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On appeal from the judgment and order of the Lahore High Court, Lahore, dated 30-1-1985 in Writ Petition No. 1703 of 1983.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

-- Ss. 13 & 14-Ejectment sought on grounds of default in payment of rent, subletting premises without permission of landlord and premises bona fide needed for personal use of landlord-Landlord's another application for eviction of same tenant on ground of personal need filed in 1973 already dismissed - Whether said subsequent application filed after almost eight years barred in view of provisions of S. 14.

Through section 14 of West Pakistan Urban Rent Restriction Ordinance, 1959 the principle similar to that of res judicata is sought to be applied to proceedings before the Rent Controller, but principle of res judicata would not apply where the cause of action on which the second suit (or application) is based, has arisen after the disposal of previous proceedings. For example where an ejectment application filed b a landlord on the ground of default in payment of rent by the tenant failed once, he is not debarred by section 14, from filing another ejectment application on the same ground i. e. default, if after the dismissal of the first ejectment application, the tenant again commits default in payment of rent. The same principle could apply in other cases where fresh cause of action accrues to the landlord after his first application has failed. Where the first application on the ground of personal requirement has failed but there has been such change in the circumstances which calls for the matter being decided anew, section 14 would be no bar to a second application on the fresh cause of action. This stands to reason because with the passage of time the requirement of a landlord may change substantially and a person who is found at one time to be in possession of a premises having sufficient accommodation for himself or is found to be in occupation of other suitable premises at one time, may after some reasonable period of time be found to be in bona fide need of more or better accommodation either because the size of his family has increased or his need has increased or he is no longer in occupation of another suitable premises. In such a case all that is to be seen by the Rent Controller is whether the circumstances have not substantially changed after the dismissal of the previous application and whether in the existing circumstances the requirement of the landlord is bona fide. In case the finding is in the positive the earlier application will not constitute a bar to the second (or even a third) ejectment application.

Plea of subletting had not been taken by the landlord in the earlier ejectment petition. Obviously therefore, this was a fresh ground which has been accepted by the Rent Controller and upheld by the Additional District Judge. Therefore, the order of eviction on that ground would be effective notwithstanding the dismissal of landlord's earlier application which was based only on the ground of personal need.

Dost Muhammad and another v. Muhammad Shabbir Hussain and another 1981 S C M R 528 and Haji Malal Khan v. Mir Hassan 1980 C L C 1422 ref.

Muhammad Hussain AH,an, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing : 18th February, 1985.

ASLAM RIAZ HUSSAIN, J.-Bashiruddin and Nasiruddin, petitioners seek leave to appeal against the judgment of the Lahore High Court, Lahore, dated 30-1-1985, dismissing their writ petition (No. 1763/1983), in a rent matter.

2. The facts giving rise to the petition are, briefly, that the petitioners are tenants in a shop owned by Siraj Din, respondent No. 3. In May, 1980, the latter moved an application for their eviction from the shop before the Rent Controller, Sargodha, on the grounds of (i) default in payment of rent; (ii) subletting the shop without permission of the landlord; and (ii,) that the shop in question was bona fide required by the landlord for his personal use.

The application was resisted by the petitioners. After considering evidence of the parties the learned Rent Controller rejected the plea of default, but upheld the pleas of personal requirement and subletting of the shop without the permission of the landlord. He, therefore, directed their eviction from the shop in question.

The petitioners filed an appeal which was dismissed by the Additional District Judge, Sargodba, vide judgment dated 6-4-1983. They then filed a Constitutional Petition before the High Court which met the same fate.

Hence the present petition.

3. It was vehemently argued by the learned counsel for the petitioners that even earlier, in 1973, the respondent-landlord had sought eviction of the petitioners from the shop in question on the ground of personal need, but that application had been dismissed and, that, as such the subsequent application filed in may, 1980 (out of which the present petition has arisen was barred in view of the provisions of section 14 of the Punjab Urban Rent Restriction Ordinance, 1959, which reads as follows

"14. Decisions which have become final not to be reopened.-The Controller shall summarily reject any application under subsection (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance."

We are, however, unable to agree with this submission. Through this section, principle similar to that of res judicata is sougnt to be applied to proceedings before the Rent Controller, but it is well-established that principle of res judicata would not apply where the cause of action on which the second suit (or application) is based, has arisen after the disposal of previous proceedings. For example where an ejectment application filed by a landlord on the ground of default in payment of rent by the tenant has failed once, he is not debarred by section 14, from filing another ejectment application on the same ground i. e. default, if after the dismissal of the first ejectment application, the tenant again commits default in payment of rent. The same principle could apply in other cases where fresh cause of action accrues to the landlord after his first application has failed. It has been held in Dost Muhammad and anther v. Muhammad Shabbir Hussain and another (1981 S C M R 528) that where the first application on the ground of personal requirement has failed but there has been such change in' the circumstances which calls for the matter being decided anew, section 14 would be no bar to a second application on the fresh cause of action. This stands to reason because with the passage of time the requirement of a landlord may change substantially and a person who is found at one time to be in possession of a premises having sufficient accommodation for himself or is found to be in occupation of other suitable premises at one time, may after some reasonable period of time be found to be to bona fide need of more or better accommodation either because the size of his family has increased or his need has increased or he is no longer in occupation of another suitable premises. In such a case all that is to be seen by the Rent Controller is whether the circumstances have not substantially changed after the dismissal of the previous application and whether in the existing circumstances the requirement of the landlord is bona fide. In case the finding is in the positive the earlier application will not constitute a bar to the second (or even a third) ejectment application. The same view was taken by the Peshawar High Court in Haji Malal Khan v. Mir Hassan (1980 C L C 1422).

4. It may also be mentioned that the plea of subletting had not been, taken by the respondent landlord in the earlier ejectment petition filed in. 1973. Obviously therefore this was a fresh ground which has been accepted

by the learned Rent Controller and upheld by the learned Additional District Judge. Therefore, the order of petitioner's eviction on that ground would be effective notwithstanding the dismissal of landlord's earlier application which was based only on the ground of personal need.

5. For the foregoing reasons we find no force in this petition which is consequently dismissed.

M. B. A. Petition dismissed

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