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Second Appeal No.36 of 1980, decided on 30th October, 1983.

‑‑‑S.13(2)(i)‑‑Eviction of tenant‑‑Default in payment of rent‑‑Lease agreement expired‑‑Terms of same, held, could not be resorted to for purpose of statutory relationship‑‑Rent could have been paid or deposited on expiry of lease agreement within 60 days of time when rent had become due.

P L 0 1980 S C 298 fol.

‑‑‑Ss. 13 b 15‑‑Ejectment of tenant‑‑Issue decided against a party can be urged in appeal filed by other‑‑Application for ejectment filed on grounds of default and personal need‑‑Rent Controller deciding issue of default against and issue of personal need in favour of landlord‑‑Held: Landlord could urge point of default in appeal filed by tenant without filing cross‑objections‑‑Civil Procedure Code (V of 1908), O.XLI. Rr. 22),‑[Appeal (civil)].

1981 C L C 327 fol.

‑‑‑S.14‑‑Res judicata‑‑Compromise after filing ejectment application‑ Private settlement between parties, held, not a case decided .by Rent Controller to attract bar of res judicata under S. 14. [Res judicata]

1978 S C M R 437 fol.

1981 C L C 1636 ref.

‑‑‑Ss.13 & 15‑‑Remand of case‑‑Question of personal need of landlord not receiving consideration at hands of Additional District Judge‑‑Case remanded for decision on point of personal need‑‑[Remand of case ].

Abdul Mateen for Appellant.

S.A. Jamali for Respondent. Dates of hearing: 23rd and 30th October, 1983.

This second appeal by Wali Muhammad, tenant of a shop belonging to Abdul Karim, landlord is directed against the order of 1st Additional District Judge, Hyderabad dated 13.12.1979. The respondent had filed application for ejectment of the appellant on the basis of default of two months rent as well as for the personal need of the respondent which was based on the personal need of his son Abdul Ghani. The Rent Controller had framed two issues and after recording the evidence of the parties had negatived the issue of default and had also come to the finding that the landlord/respondent did not need the premises as it had not been established.

In appeal before the Additional District Judge the respondent herein urged that the default had been established and that he was in need of the premises for his son who wanted to carry on a chappal manufacturing business. The Additional District Judge reversed the finding of the Rent Controller on the issue of default and came to the conclusion that default in the payment of two months rent had been established, and it was held that in view of the previous agreement between the parties the rent was payable by the 14th of every month and since the same had not been paid by that date, therefore, the appellant had defaulted in the payment of rent. In respect of the need of the respondent it was held that the matter had been adjudicated earlier between the parties and, therefore, it was res judicata.

Mr.Abdul Mateen, counsel for the appellant urged that the finding in respect of default was completely unjustified. He relied upon P L D 1980 S C 298 where it was held that if an agreement of lease between the parties had expired then the terms of the same cannot be resorted to for the purpose 'of statutory relationship which exists between the parties after the expiry of the lease agreement. The agreement in the present case had expired on 14.5.1973 and the default was from 15.7.1973 to 15.10.1973 and, therefore, the agreement in question could not be used against the appellant in view of P L 0 1980 S C 298 and, therefore, the rent could have been paid or deposited within sixty days of the time when the rent had become due. It is admitted position that rent had been remitted on 5.11.1973. The appellant had sent a notice on 5.11.1973 to the respondent demanding rent receipts but the same had been refused by the landlord. It had been urged by the appellant that he had paid rent upto September, 1973 to the respondent but he had not issued any receipt. The appellant had also remitted Rs.50 as rent for October, 1973 on 5.11.1973 :here the appellant had mentioned that Rs.20 had already been paid to the respondent. The appellant had also remitted Rs.120 on 17.11.1973 as rent for October and November, 1973. In view of all these documents on record it was not possible to hold that the appellant had committed default in the payment of rent and, therefore, the finding of default in the payment of rent by the lower Appellate Court was not justified and in fact the finding of the Rent Controller in this respect was quite correct.

Mr. Jamali, the learned counsel for the respondent thereafter urged that he could support the decree of eviction on the point of personal need of the respondent in spite of the fact that he had not filed cross objections to the appeal. Mr. Mateen had contended that the respondent could not do so. However, Mr. Jamali relied upon 1981 C L C 327 where a Single Judge of this High Court had in a detailed judgment come to the conclusion that in a case where the landlord had urged a point of default as well as personal requirement against the tenant and only the issue of personal need had been decided in his favour and the issue of default had been decided against him he could urge the point of default in the appeal preferred by the tenant in spite of the fact that he had not filed cross‑objections. With respect I agree with that view. Mr. Mateen, the learned counsel for the appellant has not been able to urge anything against the said view. Consequently I allow Mr. Jamali to urge his points in respect of personal need.

Mr. Jamali submitted that the learned Additional District Judge had come to a wrong conclusion that there was a res judicata between the parties in respect of personal need. Mr. Mateen pointed out that the respondent Abdul Karim‑had admitted in his cross‑examination that he had filed an application on the same grounds against the appellant but the same had been compromised. This compromise was treated by the learned Additional District Judge as a case having been decided against the respondent and he, therefore, treated the same as bar for an application on the same grounds which was not allowed under section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Mr. Jamali submitted that in 1978 S C M R 437 (438) their Lordships of the Supreme Court while interpreting section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959 have held that a private settlement between the parties is not a case decided by the Rent Controller and, therefore, in case of private settlement between the parties the bar of section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959 is not attracted. He also relied upon 1981 C L C 1636 where it was held that a subsequent application on the same ground was not barred because the requirement for personal need may not have arisen formerly but may arise subsequently. With respect following the dictum of their Lordships of the Supreme Court in 1978 S C M R 437 I am left with no opt4on but come to the conclusion that the bar of res judicata under section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959 had been wrongly used against the respondent and, therefore, the respondent could support the decree of eviction on that ground.

But the difficulty in the case is that the question of personal need of the respondent has not received consideration at the hands of the Additional District Judge and, therefore, the case has to be remanded back to the District Judge for decision on the point of personal need of the respondent. The appeal is, therefore, disposed of in the manner that finding of default in payment of rent is set aside, and the 1st appeal is remanded to District Judge, Hyderabad on remand for decision on the point of personal need. The District Judge Hyderabad may assign the 1st appeal to any Additional District Judge for disposal.

M. B. A. Case remanded