'MUHAMMAD ATHAR SAEED, J.---On the last date of hearing, a legal point had been raised by the learned counsel for the petitioner that since the case of the present respondents is hit by the doctrine of res judicata, therefore, the orders passed by the learned trial Court and appellate Court cannot be sustained. Learned counsel were put on notice to satisfy the Court that on the basis of this legal point the ejectment application filed by the respondent before the learned trial Court was not maintainable. At the very outset, learned counsel for the respondents submitted that the applicant had filed three rent applications which are detailed below:---
(1) R.C. No, 782 of 2001 filed on 21-11-2001.
(2). R.C. No, 214 of 2002 filed on 24-5-2002.
(3) R.C. No, 367 of 2003 filed on 27-1-2003.
He submits that the first application was withdrawn on 24-5-2002 and during the hearing of the second application present applicant had filed an application for B rejection of rent application on the basis of res judicata and this application was dismissed by the Rent Controller vide his order dated 25-4-2003. He submits that during the hearing of the third rent case i.e, Rent Case No,367 of 2003, the present petitioner had not challenged the maintainability of the case on the doctrine of res judicata and drew my attention to the written statement filed on behalf of the opponent No,2 wherein only three preliminary legal objections were taken which did not include challenge to the maintainability of the case on any basis whatsoever. Elaborating his arguments, he said that the superior Courts have held that the doctrine of res judicata will not be applicable to rent proceedings and in this C connection he drew my attention to section 14 of West Pakistan Rent Restriction Ordinance whereby it was specifically provided that the Rent Controller will not entertain any fresh case in respect of the points which have already been raised in any previous case. He pointed out that since any clause para meteria to section 14 of the repealed Ordinance has not been incorporated in the Sindh Rented Premises Ordinance, 1979, therefore, the intention is clear that doctrine of res judicata proceedings would not be applicable to rent proceedings. On this proposition of law he relied on the following case laws:--
(1) 1999 CLC 1102, (2) PLD 1982 SC 201, (3) PLD 1985 SC 220 and (4) 1998 MLD Karachi 894.
2. On the basis of these cases, he argued that his case is not hit by the doctrine of res judicata and the learned Courts below have committed no infringement of law while passing the impugned orders. The learned counsel for the petitioner conceded that this point was not raised before the learned trial Court, but drew my attention to ground No,6 of the appeal filed before the Additional District Judge wherein it was specifically mentioned that the trial Court ought to have considered that the principle of res judicata is applicable and as such the learned trial Court should have dismissed the respondents' application. On a perusal of the impugned order, it is apparent that the appellate Court has not adjudicated upon and not given any finding on this ground D raised by the present petitioner in their appeal. The learned counsel for the respondent submitted that although this ground was raised in the appeal but no arguments were advanced by the counsel appearing for the present petitioner before A.D.J. And, therefore, the A.D.J. Was not bound to give any finding on this point of law. He also argued that since this point was not raised nor argued before the learned trial Court, it could not have been raised before the learned A.D.J. However, it is settled law that questions of law, which goes to the very root of the matter can be raised at any stage of the proceedings. If any authority is required, reliance can be placed on Gatron (Industries) Limited v.
Government of Pakistan and others 1999 SCMR 1072.
3. I have examined the judgments relied upon by the learned counsel for the respondent and I find that in these judgments it has not been laid down conclusively that doctrine of res judicata does not apply to rent proceedings but decision has been given on the basis of facts of each case. Since this Court in its constitutional jurisdiction cannot examine the facts of the case, therefore, I am of the opinion that it would be in the interest of justice and fitness of things if the case is remanded back to the Additional Sessions Judge to examine the ground raised by the petitioner in their appeal relating to the applicability of res judicata to the case of the respondent in the light of the facts and circumstances and decide the same in accordance with law. The learned Additional District Judge is further directed to decide the appeal within three months of the date of this order. .