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First Rent Appeal No.96 of 1983, decided on 10th December, 1986.

---Ss.15(2)(vii) & 21(1)--Ejectment--Personal bona fide need--Proof- Original owner and landlord of shop having died--One of adult male heirs of deceased landlord successfully established that although other heirs of deceased were engaged in their occupation independently, yet he had no source of earning his livelihood, and would strive for himself and also to contribute for well being of family of deceased by expanding family business in the premises--Genuine need of family which had lost head of family, to expand resources for sustenance having been established, Rent Controller, held, rightly concluded that heirs of deceased landlord had made out case of their bona fide need of shop for themselves.

---Ss.15(2)(vii) & 21(1)--Civil Procedure Code (V of 1908), S.11- Ejectment--Personal bona fide need--Principle of res judicata- Application of--Earlier case filed by original landlord in respect of shop in dispute on ground of his own personal requirement was dismissed and appeal preferred by original landlord against such dismissal also abated due to his death during pendency of that appeal- -Circumstances changed after death of original landlord- Decision in such earlier rent case, held, would not operate as res judicata against ejectment case subsequently filed by heirs of deceased-landlord on same ground of their personal bona fide need especially when their need in respect of shop in dispute proved to be genuine--Finding of Rent Controller that case filed by heirs of deceased was not hit by principle of res judicata would not call for any interference and was justified in circumstances.

P L D 1969 S C 171; P L D 1969 S C 230; P L D 1975 Lah. 1921 and P L D 1959 Dacca 316 ref.

Iftikhar Ahmed Choudhry for Appellant.

Abdul Aziz for Respondents.

The Appellant Jeevanjee S/O Akber Ali is a tenant in a shop No.G/2, N.P.9/2, K-358, Allhadad Street, Juna Market, Karachi, for the past so many years. The shop originally belonged to Hakim Fakhruddin, the father of the respondents herein. The respondents filed Rent Case No.2373 of 1979 in the Court of Rent Controller, Karachi for ejectment of the appellant on the ground that the shop was needed by the respondent No.1 (Sharifuddin) for his personal bona fide use. The appellant resisted the ejectment case, inter alia, on the ground of its non maintainability for want of notice under Section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958; and bar under the doctrine of res judicata consequent to the decision in the previous ejectment case filed by the original landlord. He also denied that the shop was bona fidely needed for the use of the respondent No.1. The learned Controller/ Senior Civil Judge VIII, Karachi, by order dated 21-12-1982, repelled the contentions of the appellant, upheld the ground of personal need advanced by the respondents and directed the appellant/ tenant to hand over vacant possession of the shop to the respondents within two months. The appellant has preferred this appeal against the order of ejectment.

The learned counsel for the appellant has not agitated at the hearing, the question of service of notice under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. However, he has contended that the ejectment case, this appeal has arisen from, was barred under the principle of res judicata as the Rent Case No.1272/68 filed by the respondent's father on same ground was dismissed by order dated 9-3-1987, and appeal filed against it, being appeal No.150 of 1973, had abated on account of death of the appellant, vide order dated 23-8-1978. He has next contended that the respondents have failed to. prove bona fide need to get the shop vacated.

The learned counsel for the respondents has urged that earlier decision in Rent Case No.1272 of 1968 did not constitute bar of res judicata. He has next urged that the respondents have proved by evidence that the respondent No.1 bona fidely needs the shop for his own use.

Personal need, the only ground advanced for seeking ejectment, is disclosed in paragraph 2 of the ejectment application and paragraphs 3 of each of the affidavits of respondents Sharifuddin and Riazuddin filed in evidence. They read as under:

Paragraph 2 of the Rent Application:

"That the shop premises are needed by the applicant for Sharifuddin, the applicant No.1 for personal bona fide need."

Paragraph 3 of affidavit of respondent Sharifuddin;

"That after the death of my father he left behind one widow, five sons and five daughters, out of five brothers three are adult including myself and two minors. The eldest brother Zamiruddin who is married, is occupying one shop adjacent to the shop occupied by the opponent. One katcha constructed shop in Idgah Maidan is occupied by my younger brother Riazuddin whereas I have no other shop to run my business and maintain my younger brothers and sisters and as such need the shop occupied by the opponent for running my own business."

Paragraph 3 of affidavit of respondent Riazuddin:

"That after the death of my father he left behind one widow, five sons, and five daughters, out of five brothers three are adult including myself and two are minors. I am of younger brother and occupying one katcha constructed shop in Idgah Maidan whereas Sharifuddin has no other shop to run his business and maintain his younger brothers and sisters and as such he needs the shop occupied by the opponent for running his own business."

The respondent's case is that their family consists of five brothers, three of them adults & two minors, five sisters and mother. The rented shop is said to be needed by one of the adult brothers, namely Sharifuddin. The other two adult brothers are admittedly doing business in other shops, one at Juna Market and another at Mouloo Musafirkhana. It is natural that after death of the head of the family each member of the family has to look forward for future prospects and obligations. In the instant case, two adult brothers already engaged in their occupation in two shops separately, the third adult brother would naturally strive for source of livelihood for himself and also contribute for the well being of the family. However, other aspect of the case also has to be taken into consideration. The appellant has contended that the respondent has been working at the shop which was being run by the respondent Riszuddin. The respondents Sharifuddin and. Riazuddin have denied such suggestion put to them. Even if that suggestion were true, there could be genuine need of the family, having lost head of the family, to expand the resources for sustenance. The learned Controller has rightly held that the respondents had made out case of their bona-fidely needing the rented shop for themselves.

The other ground urged on behalf of the appellant is that the father of, the respondents also had filed ejectment case No.1272 of 1968 on the ground of personal need but he could not maintain it and the respondents filed the instant ejectment case soon after abatement of appeal filed by their father against the dismissal of ejectment case filed by him and it is obvious that the second ejectment case was filed in order to evict the appellant as he had not responded to the demand for enhanced rent. The earlier ejectment case No.1272/68 was filed by the father of the respondent on the ground of default in payment of rent and personal need. The personal need advanced in that case was mentioned in paragraph 2 of the ejectment application which read "that the premises are needed by the applicant for his own use and for the use of his children." That case was decided on 9-3-1973. The issue on the ground of personal need was decided against the landlord on the ground that he did not need the rented shop for doing business there himself. The landlord preferred appeal against that decision but he died during the pendency of the appeal and the appeal abated in the year 1978. The ejectment case, this appeal has arisen from, was filed in the year 1979. By that time the circumstances had changed as the respondents' father who had filed the earlier ejectment case had died, and the respondents No.1, 2, 3 had attained the age of bread earners and the decision in the earlier case therefore did not operate as res judicata against the filing of a ejectment case on the fresh ground having arisen for need of the respondents for doing business there by one of them as discussed above. In the circumstances, the cases cited as P L D 1969 S C 171; P L D 1969 S C 230; P L D 1975 Lah. 1921 and P L D 1959 Dacca 316 are not attracted. The finding of the learned Controller on this issue that the rent case filed by the respondent is not hit by the principle of res judicata does not call for interference.

For the reasons recorded above, the appeal does not succeed and is dismissed. No order is made for costs. The appellant is allowed three months' time to vacate the shop and deliver its possession to the respondents.

H. B. T./J-16/K Appeal dismissed.

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