent.
4. Following two issues were framed by the Rent Controller :‑
(1) Whether the present application is hit by the provisions of res judicata 7
(2) Whether the applicant requires the premises for his personal bona fide need
The learned Rent Controller answered the first issue in the negative and the second issue in the affirmative. Consequently the impugned order was passed.
5. The instant appeal was argued by Mr. Azhar Ali Siddiqui Advocate on behalf of the appellant and Mr. M. Moosa Soomro Advocate on behalf of the respondent.
6. The arguments of Mr. Azhar Ali Siddiqui were simply on the point that the gift deed was made in favour of the respondent only to create ground for filing the Rent Application. This argument has no force as it is fully dealt in the impugned judgment of the Rent Controller. The gift is not challenged whatsoever. The respondent is living in a rented house in Gulshan‑e‑Iqbal paying Rs. 250 as rent. The respondent's assertion is that he is engaged with the daughter of his father's sister (Phoophi) and he is in need of his own house after marriage and he bona fidely and in good faith needs the same. The lengthy cross‑examina tion is done to the respondent. The sum and total of the evidence of the respondent on record is that the respondent needs the' house for his own occupation and it is needed so badly by him in the event of his marriage. At present he is living in a rented house at Gulshan‑e‑Iqbal. The learned counsel for the appellant has criticised the evidence of the respondent and has urged that the bona fides of the landlord are not spelt out. This is on the face of it an absurd proposition. The marriage and the arrangement of marriage is simply delayed by his not getting the house which is owned by him.
7. Second submission of the learned counsel for the appellant is that earlier case was decided against the respondent as he was minor and was not able to reside separately. The doctrine of res judicata is accordingly involved. In the rent application doctrine of res judicata is not invoked as the cause of action subsequently became different and that the landlord resided in a rented house. This has been dealt quite satisfactorily by the learned Rent Controller.
8. The third submission is that the enhancement of rent was demanded by the landlord which was refused and hence the rent applica tion was moved. In this particular case I find that nothing is brought out to show that the claim of the landlord is false or based on wrong statement. The landlord has totally denied the allegations of mala fide. The assertion that the landlord desired to enhance the rent would not per se be sufficient to cast doubt about personal bona fide requirement. Reference is made to 1983 C L C 1535 in this connection. So far the bona fide of the landlord is concerned it is based on the circumstances and facts of the case. The glaring fact in this case appears to be that the young man‑respondent wants to marry and that he has no other house to. reside after marriage except the dispute one. This is a sufficient ground for his bona fide requirement.
9. In the result I find hardly any ground to sustain this appeal. Accordingly the appeal is dismissed. However, three months time is given to the appellant to vacate the premises in question and hand over its peaceful possession to the respondent.
M. B. A Appeal dismissed.
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