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‑‑‑S. 21(1)‑‑Ejectment application‑‑Appeal‑‑Plea not taken earlier‑ Effect‑‑Tenant had not pleaded in written statement to ejectment application that personal requirement of landlady was not covered by Ordinance 1d76 because respondent was not landlady, but was only attorney of owner of property‑‑In absence of express plea in written statement, tenant/appellant, held, could not be allowed to raise such plea at appellate stage and it would not be just and proper to non‑suit respondent/landlady at that stage.

‑‑‑Ss. 21(1) & 22‑‑Dismissal of previous ejectment application‑‑Second ejectment application on same ground‑‑Res judicata‑‑Execution of orders‑‑Previously filed ejectment application by landlady on ground of personal need was dismissed up to High Court‑‑Landlady filed second ejectment application on same ground of personal need alleging that she required premises for use of her husband as ejectment case had been filed against her husband by landlord in whose premises he was living as tenant‑‑Judgment on previous ejectment application,‑ held, would have constituted res judicata against landlady if her husband's landlord would not have filed ejectment case against him after that judgment Contention of tenant/appellant was repelled in circumstances.

Fazale Ghani Khan for Appellant. Khalilur Rehman for Respondent. Date of hearing: 20th May, 1984.

This is an appeal against the order, dated 4‑6‑1983 passed by the learned VIth Senior Civil Judge and Controller, Karachi, in Rent Case No. 5585 of 1981, for ejectment of the appellant on the ground of personal requirement of the respondent. The brief facts leading to the filing of the above are that the respondent filed Rent Application No. 3424/75 on 30‑9‑1975 on two grounds namely, default and personal requirement. The above proceedings were culminated in the passing of a judgment, dated 9‑7‑1981 by this Court in Second Appeal No. 335/78, whereby the judgments of the two Courts below rejecting the respondent's application were maintained and so also the finding that the rent of the premises was Rs.150 per month and not Rs.a10 as was claimed by the respondent. After the dismissal of the above second appeal by this Court, the respondent filed fresh Rent Case No. 5585/81 on 23rd December, 1981. The application was resisted by the appellant. The learned Rent Controller on the basis of the pleadings of the parties framed the following 3 issues:‑

(1) Whether the applicant is the landlady of the premises in dispute

(2) Whether the applicant requires the premises in dispute for her bona fide personal requirement

(3) What should the order be

The respondent examined herself in support of the application, whereas the appellant examined herself. The parties have also produced certain documents including Form PT‑1, Exh. 9 indicating that one Muhammad Hussain was the owner of the property. The learned Rent Controller after hearing the parties by his above order, dated 4‑6‑1983 allowed the rent application. The appellant being aggrieved by the above order has filed present appeal.

2. (a) In support of the above appeal Mr. Fazal‑e‑Ghani Khan, learned counsel for the appellant has urged as follows:‑

(i) That as the Rent Application No. 3424/75 was filed by the respondent as the attorney of Muhammad Hussain she cannot press into service her personal requirement;

(ii) That even otherwise the aforesaid judgment of the High Court, dated 9‑7‑1981' in the second appeal constituted res judicata against the respondent, and, therefore, he was not entitled to press into service the personal requirement after the expiry of few months from the judgment.

(b) On the other hand Mr. Khalilur Rehman, learned counsel for the respondent has contended as follows:‑

(i) That factually the above rent case was filed by the respondent as the landlord and not as an attorney.

(ii) That since no such plea was raised by the appellant in the written statement to the present rent application the appellant cannot be allowed to raise the same.

(iii) That there fresh cause of action accrued to the respondent for filing of the above ejectment case on the ground of personal requirement inasmuch as a notice, dated 9‑11‑1981 was served by the respondent's husband, landlady on him and factually, in pursuance thereof ejectment proceedings have been filed.

3. In furtherance of his above first contention of Mr. Fazal‑e‑Ghani has referred to para. 1 of the above judgment, dated 9‑7‑1981 of the High Court passed in Second Appeal No. 335/78, in which in line 2 of the first para. it has been stated that the respondent is the attorney of one Muhammad Hussain.

4. On the other hand Mr. Khalilur Rehman has referred to the order of the learned Rent Controller passed in aforesaid Rent Case No.3424 of 1975, in which while narrating the facts of the application, it has been stated that respondent landlady filed the aforesaid rent case.

5. In my view, in the absence of an express plea in the written statement it will not be just and proper to non‑suit the respondent at the appellate stage. The appellant in her written statement has not stated that the respondent was not the landlady and that she was only the attorney of the owner, and, therefore, her personal requirement is not covered by the Rent Restriction Ordinance.

6. Adverting to the merits of the case, it may be observed that the learned counsel for the appellant appearing before the Rent Controller had suggested to the respondent that she had managed the above notice from her landlord within 4 months from the date of the above High Court judgment passed in the aforesaid second appeal. It was also suggested that the Rent Case was dismissed in default. However, the appellant in her cross‑examination admitted the fact that the rent application has been restored. The above judgment of the High Court would have constituted res judicata against the respondent if her husband's landlord would not have filed Rent Case No. 1002/82 against her husband after the above High Court judgment, dated 9‑7‑1981. I am inclined to agree with Mr. Khalilur Rehman, learned counsel for the respondent that a fresh cause of action accrued to the respondent upon fling of the aforesaid rent case for ejectment against her husband. However, at the same time I am of the view that the respondent is not entitled to execute the ejectment till the time an ejectment order was passed by the Rent Controller against her husband since the fresh cause of action accrued to her upon filing of the above case against her husband, otherwise the ground of personal requirement stands B concluded against the respondent by the aforesaid High Court judgment, dated 9‑7‑1981 as the present application was filed hardly after the expiry of a few months from the above High Court judgment. I would, therefore, modify the above order of learned Rent Controller to the extent that ejectment order would be executed against the appellant after the expiry of 4 months from the date of passing of an ejectment order by the Rent Controller in Rent Case No. 1002/82 filed against the respondent's husband. However, the appellant shall continue to pay rent to the respondent at Rs.150 per month.

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