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Before Zia Mahmood Mirza, J
Ch. SAMI ULLAH-Petitioner
versus
MUHAMMAD ASHIQ ABDALI AND OTHERS-Respondents
Writ Petition No. 3114 of 1984, decided on 3rd June, 1985.
-- Ss. 13 & 14-Landlord and tenant-Ejectment sought on ground of personal need of landlord and his son-Landlord's another application for eviction of same tenant on ground of personal need filed earlier had already been dismissed-Issue of personal need by landlord in earlier petition having not been decided on merit-Observation by Rent Controller in earlier suit that petitioner had failed to make out case for personal need, held, was inconsequential-Finding of Rent Controller, that landlord filed amended petition without any permission-Earlier order of Rent Controller, held further, could not operate as res judicata qua need of landlord as set up in fresh ejectment petition--Appellate Court's view based on evidence that landlord needed premises for personal need was thus unexceptionable.
Government of Pakistan v. Syed Akhlaque Hussain P L D 1965 S C 527 ; Jai Prakash and others v. Dishambhar Das and others A I R 1954 All. 215 ; Patna Zilla Truck Owners Association and others v. State of Bihar and others and The Province of Bombay v. The Principal, Corporation of Ahmedabad A I R 1959 Bom. 1 ; Sh. Maula Bakhsh and another v. Fazal Din and another P L D 1982 S C 201 ; Muhammad Muzaffar Ali v. Muhammad Abdus Salam 1982 C L C 2134 ; Abdul Ghani v. Zahida Begum P L D 1982 Lah. 401 and Faqir Muhammad and others v. Muhammad Ismail and others P L D 1983 SC 451 ref.
-- S. 13-Permission to file fresh ejectment petition sought by and granted to landlord on payment of costs-Landlord filed fresh ejectment petition which was eventually dismissed-Landlord instituted fresh petition independently-Maintainability of fresh petition, held, would not be affected by non-payment of costs which were to have been paid in earlier dismissed petition.
-- S. 13 (8)-Appellate Court not passing final order regarding adjustment of rent paid by tenant--Omission to pass order in terms of S. 13 (8), held, would not, adversely affect validity of eviction order.
Sh. Zia Ullah for Petitioner.
Abdul Hayee Mansoor Ahmad for Respondent No. 1.
Dates of hearing : 3rd, 10th, 11th February ; 10th, 11th, 13th, 16th, 17th March ; 7th and 10th April, 1985.
This petition under Article 9 of the Provisional Constitution Order has been filed by the tenant to call in question orders of the Rent Controller, dated 19-2-1984 and of the learned Additional District Judge, dated 21-4-1984 directing ejectment of the petitioner from the shop in dispute.
2. Facts necessary for the disposal of this petition, briefly stated, are that shop bearing No. S-52-R-7, Nisbet Road, Lahore hereinafter called the shop in dispute was taken on rent by the petitioner from Muhammad Ayub Khan, brother of respondent. No. 1 in August, 1965 on a monthly rent of Rs. 300. Petitioner is also said to have paid Rs. 10,000 to Muhammad Ayub Khan as advance rent through a cross cheque. Petitioner entered into possession of the shop in dispute in October, 1966.
Dispute between the parties arose in respect of certain repairs with the result that the petitioner filed an application under section 12 of the Rent Restriction Ordinance in the year 1967 for a direction to the landlord to carry out the repairs. Petitioner's case is that this matter was compromised and the petitioner himself carried out the repairs by spending Rs. 15,000, which amount was to be adjusted towards the rent at the rate of Rs. 100 per mensem.
While the aforesaid petition under section 12 was pending Muhammad Ayub Khan, the then landlord filed an ejectment petition against the petitioner in November, 1967. This petition was dismissed for non prosecution on 21-5-1968. Muhammad Ayub Khan moved an application for restoration. During the pendency of this application, he sought permission to He a fresh petition which permission was granted to him on payment of Rs. 50 as costs.
3. Muhammad Ayub Khan then brought a fresh petition in 1968 seeking petitioner's ejectment on the grounds of default, damage to the shop in dispute and his own personal need as also that of his adopted son Aleem Khan who was also his nephew. Muhammad Ayub Knan died during the pendency of this ejectment petition which was thereafter pursued by respondent No. 1 who being a brother and the only legal representative of the deceased landlord was impleaded as petitioner. Respondent No. 1 then filed an amended petition in which he took tip the ground of his own personal need and of his son Aleem Khan. Respondent No. 1 also filed an independent ejectment petition against the petitioner on the ground of damage to and alteration of the shop in dispute. Both the ejectment petitions, one filed by Muhammad Ayub Khan deceased and the other by respondent No. 1. were dismissed by Mr. Mumtaz Hussain Malik, Rent Controller by two separate orders, dated 14-4-1981. Respondent No. 1 filed an appeal against only one order of the learned Rent Controller which, too he withdrew realizing, according to the learned counsel for the petitioner, that he had filed appeal in one case but appended certified copy of the order passed in the other case.
4. In July, 1981, respondent No. 1 instituted another ejectment petition seeking eviction of the petitioner mainly on the ground that he and his son Alim Khan required the shop in dispute for their personal use. Need set up was that they wanted to start a business of Chemist/ Druggist in the shop in dispute. It was also alleged that the petitioner was an undesirable tenant for the reasons mentioned in the ejectment petition.
5. Petitioner resisted the ejectment petition by submitting a reply thereto wherein he controverted the allegations of the respondent No. 1 and further pleaded that the petition was barred by section 14 of the Rent Restriction Ordinance. Pleadings of the parties gave rise to the following issues :
(1) Whether the petitioner requires the shop in dispute in good faith for his own use and for the use of his son O. P. P.
(2) Whether the respondent is an undesirable tenant and its effect O. P. P.
(3) Whether the petition is barred under section 14 of the Urban Rent Restriction Ordinance, 1959 O. P. R.
(4) Whether the petition is not maintainable O. P. R.
(5) Whether the petition is mala fide O. P. R.
(6) Whether the petition is not competent O. P. R.
(7) Relief.
6. In order to establish his case respondent No. 1 examined his son Alim Khan as P. W. 1, produced two more witnesses and himself appeared as P. W. 4. Petitioner, on the other hand, produced Qamar Din R. W. 1, Muhammad Idrees R. W. 2 and himself appeared as R. W. 3. He also produced copy of the judgment (Exh. R. 1), dated 14-4-1981 passed by Mr. Mumtaz Hussain Malik, Rent Controller.
7. Learned Rent Controller after considering the evidence on the record found issue No. 1 relating to the bona fide personal need in favour of respondent No. 1. Issue No. 2 was held to have been abandoned by respondent No. 1. Issues Nos. 3, 4, 5 and 6 were taken up together and decided against the petitioner. It was held by the Rent Controller that the judgment (Exh. R. 1) did not bar the present ejectment petition for the reason that the question of personal need of respondent No. 1 and his son Aleem Khan was not decided on merits. On the issue of personal need, Rent Controller found as follows :
"From the evidence on record it is established that the petitioner is a retired Govt. Servant and his son Aleem Khan is carrying on a business of cloth like hawkers and they are in actual need of the shop in dispute. The petitioner owns no other shop except the shop in dispute while the respondent has got an other shop in the same vicinity."
With the aforementioned findings, learned Rent Controller accepted the ejectment petition by his order, dated 19-2-1984 and directed the petitioner to hand over vacant possession of the shop in dispute to respondent No. 1 within one month.
8. Petitioner challenged the order of the Rent Controller in an appeal which was dismissed by the learned Addl. District Judge by judgment, dated 21-4-1984 upholding the findings of Rent Controller on all issues.
9. I have heard the learned counsel for the parties at considerable length and have also perused the record with their assistance.
10. Learned counsel for the petitioner raised the following points to assail the validity of the impugned judgment :
(i) that in view of the order of Mr. Mumtaz Hussain Malik, Rent Controller, dated 14-4-1981 (Exh. R. 1), dismissing the earlier ejectment petition brought on the ground, inter alia, of personal need, present ejectment petition was not maintainable by virtue of the bar contained in section 14 of the Rent Restriction Ordinance and on the general principles of res judicata ;
(ii) that Muhammad Ayub Khan, predecessor-in interest of respondent No. 1 was allowed to file a fresh petition on payment of Rs. 50 as costs which have not been paid so far. Consequently present ejectment petition was not maintainable ;
(iii) that the need set up by respondent No. 1 was not bona fide and in any case it has not been established on evidence of the record ; and
(iv) that Rent Controller was under obligation to pass final order regarding payment of rent in terms of subsection (8) of section 13 of the Rent Restriction Ordinance which he failed to pass. Noncompliance with the mandatory provisions of section 13 (8) renders the impugned judgments without lawful authority.
11. In support of his first contention, learned counsel for the petitioner relied upon Government of Pakistan v. Syed Akhlayue Hussain (P L D 1965 S C 527), Jai Prakash and others v. Dishambhar Das and others (A I R 1954 All. 215), Patna Zilla Truck 0wrters Association and others v. State of Bihar and others( ) and The Province of Bombay v. The Principal Corporation of Ahmedabad (A I R 1954 Born. 1) In the first two cases, it was held that it is the decision of the matter in the previous suit which operates as res judicata' and not the reasoning or the basis of the decision. In the Patna case, it was held that "in order to apply the principles of res judicata it is essential requirement that the actual issue in the two suits must be identical. In the case reported froth Bombay, view taken was that "in order to decide whether the decision in the earlier suit operates as res judicata', we must look at the nature of that suit, what were the issues raised in that suit and what was actually decided in that suit".
There can be no cavil with the proposition enunciated in the aforereferred judgments. Question, however, is as to whether the issue of personal need as set up by respondent No. 1 in the present ejectment petition stood finally decided in the judgment (Exh. R. 1) copy of which is Annexure E' with the writ petition. Judgment Exh. R. 1 which forms the basis of the petitioner's contention was rendered in the ejectment petition filed by Muhammad Ayub Khan, the original landlord wherein he set up his personal need as also the need of his nephew Aleem Khan. In that case, issue No. 3 which is relevant for the present purpose was framed as follows :
" Whether the petitioner requires the shop in dispute for his personal use in good faith."
Mr. Mumtaz Hussain Malik, Rent Controller decided the aforementioned issue in the following terms :
"Muhammad Ayub Khan deceased in his application had alleged that the shop in dispute was required in good faith for him and for his nephew whom he had adopted as a son and he was issueless. Muhammad Ayub Khan died during the pendency of the case. After the death of Muhammad Ayub Khan, the present petitioner Muhammad Ashiq filed an amended petition; wherein he has made additions in the ejectment application without the permission of this Court. Muhammad Ashiq has stated in the amended petition that the shop in dispute is required for his own personal use and that of his son. This plea has been introduced by Muhammad Ashiq in his amended petition without the permission of this Court. As to the original plea of personal need of his adopted son, set up by Muhammad Ayub Khan, deceased suffice it to say that it became infructuous after the death of Muhammad Ayub Khan. The petitioner has even failed to make out a case for his own personal need. The issue fails and is decided against the petitioner".
12. The aforequoted decision of issue No. 3 clearly shows that the issue regarding the need of Aleem Khan was not decided on merits. Personal need of Muhammad Ashiq Khan, respondent No. 1 was also not gone into by the Rent Controller as it was found that he had set up his need in the amended petition which was filed without the permission of the Court. Learned counsel for the petitioner, however, submitted that issue regarding personal need of respondent No. 1 was decided against him and he referred in this connection to the aforequoted observation of the Rent Controller that the petitioner has failed to make out a case for his own personal need. This observation, to my mind, is inconsequential in view of the finding of the Rent Controller that respondent No. 1 filed the amended petition without any permission. Be that as it may, the fact, remains that the plea of personal need of Aleem Khan, as held above, was' not adjudicated on merits in the order Exh. R. 1 with the result that the order in question cannot operate as res judicata qua is need as set up in the present ejectment petition.
Contention of the learned counsel may be examined from yet another angle. It has been held by the learned Addl. District Judge that fresh cause of action had accrued to Aleem Khan. He based this finding on the evidence that Aleem Khan had been earning his livelihood by driving an Ambulance car. He had met with an accident whereafter he was unable to drive and that he was doing a business of cloth in a rented 'Khokha'. This finding of the learned Addl. District Judge is based on evidence and is, therefore, unexceptionable. Fresh cause of action having accrued at least in the case of Aleem Khan, present ejectment petition would not be hit by the Bar of general res judicata or that contained in section 14 of the Rent Restriction Ordinance. Reference in this behalf may be made to Sh. Maula Bakhsh and another v. Fazal Din and another (P L D 1982 S C 201) wherein it was held that where a new cause of action arose "the bar of general res judicata or for that matter, one in the provisions contained in section 14 of the Ordinance, was not attracted." Thus, viewed from whatever angle, present ejectment petition was clearly maintainable at least so far as personal need of Aleem Khan was concerned. Contention of the learned counsel for the petitioner in this behalf is, therefore, repelled.
13. As regards the second submission of the learned counsel for the petitioner based on non-payment of costs, it may be observed that permission to file a fresh ejectment petition was sought by and granted to' Muhammad Ayub Khan, the original landlord. It was, therefore, hiss liability to pay the costs. He had in fact brought a fresh ejectment petition. Petitioner could or should have agitated this question in that' ejectment petition which in any case was eventually dismissed. Respondent No. 1 thereafter instituted the present ejectment petition independently,' Its maintainability would not therefore, in any manner be affected by nonpayment of the costs in question.
14. As regards the third contention of the learned counsel for the petitioner that bona fide need of respondent No. 1 has not been established on evidence, it may be pointed out that it has been concurrently found by the two learned Courts that respondent No. 1 and his son Aleem Khan need the shop in dispute for their personal use in good faith. This finding is supported by the evidence on record which has been duly appraised by the two Courts. It is in evidence that Aleem Khan used toy earn his living by driving an Ambulance car but he met an accident whereafter he is doing a business of cloth in a rented Khokha'. Thus, even if the personal need of respondent No. 1 is excluded, need of hiss son Aleem Khan which was duly set up in the petition for ejectment stands established on record. Need of Aleem Khan, on the facts and circumstances brought on the record was clearly bona fide. In Muhammad Muzaffar Ali v. Muhammad Abdus Salam (1982 C L C 2134) landlord's son was carrying on business of glasses and opticals repairs on footpath and it was held that "the requirement cannot be said to be otherwise than bona fide".
Even otherwise, issue of the requirement of the premises in dispute for personal use is one of fact which stands concluded by concurrent findings recorded by the learned Rent Controller and the learned Add]. District Judge after due consideration of the material on the record. That being so, the finding is not open to question in constitutional jurisdiction of this Court. If any authority is needed for this proposition, reference may be made to Abdul Ghani v. Zahida Begum (P L D 1982 Lah. 401). However, even if the finding of the learned Courts on the issue of bona fide need be erroneous as was sought to be canvassed by the learned counsel for the petitioner, that would not render the impugned judgment without lawful authority. It was held in Faqir Muhammad and others v. Muhammad Ismail and others (P L D 1983 S C 451) "the question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction".
14. Last point urged by the learned counsel for the petitioner with reference to the provisions of subsection (8) of section 13 of the Rent Restriction Ordinance has also no substance. Learned counsel could not cite any authority in support of his contention that the impugned order of ejectment would be rendered illegal by not passing a final order regarding adjustment of rent paid by the petitioner. To my mind, omission to pass an order in terms of subsection (8) of section 513 does not adversely affect, the validity of the impugned order.
As shown above, none of the contentions raised by the learned counsel for the petitioner has any merit. This petition, therefore, fails and the same is hereby dismissed but there shall be no order as to costs in the facts and circumstances of the case.
A. A. Petition dismissed.
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