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Writ Petition No. 313 of 1984, decided on 1st April, 1984.

---Art.9--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.14--Res judicata-- Landlord filing second ejectment petition in quick succession of previous one --Ground taken in second petition not available at time of filing earlier petition--Second petition, held, not barred under S.14 of West Pakistan Urban Rent Restrict o Ordinance, 1959.--[Res judicata].

Ashfaq-ur-Rehman v. Chaudhry Muhammad Afzal P L D 1968 SC 230; Abdul Aziz v. Ali Mohammad P L D 1979 Note 135 and Dost Muhammad etc. v. Muhammad Shabbir Hussain etc. 1981 S C M R 528 rel.

---Art. 9--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13--Landlord filing second ejectment petition on fresh ground without disclosing fact of dismissal of his previous petition--Non-disclosing of fact, held, not necessarily led to inference that intention to ask for tenant ejectment was male fide.

Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981. S C 246 ref.

Sh. Naveed Sheharyar for Petitioner.

Syed Najarn-ul-Hassan Kazmi for Respondents.

Date of hearing: 27th March, 1984.

This Writ Petition impugns an order dated 8-1-1984 of Khan Arshad Khan Additional District Judge, Gujrat, whereby he dismissed an appeal of the petitioner-tenant arising from an order of ejectment passed against him by the Rent Controller.

2. The respondent-landlord sought the petitioner's ejectment from the disputed shop on the ground that he needed it for himself as also his son Abdul Haque who had been recently evicted by his own landlord from a shop situate in Bazar Sarafan. He explained that he had no other shop either in his possession or lying vacant to accommodate himself and his son and that thus they required the shop in dispute for their own business.

3. It was contested to be barred under section 14 of the Rent Restriction Ordinance, 1959, on the grounds that in an earlier petition dismissed in appeal on 4-4-1981 by the learned Additional District Judge, no mention was made either of the respondent's own personal need or that of his son and that it was mala fide inasmuch as he had a shop already in his possession whereas his son too was running his business in Bazar Sarafan in a shop purchased by him in the names of his sons who were either minors or working elsewhere.

4. The Courts below concurrelty held against the petitioner and hence this constitutional petition.

5. It is true that the present petition was brought in quick succession of the previous one but the question of fact that the respondent's son Abdul Haque was ejected after the decision of the previous petition, was not successfully disproved. It would not have been earlier taken up as it was not then available. Reliance was placed on Ashfaq-ur-Rehman v. Chaudhry Muhammad Afzal P L D 1968 S C 230 to contend that the doctrine of constructive res judicata applied to bar the present petition. A perusal thereof would reveal that it was considered in the context of dismissal of a civil suit for recovery of rent which was again being claimed in the rent case. Obviously the facts in hand are not assimilable to those of the precedent case. There is no decision by a Civil Court to be set up as res judicata. Besides, the petition was based on a fresh ground, which as already remarked was not available earlier. Above all, it was held in Abdul Aziz v. Ali Muhammad P L D 1979 Note; 135 that constructive res judicata was not available in rent cases. Further, it was laid down in Dost Muhammad etc. v. Muhammad Shabbir Hussain etc. 1981 S C M R 528 that in changed circumstances, a second petition for ejectment was competent and that it did not fall within the mischief of section 14 ibid. The res judicata is, therefore, available here neither on facts nor in law.

6. Stressing that the petition was mala fide, counsel argued at length that the respondent should have made a mention of dismissal of his previous petition in the present one. According to him, the omission amounted to suppressing a material fact raising an inference that he was not coming with clean hands.

7. The Courts below did not accept the contention, and I too agree with them. The grievance this time was the need of the respondent's son and he quite unmistakably mentioned it in the petition. All else was in a way immaterial, if not irrelevant and was better left out. It did not necessarily lead to an inference that the intention to ask for the petitioner's ejectment was mala fide. The lower Courts did not fail in adverting themselves to this aspect. In fact, an appraisal of evidence on these questions of fact was not permissible in writ jurisdiction. Muhammad Sharif and another v. Muhammad Afzal Sohail etc. P L D 1981 S C 246 is a clear authority on the point. The finality of the order of ejectment cannot be jeopardised by asking for re-appraisal evidence.

8. As a result, I see no merit in the writ petition and dismiss it, leaving the parties to bear their own costs.

M . A . K . Petition dismissed.

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