This is a second appeal against an order for the ejectment of the appellant, Sh. Muhammad Hussain, from a house belonging to the respondent, Muhammad Latif.
2. The impugned order was made on an application, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the said Ordinance) filed by the respondent. One of the grounds pressed by the respondent for seeking eviction of the appellant was that he needed the house for his own occupation. This was refuted by the appellant who also contended that the application was not maintainable because an earlier application made by the respondent for his ejectment had been dismissed. The learned Rent Controller, who heard the application, overruled the objection raised by the appellant relating to the maintainability of the application and ordered his ejectment on the ground of personal need of the respondent. The appellant went in appeal to an Additional District Judge, but without success. Hence, this second appeal.
3. Learned counsel for the appellant contended that the two tribunals below had erred in holding that the application out of which this appeal has arisen was maintainable. Relying on the provision of section 14 of the said Ordinance, he urged that as the earlier application by the respondent seeking ejectment of the appellant had been dismissed he could not thereafter make the application in which the impugned order was passed.
4. From the record before me it can be gathered that. The earlier application of she respondent seeking ejectment of the appellant on various grounds, including that of personal need, was dismissed by a Rent Controller on 8th October, 1976 (Annexure `A'). The respondent, therefore, went in appeal before an Additional District Judge. Before his appeal could be heard on merits, the respondent prayed for withdrawal of the appeal with permission to file a fresh application for ejectment. His ,prayer was not objected to by the learned counsel for the appellant, who was respondent in the aforesaid appeal. The learned Additional District Judge, therefore, by his order, dated the 22nd December, 1976, allowed the respondent to file a fresh application on payment of Rs. 50 as costs, and dismissed his appeal (Annexure 'B'). The respondent did pay the costs imposed on him (Annexure `C') and then filed fresh application which has given rise to the present appeal.
5. Although the provisions of the Code of Civil Procedure (hereinafter referred to as the Code) except those referred to in section 16 of the said Ordinance, have not been expressly made applicable to the proceedings under the said Ordinance yet, in practice, the Rent Controllers and the authorities hearing appeals against their orders generally follow the principles of the Code in dealing with the aforesaid proceedings and the appeals arising out of them in so far as the above principles do not come into conflict with the express provisions of the said Ordinance. According to Order XXIII, rule 1 of the Code, a plaintiff can withdraw his suit with permission to file a fresh one and-if he does so his .Subsequent suit is not barred by the principle res judicata as spelled out in section 11 of the Code. Such withdrawal of a suit can be allowed not only by the trial Court but also by the appellate Court on the strength of section 107 of the Code. The cases of Ismail v. Fida and another (PLD 1965 SC 634) and Muhammad Shafi v. Nawab and others (PLD 1957 Lah. 649) are some of the numerous authorities on the point. Section 14 of the said Ordinance has also been enacted for applying the principle of res judicata to proceeding under the .Said Ordinance.
Therefore, on the analogy of a suit withdrawn with the permission of the appellate Court to file a fresh suit on the basis of the same cause of action, an ejectment application withdrawn with permission of the Appellate Court to file another application on the same grounds as pressed in the earlier application should not stand in the way of the institution of the fresh application.
6. In the present case, the order of the learned Additional District Judge allowing the withdrawal of his appeal by the respondent is not an order simpliciter in that behalf inasmuch as it expressly allowed him to file a fresh application for ejectment, on payment of costs. The cumulative effect of his order, therefore, is that the learned Additional District Judge, allowed the respondent to withdraw his former application with permission to file a fresh one on the same grounds as taken in the earlier application. Thus the decision of the learned Rent Controller on the former application was wiped out and there remained nothing in the filed to warrant the application of section 14 of the said Ordinance. In this view of the matter, the application giving rise to the present ,appeal was not hit by the provisions of section 14.
7. Besides law, the equities are in favour of the respondent. As pointed out earlier, the order of the learned Additional District Judge permitting the respondent to file a new application was made with the concurrence of the learned counsel for the appellant. The said learned counsel also received the costs the payment whereof was a condition precedent to the filing of afresh application. It was in view of the aforesaid conduct of the learned counsel for the appellant coupled with the order of the learned Additional District Judge that the respondent abandoned his right to obtain the verdict of the first appellate Court on the questions involved in his earlier application, which could possibly be in his favour. It will, therefore, not be just and equitable if the respondent is now told that he could no file a fresh application for the ejectment of the appellant in terms of the order of the learned Additional District Judge to which learned counsel for the appellant was a consenting party.
8. If the appellant was not satisfied with the order of the Additional District Judge allowing the respondent to wiihdraw his appeal with permission to file a new- application, he should have gone in second appeal but h. Chose not do so. Whether or not that appeal would have succeeded in view of the consent given by his learned counsel to the passing of the aforesaid order is a question which would have been considered by this Court if a second appeal had been preferred. Since the appellant did not have recourse to that remedy, he cannot be permitted to question the validity of the above order.
9. Keeping all these factors in view, I endorse the opinion expressed by the two tribunals below that the application in which the order impugned herein was made was not barred by the provisions of section 14 of the said Ordinance.
10. It was also urged by the learned counsel for the appellant that the respondent had failed to establish his personal need. With a view to substantiating his contention, he read out, from his brief, the statements of the witnesses examined by the parties. Appearing as his own witness, Muhammad Latif respondent (A. W. 3) deposed that presently he is living in Sialkot rented house but as the owner of that house is pressing hard for its vacation, he requires the house in dispute for his own occupation. His statement is supported by Abdul Qayyum (A. W. 1) and Ahmad Din (A. W. 2) in rebuttal. The appellant, Sh. Muhammad Hussain. (R. W. 4) and his two witnesses, namely Muhammad Shafiq (R. W. 2) and Daud Hasan (R. W. 3) simply stated that the respondent does not need the house in dispute. They, however, did not deny that he is now living in a rented house or that the owner of that house does not want him to move out of it. I, therefore, find nothing wrong with the concurrent finding recorded by the two tribunals below that the respondent requires the house m dispute for his own occupation.
11. As I find no force in this appeal, it is dismissed in limine. The appellant is, however, allowed two months' time to vacate the house in dispute.