' This Second Appeal from the order of the District Judge, Kohat dated 19th March, 1979 arises in the following circumstances :
2. The appellant Haji Malak Khan son of Sarwar Khan, resident of Jangal Khel, Tehsil and District Kohat instituted an application for the ejectment of the respondent, Mir Hassan son of Gul Azam under section 13 of West Pakistan Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) from a shop bearing No, C-540, situate outside Tehsil Gate, Kohat City, originally an evacuee property, in the Court of Civil Judge, Kohat exercising the powers of the Rent Controller under the Ordinance on the solitary ground that the shop was required for reconstruction. The respondent who is a tenant' in the suit shop resisted his ejectment on three-fold grounds :
(1) that the petition was barred under section 14 of the Ordinance in view of the rejection of the earlier application of the landlord,
(ii) the non-service of notice under section 30, Displaced, Persons (Compensation and Rehabilitation) Act 1958 (Act XXVIII of 1958) (hereinafter called the Act) and
(iii) that the suit property being in good condition did not need reconstruction.
' The learned Rent Controller after framing issues arising out of the pleadings of the parties recorded the evidence and vide his order, dated 30th March, 1978, allowed the application and granted a grace period of four months to the tenant respondent for vacating the shop. He also ordered the appellant-petitioner to reconstruct the suit shop within a period of six months from the date of eviction of the respondent. The parties were left to bear their own costs.
3. The tenant respondent took an appeal to the learned District Judge, Kohat from the said order of eviction which came up for hearing on 19th March, 1979 and was accepted vide order of the said date. The learned District Judge while accepting the appeal of the tenant and dismissing the ejectment petition of the landlord came to the conclusion that because the parties had earlier entered into litigation before the learned Rent Controller, wherein the petitioner had sought ejectment of the respondent for reconstruction of the property, which was rejected on 23rd June, 1965 and an appeal by the appellant-petitioner was also dismissed by the appellate authority On 20th September, 1965, the second petition was barred by section 14 of the Ordinance. The learned District Judge, Kohat, while accepting the appeal also held that notwithstanding the repeal of the Act with effect from 1st July, 1974 by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 the' tenant was still entitled to a notice of transfer under section 30 of that Act for the reasons that the right vested in the tenant cannot be divested by coming into force any fresh law superseding the old laws.
4. Being aggrieved of the aforesaid order the landlord has now come up on Second Appeal to this Court. The case of the appellant is that after the rejection of his earlier application for ejectment of the r6spondent from the suit shop on the ground of lack of bona fide in the petitioner, the petitioner had now acquired sufficient means to reconstruct the shop and that by afflux of time the property in question had become more dilapidated and needs reconstruction. In _other words the appellant alleges that although he might have lacked bona fide intention to reconstruct the building at that time he now earnestly, in a bona fide manner, required the shop for reconstruction.
Mr. Z. Mahfooz Khan, the learned counsel for the appellant, further assailed the order of the learned appellate authority on the ground that by repeal of the Act any protection which was accorded to a tenant under its section 30 in the erstwhile evacuee property transferred to a person under the Act had come to an end on 1st July, 1974 and that although the earlier ejectment petition of the appellant was also dismissed for non-service of the statutory notice on him, this plea was now not available to the respondent. He further assailed the judgment under appeal on the ground that in finding lack of good faith in the appellant in requiring the property for reconstruction the learned District Judge has misread the evidence in that he came to this conclusion by holding that the application for the sanction of the proposed construction was moved before the Municipal Committee on 11th June, 1977 I. e. On the same day when the sanction was accorded and the proposed plan was also sectioned whereas it was clearly established from the evidence that the application seeking the sanction to reconstruct was moved on 25th May, 1977 and was processed through in due course of time to the final order of grant of sanction on 11th June, 1977.
5. I would like to take up the last contention of the learned counsel for the appellant before dealing with the above-stated questions of law involved in the matter. The learned District Judge came to the conclusion that the accord of sanction by the Municipal authority was not obtained by the appellant in a straightforward manner and was obtained in collusion with the staff concerned as the whole process for applying for the requisite sanction from the Municipality and the grant thereof took place on one date, i. e. II the June 1977. A perusal of the statement of P. W. 1 Kaikbobad Shah, a Record-Keeper of the Municipal Committee, clearly shows that the application of the appellant for grant of sanction was moved on 27th May 1977 and was accepted on 1 1 the June 1977.
On the same day a proposed plan for construction was also approved. No exception can be taken to the sanction for reconstruction and the approval of the site plan on the same day as whenever a sanction is accorded by a Municipal Committee or a Corporation for construction of a building it is sanctioned in accordance with the proposed plan and thus approval of the plan takes place simultaneously with the grant of sanction. There is thus much force in the contention of the learned counsel for the appellant that the learned District Judge has misread the evidence. The finding of lack of bona fide intention on the part of the appellant on this ground, therefore, does not have any substance.
6. Now coming to the non-service of the requisite notice on the tenant. I find from the copy of the judgment of the learned District Judge, Peshawar camp Kohat, dated 20th September 1965, placed on record by the tenant-respondent, that in the earlier litigation the ejectment was also defended by him on the ground that the appellant-petitioner had not served any notice under section 30 of the Act after acquiring the suit property and, therefore, the application was also not competent.
This plea prevailed. Also in the same judgment it was held that the landlord petitioner did not require the property for reconstruction in good faith. It is an admitted position between the parties that even after the rejection of the said application no notice under section 30 of the Act was served by the appellant on the tenant-respondent.
7. It has been contended on behalf of the appellant that what the Legislature intended by section 30 of the Act was that the tenant should get the information in regard to the property which was in his possession as a tenant under the Custodian, Evacuee Property that it now stands transferred to someone else and that the transferee demands payment of rent from him either on the same rate which he was paying to the Custodian Evacuee Property or a rent on the basis of the latest assessm ent of the local body or the Municipality, as the case may be and that the law protected the tenancy of the occupant for a period of six years from the date of notice during which the landlord was deprived of the right to seek the tenant's ejectment on any ground which could be available to him under the law of the land provided the tenant did not violate the provisions of the said section. According to the learned counsel this requirement of law was fully satisfied and the tenant respondent had the information of the transfer and was admittedly paying rent to the appellant for the last 30 years. The.. Learned counsel contends that the previous litigation between the parties was a sufficient notice for the purposes of section 30. His further contention is that the Act having been repealed in 1974 no such protection was now available to the tenants of the evacuee property which stood transferred to others. The question whether a notice required to be served under section 30 of the Act could be an implied notice or information received in aliened came up before the Supreme Court of Pakistan in E. A. Evans v. Muhammad Ashraf (1) which is the leading authority on the subject. The majority of . The Judges of that Bench took the view that reading the provision of the Act as a whole section 30 was not intended to protect private rights, for, mere allottees did not by the allotment alone acquire any right in the property but were designed as a matter of public policy to give general protection to such occupants not only as to removability for a reasonable period but also as to occupation upon payment of a reasonable rent. Their Lordships, therefore, held :- "It is difficult to accept upon wording of this section that such a notice could even be implied notice or information received aliunde. In the face of the language of the proviso, which requires that the notice should be served "by registered post (acknowledgement due)", such an interpretation is not possible. To hold that, notwithstanding such clear and unambiguous words even implied notice would be sufficient to render the words "by registered post (acknowledgement due)" in the proviso redundant, which cannot be done. Every word in a statute has to be given a meaning and the only meaning that these words are capable of bearing is that express notice in writing must be given in the manner prescribed."
In view of the above authority and a number of cases which followed the same it is now well- settled law that the notice required to be served under section 30 of the Act has to be served on the tenant by registered post acknowledgement due and that the protection acquired under that section by a tenant cannot be waived or otherwise taken away.
8. This leaves me to the question of the effect of the Evacuee Property and Displaced Persons Laws (repeal) Act (XIV of 1975). This Act has repealed a number of Laws including the Act with effect from 1st day of July 1974. The saving clause is contained in subsections (2) and (3) of section 2 ibid which read as follows :-- "(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand (1) PLD 1964 SC 536 transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate."
' As this repealing Act in its saving clause confines itself to the matters mentioned therein and is silent in regard to the rights, protection and interest, etc. Acquired under the repealed Act, the provisions of section 6 of the General Clauses Act, 1897 would come into play which read as under :- "(6) Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or thereafter to be made, then, unless a different intention appears,, the repeal shall not- affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or The repealing Act when read with section 6 of the General Clauses Act would make the position clear that all the rights, interests, obligations or liabilities acquired under the repealed Act remain intact notwithstanding its repeal for the simple reason that the repealing Act has not by expression or intendment taken away these rights, interests and privileges. Thus the right of a person in possession of the property transferred under the Act of the receipt of a notice of transfer and demand by registered post acknowledgement due as provided by section 30 thereof still remains intact in all those cases where the property was transferred before the repeal of the Act and tenancy came into being between the occupant of that property and the transferee thereof during the period when the Act was in force. The earlier ejectment application by the appellant against the respondent could therefore, not be taken away the protection accorded to him under the relevant section. The question now arises as to what would be the affect of non-service of notice on the present application. What is sought by the present application is vacation of the suit property by the tenant to enable the landlord to reconstruct the same. Now this vacation could only be temporary in its nature because law provides that the tenant shall be entitled to re-occupy the property on payment of reasonable rent after the reconstruction by the landlord. The relevant provision of law is contained in subsection (5- B) of section 13 of the Ordinance, which is as follows :- "Where, in pursuance of an order under clause (iv) of subsection (2), a landlord has obtained possession of a building (in this subsection (referred to as the old building), and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation, and the Controller shall make an order accordingly in respect of the area applied for or such smaller area, as considering the location any type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality."
' By subsection (5) of section 13 of the Ordinance it has been provided that :- `Where a landlord has obtained possession of a building in pursuance of an order under clause (vi) of subsection (2) of this section and does not have the building demolished within a period of, four months from the date of taking possession of the same or does construct the new building within a further period of two years after. The expiry of the period of four months from the date of taking possession of the same, he shall, unless he satisfies the Court that he was unable to construct the building within the prescribed time for reasons beyond his control be punished with imprisonment for a term which may extend to six months or with fine or with both."
9. In the instant case it is in evidence that the appellant-petitioner has in most unequivocal and unambiguous terms taken upon himself during the course of his statement before the Court that he would put the tenant respondent in possession of the suit shop on payment of reasonable rent after its reconstruction. The respondent, during the course of cross-examination, was put a pertinent question to the effect that in case his re-occupation of the suit shop after the reconstruction was guaranteed, would he be willing to enable the appellant-petitioner to reconstruct the same. The respondent made the following reply to this question :- {{URDU TEXT}} ' Incidentally the above-mentioned undertaking on the part of the appellant and the denial of the offer by the respondent goes a long way to establish good faith on the part of the appellant and at the same time malafide on the part of the respondent. Moreover, nothing was brought out in the cross-examination of the appellant petitioner to show that the requirement to rebuild the shop was not bona fide on his part. It was held in Ahsanul Haq and 5 others v. Abdur Rahim (1) that "the provisions of section 13 (5) of the West Pakistan Urban Rent Restriction Ordinance, 1959 are an adequate check against any abuse by the landlord of the provisions of section 13 (2) (vii)."
10. Section 30 of the Act by its necessary intendment accords protection to the right of residence only to a tenant or an occupant for a period of 6 years from the date of transfer or from the date of service of notice. It nowhere deprives the transferee of the property of the right to get a temporary vacation from the occupant for the purposes of reconstruction if he feels that the property is in need of such reconstruction. An ample safeguard to the tenant who so vacates the property has been provided by the above-reproduced subsections (5) and (5-B) of the Ordinance. It is thus clear that the protection of the right of residence for a certain period accorded to the occupant of the property by section 30 of the Act can neither be violated nor is taken away by the transferee if he D intends to demolish and reconstruct the same due to necessity. The question whether a notice under the said section was served or not would in such a cage as that become immaterial. I am therefore constrained to say that the Courts below have so far been misapplying and misinterpreting law in rejecting the applications of the appellant on the ground of non-service of notice.
11. Coming to the effect of the law contained in section 14 of the Ordinance on the present proceedings between the parties it would not be out of place to reproduce the section under reference :- "14. Decisions which have become final not to be re-opened.-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 any former proceeding under this Ordinance."
' On the basis of this provision of law it was contended on behalf of the tenant-respondent that the landlord-appellant had earlier instituted an application, for his ejectment on the ground of his requirement of the suit shop for reconstruction. This application was rejected by the learned Rent Controller on the sole ground of non-service of notice under section 30 of this Act on the respondent, although the landlord-petitioner was held entitled to demolish and reconstruct the building regard of the condition of the building. The finding was thus repelled by the District Judge, while, on 20th September, 1965, dismissing the appeal of the landlord-petitioner against dismissal of Ejectment Petition :-- "I have also examined the actual necessity claimed. I find that the landlord's act has been collusive and unfair. He obtained a report from an. Overseer of the local body who did not inspect the property with any particular care and made a report on which a functionary of the committee issued a notice to the owner of the property. Such a notice could have also issued to the occupant of the property but never issued. The Overseer who made the report has appeared and could not justify his report. He made a casual report little caring the extent of the right of the parties involved.
Even on this score the claim of the appellant cannot succeed."'
' It is on the basis of this observation that objection under discussion has been raised.
' A 'cursory glance over the text of section 14 would show some substance in the contention of the respondent but this provision of law, if so interpreted as to place an absolute bar to the subsequent application on the matters earlier decided under subsections (2) and (3) of section 13 of the Ordinance, can lead to some very inconvenient ; if not absurd, results. For example, if an application earlier moved under section 13 (2) for ejectment of the tenant on the ground of default in payment of rent does not succeed for one reason or the other, subsequent default would not entitle the landlord to invoke, once again, the jurisdiction of the learned Rent Controller for ejectment of the tenant on the very same ground. Similarly, if this rule of law is stretched to that extent to which the learned lower Court has done, on earlier plea for ejectment of a tenant for subletting the tenanted property on its failure would act as a bar to fresh application on a later subletting by the tenant. Thus the bar contained in section 14 of the Ordinance would act as a perpetual injunction against the landlord debarring him for ever from the exercise of his right to knock at the door of the Rent Controller for redress of the grievance which he might suffer after the failure of the first attempt. The cardinal rule of interpretation of a statute is such a construction as is most agreeable to justice and reason. In this connection a passage from Maxwell on Statutes (page 199 of the 12th Edition) would not be without help :- "In determining either the general object of the Legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true. One. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational construction. The question, of inconvenience or unreasonableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent events."
' Similarly, the preemption in interpreting a provision of law would be against intending injustice or absurdity. In this context Maxwell on Statutes can, once again, be quoted with profit (page 208 of..
The same Edition) :- "Whenever the language of the Legislature admits of two constructions and, if construed in one way, would lead to obvious injustice, the Courts act upon the view that such result could not have been intended, unless the intention to bring it about has been manifested in plain words. If the Court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice."
13. The rule of constructive res judicata at enunciated by section 14 of the Ordinance, in view of the above-quoted rules of interpretation has to be applied in such a manner as it only does not defeat the interest of justice but also does not result in inconvenience or absurdity. It is this context that the words used in the section under discussion "which raises substantially the same issues as have been finally decided in a former proceedings under this Ordinance" are to be interpreted. These words came for consideration in Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai (1) in somewhat different context. In that case the question which came for consideration before the High Court was whether the requirement of a landlord at a particular time and under certain conditions can be considered to be substantially the same issue as a requirement of the successor landlord some years later or even the requirement of the same landlord on a different occasion and under different conditions. The High Court held that the requirement of previous tenants could not be equated with the requirement of the sub tenant unless all the circumstances which go to make up such requirement are identical in both the cases which was most unlikely. Mr. Justice Z. A. Channa, J. On comparison of the rule of constructive res judicata as contained in section 14 of the Ordinance with that enunciated in the Code of Civil Procedure, 1908 rebutted the contention raised before him that a substantial similar issue as the one which has finally been decided under the Ordinance cannot be raised and is barred, even if the former issue was between the parties other than the parties between whom subsequent issue has arisen, in the following passage from his above-cited judgment :- "On a cursory reading of section 14, the argument may seem attractive, by reason of absence of any reference in section 14 to the requirement of the two issues being between the same parties as required in section 11, Code of Civil Procedure, but a closer examination of the provisions of section 14 of the Ordinance leaves no room for doubt that the requirement of one landlord of premises in the occupation of a tenant for his personal use or the use of his children can and will not only be different from the requirement of a successor landlord, who may have purchased the premises for the purposes of personal occupation, but even the requirement of the same landlord at different times could be different. For instance, a landlord may have been found not to be bona fide requiring the accommodation in the occupation of his tenant, because he is then occupying suitable accommodation, either rented or given to him by Government or by his employers.
However, if the tenant is ejected from the accommodation in his occupation, either on account of proceedings taken against him by his landlord or on account of his retirement from service or similar valid reason, the requirement of the landlord will then completely change and he would clearly be requiring his own house for his personal occupation. It cannot be said that the issue of his requirement on the former occasion, when he was occupying suitable accommodation, and his requirement on the subsequent occasion, when he has been ejected from his former accommodation and may be particularly on the streets, is the same."
14. In a case from Indian jurisdiction cited as B. K. Narayana lyengar v. H. V. Sabha Rao and another
(2) where the matter in issue in the previous case was as to whether the landlord bonafidely required the house for the use of his mother and brother at the time of that application, a subsequent application that the landlord required the suit house for his (1) PLD 1979 Kar. 597 (2) AIR 1958 Mys. 113 bona fide use was held not be barred either by the principles of constructive res judicata or under section 11, Mysore House Rent and Accommodation Control Act, which section contained almost identical provision with that of section 14 of the Ordinance. The learned Judges of Mysore High Court while interpreting the word "issue" as following "the dictionary meaning of the word "issue" is, a point in question between contending parties in action ; a question of fact or law on which the parties are at variance."
' Proceeded to compare section 11 of the Mysore House Rent and Accommodation Control Act with section 11 of the Code of Civil Procedure in the following manner :- "It is true that there is some difference in the phraseology used in S. 11, C. P. C. And S. 11 of the Mysore House Rent and Accommodation Control Act. Section 11. C. P. C. Lays down that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. In S. 11 of the Mysore House Rent and Accommodation Control Act there is no reference to the matter directly and substantially in issue but on the other hand the words used are "the Court shall summarily reject any application which raises between the same parties substantially the same issue.
' It is possible to argue from this difference in the language that what was made res judicata under S. 11, C. P. C. Is the matter That was substantially in issue and finally decided in the previous case but under the Mysore House Rent and Accommodation Control Act what is relevant is the "issue" and not the matter in issue.' This interpretation if accepted will lead to anomalous results. Let us take into consideration the case where the landlord applies for the eviction of the tenant on the ground that he has defaulted in the payment of the rent. The application is rejected. Then according to the contention of the petitioner the landlord will have no further right to apply for the eviction of the tenant on the ground that he has subsequently defaulted in the payment of the rent.
' Again the Landlord who had applied for the eviction of the tenant on the ground that the house needed repairs, if the application is rejected cannot apply for the eviction of the tenant even if later on it becomes necessary to repair the house. Unless there are compelling reasons it is unreasonable to accept such a construction. The difference in the language employed in the two .Provisions though could have been avoided has not made any difference in law. They mean the same thing. In my judgment S. 11 of the Mysore House Rent and Accommodation Control Act is a statutory incorporation of the well-known doctrine of res judicata. The dictionary meaning of the word "issue" is a point in question between contending parties in action ; a question of fact or law on which the parties are at, variance.
' The word "issue" in S. 11 of the Mysore House Rent and Accommodation Control Act means the dispute between the parties.
' Every issue must relate itself to a matter in dispute. It may be a question of fact or law. What is important is the identity of the matter in dispute. A dispute which arises subsequent to the earlier decision cannot be barred by res judicata by reason of the earlier decision".
' In another Indian case under Building, Lease and the Eviction Control Act, 1947 Kedarnath Gupta v.
Nagindra Narayan Sinha and others (1), which enjoined on the Controller to summarily reject any application which raised substantially the same issue as had been heard and finally decided in a former proceedings under that Act between the same parties or between the parties under whom they were claiming, a Division Bench of the Patr a High Court held that subsequent case on ground of bona fide requirements was not barred even if the previous case of landlord for eviction of tenant on the ground of bona fide requirements was dismissed.
' In the case in hand, the appellant had sought eviction of the tenant on the plea of requirement of suit property for reconstruction as early as on 20th January, 1965 which was, on 20th September, 1965, ultimately refused on the ground that the notice to demolish served on the appellant by the local body was collusive. It was on 1st June, 1977 after a lapse of about 12 years from the rejection of his earlier eviction application that the appellant instituted a fresh application on the ground that the shop was required for reconstruction as the building had become very old and had much deteriorated for which he had duly obtained sanction from the local Municipal Committee. The condition of the suit shop became the most hotly contested issue between the parties as the case of the present respondent was that it did not need reconstruction. Mohammad Abdul Jamil, P. W. 2, overseer of the Municipal Committee, Kohat who appeared to prove the sanction of the Committee for reconstruction was put pointed question on behalf of the respondent on the condition of the shop as he had visited the same in the approval of plans proceedings. This witness positively asserted in reply thereto that the roofs of both the shops (the other being adjacent in the same building also owned by appellant but not in suit) were of very old times and were (34.ty4) Even the respondent also admitted that the roofs of the shops were (ITT.5) while the walls were of pucca construction. A local Commissioner appointed on the behest of the landlord appellant reported that the suit property was very old and needed reconstruction. Another Commissioner was appointed on the application of the tenant who reported that although the roofs were Katcha and the building was very old it was not in such a dilapidated condition as to warrant immediate demolition. These contradictory reports of the local Commissioner led the learned appellate authority to reject the plea of need of reconstruction of the property although the age old condition of the shop and Katcha roofs thereof were even admitted by the tenant. Moreover, it is the desire of the landlord-to reconstruct and not the condition of the building which is relevant for the decision when the vacation of property is sought by the landlord, for reconstructing the same. The Court has to determine whether the landlord requires it for the construction in good faith. The bona fide intention of the appellant at the time of the present application was fully established from his undertaking given in Court to the respondent that he would hand over the possession of the suit shop to the respondent (1) AIR 1954 Pat. 97 after reconstruction which offer was categorically rejected by the tenant-respondent. It was for the Courts below to have seen whether there was bona fide intention to rebuild which in view of the foregoing discussion on evidence stands fully established on the record.
The moment it is established that intention behind the institution of this later application is bona fide, the bar of section 14 of the Ordinance would not come into play as, a landlord who failed to establish good faith on his part or genuine need to reconstruct in moving the earlier application could not be said not to have bona fide need to do the same after the efflux of about 12 years in case he successfully establishes his bona fide intention. In the matter in hand, the issue in the earlier proceedings was the bona fide intention to reconstruct at that time while in the latter proceedings the matter in issue was whether the property at this stage needed construction or the petitioner genuinely intended to do the same. It is thus clear that rejection of an earlier application will not always act as a bar under section 14 of the Ordinance even in cases where eviction is sought for reconstruction as every fresh need or desire to reconstruct would give a fresh cause of action. The law of constructive res judicata as, enunciated by the section under reference would only come into play when on identical reasons and in identical circumstances, after the earlier unsuccessful attempt, the ejectment of the tenant is subsequently, once again, sought. It does not need much imagination to appreciate that a building which did not need demolishing at a certain time would not become so deteriorated after the lapse of a dozen or so years, as to warrant demolition or reconstruction.
15. For all the foregoing reasons, I find much force in this appeal, which is accepted. The order of the Court below is reversed. The respondent is granted a period, of three months from this day to hand over the vacant possession of the suit shop to the appellant. The respondent would retain the first option to re-enter the property as a tenant under the appellant after its reconstruction on payment of reasonable rent. Parties to bear their own costs.