' MUHAMMAD KHALID MEHMOOD KHAN. J.--- Through this constitutional petition, the petitioner has assailed the order dated 21-5-2002 passed by Rent Controller and order dated 4-6-2002 passed by Addl. District Judge being the appellate authority claiming that both orders are without lawful authority.
2. Briefly stated the facts of the case are that respondent No.3 filed an application under Order VII, Rule 11, C.P.C. In rent petition pending between the parties claiming that rent petition is hit by the doctrine of res judicata as earlier ejectment petition between the same parties was dismissed on 22-5-2000. It was further asserted that petitioner has got no cause of action as he has failed to place on record the proof of his membership. The learned Rent Controller vide order dated 21-5- 2002 dismissed the petition. The respondents assailed the said order through an appeal which too was dismissed vide order dated 4-6-2002 on the ground that order on application under Order VII, Rule 11, C.P.C. Is not appealable, hence, the present petition.
3. Learned counsel for the petitioner submits that it is an admitted fact between the parties that an earlier ejectment petition between the same parties was dismissed on 22-5-2000, the said order was not assailed before any competent court of law and as such it attained finality, hence, second application on the same ground was not maintainable. He further submits that ground of petitioner in earlier ejectment petition was, that relationship of landlord and tenant does not exist between the parties and an issue to this effect was framed but due to failure of respondent No.3 to prove the relationship of landlord and tenant the petition was dismissed and as such the finding of learned Rent Controller became final. He further submits that under section 14 of Rent Restriction Ordinance 1959, second petition is not maintainable and learned courts below have erred in law while dismissing the petitioner's application under Order VII, Rule 11, C.P.C.
4. The respondents were summoned, but they failed to appear and as such they proceeded against ex parte.
5. Heard, record perused
6. It is an admitted fact that earlier respondent No.3 filed an ejectment petition against the petitioner. The petitioner denied the relationship of landlord and tenant, learned Rent Controller framed the issue regarding existence of relationship of landlord and tenant. The said ejectment petition was dismissed on 22-5-2002 when the learned Rent Controller struck down the petitioner's right to adduce evidence by invoking the provisions of Order XVII, Rule 3, C.P.C. The respondent No.3 admittedly has not assailed the said order through further appeal and opted to file second ejectment petition by adding ground of default in the payment of rent. In earlier petition the said ground was available but the default period was 18 months whereas in the second petition the period of default is claimed as 24 months. All other grounds are same. The learned counsel has attacked the second petition in the ground of res judicata the same grounds have been taken in the second petition. The argument,of learned counsel is that primary dispute between the parties is about the existence of relationship of landlord and tenant which become final and as such the Rent Controller has no jurisdiction to entertain the second rent petition and the only remedy available to respondent is a suit for possession. Learned counsel has relied on Abdul Qadir and 6 others v. Haji Shakar Khan Barech (1987 CLC 1816), Rana Zahid Ali Khan and 5 others v. Ehsan Elahiee (PLD 1977 Lahore 538), Abdul Hamid and others v. Hafiz Abdullah (PLD 1969 Karachi 82), Abdul Wahid v. Eid Muhammad and 2 others (1990 SCMR 747), Rajab Ali Syal v. Mst. Ahmadi Begum and another (1982 SCMR 568), Mrs. Zuhaida Begum v. Mrs. S.T. Naqvi (1986 SCMR 261), Nasim Javed v.
National Bank of Pakistan, I.I. Chundrigarh Road Karachi (PLD 1985 Pesh. 91), Zardad Khan v.
Muhammad Ayaz Khan (1997 CLC 1825), Sufi Ghulam Mohy-ud-Din v. Khushi Muhammad and others (1997 CLC 636), Hoshair All v. Ghulam Sabir (1993 CLC 2476) and Rahat Mahmood v. Tariq Rashid and another (PLD 1993 Karachi 648):
7. The earlier order for dismissal of rent petition shows that it was passed on 22-5-2000 when the learned Rent Controller closed the respondent No.3's right to adduce evidence. The only question requires resolution is whether order passed under Order XVII, Rule 3, C.P.C. In rent petition is a final determination of dispute between the parties. The rule of res judicata is a rule of universal law, the crux of the said rule is that there should be an end to litigation. For attracting the rule of res judicata, it is necessary that there should be final judgment rendered by a court of competent jurisdiction as it is the merits which finally settle the rights of parties. The principle of res judicata is that, the cause of action in the suit merges in the judgment and as such second suit on the same cause of action could not be brought before the court again for determination. The basic rule thus is that there should be an end of litigation between the parties concerned. The rule shows that dispute should be heard and finally decided. This mean the litigation with respect to cause of action should be finally decided, thus it is clear that for applying the rule of res judicata, the following ingredients should be present.
(1) Forum or the competence of Court of Law.
(2) Panics and their representatives.
(3) Matter in issue.
(4f Matter which sought have been made ground for defence or attack in the former suit or
(5) The final decision.
' The most important word used in section 11 is the finally decided.
8. Now the question arose whether in the present case matter was finally decided between the parties or not? And the Code of Civil Procedure is applicable on rent proceedings or not?
9. It is a settled law the Civil Procedure Code is not applicable in I rent proceedings under Rent Restriction Ordinance, 1959. The case under Rent Restriction Ordinance 1959 has to be decided by a Rent Controller in accordance with special Law i,e, Ordinance, 1959, under the Ordinance, 1959 the discretion is available to Rent Controller to adopt the procedure of Civil Procedure Code where he thinks-proper for regulating the rent proceedings. Although the provision of Order XVII, Rule 3 was not available to Rent Controller but Rent Controller passed the order for dismissal of rent petition by adopting the said provision of law but even there the parameter of Civil Procedure Code will not be applicable qua the order referred-to above as in Civil Procedure Code the order under the said provision of law is- appealable and in rent petition it is not.
10. In these circumstances, it has to be seen whether the order passed in earlier petition will operate as res judicata or not?
11. In Rent Restriction Ordinance 1959 section 14 deals such-like dispute. For better appreciation of the provision of section 14 ibid it is reproduced as under:- "The Controller shall summarily reject any application under subsection (2) or under subsection
(3) of S. 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance."<./i>
12. The said provision of law shows that the Rent Controller shall summarily reject the ejectment application under subsection (2) or subsection (3) of section 13 which raises substantially the same issue which was finally decided in earlier ejectment proceedings.
13. The perusal of above said provision of law shows that Rent Controller enjoying the powers to dismiss the second rent petition if substantial question of fact was decided by the Rent Controller in earlier proceedings.
14. Under subsection 13(2) the grounds of ejectment of tenant are mentioned and subsection 13(3) the grounds available to landlord for filing the ejectment .Petition are available, this mean if earlier ejectment petition was decided on the grounds mentioned in section 13(2), (3) finally then under section 14 of the Ordinance 1959 the Rent Controller will reject the petition summarily. In the present case the respondent in his earlier petition raised two grounds i,e, default in payment of rent and personal need but when the petitioner denied the relationship of landlord and tenant an issue was framed and petition was dismissed under Order XVII, Rule 3, C.P.C. On the sole ground relationship of landlord and tenant, meaning thereby the two grounds taken by the respondent in his earlier petition was no even touched by the Rent Controller, hence, the learned Rent Controller rightly entertained the said ejectment petition. The words used in section 14 are "Finally decided".
The final decision mean to deliberate on an issue either accepting or rejecting the same after conducting full inquiry, the word "finally decided" could not be interpreted in its narrow meaning, the meaning of word decided with reference to section 14 ibid to finalize the inquiry after recording evidence on merit. It is an admitted fact the earlier rent petition was dismissed on technical ground and no inquiry was conducted by the Rent Tribunal, hence, the second ejectment petition was not barred in terms of section 14 ibid.
15. The judgments relied upon by the learned counsel for the petitioner are not relevant in the present rent proceedings as in Special Law, section 14 is available for attending the rent issues.
16. The other aspect of the case is that in the presence of section 14 of Ordinance, 1959, the petitioner's application under Order VII, Rule 11, was not maintainable, the Rent Controller was empowered to pass the order under section 14 ibid, hence, the learned appeal Court has rightly held that order passed on appeal under Order VII, Rule 11 is not .Appealable in rent matter.
17. The issue of section 14 read with section 11, C.P.C. Came up before Quetta High Court in a case titled Mursleen v. Ghulam Sarwar and others (PLD 1987 Quetta 8). The issue in this case was that a rent petition was decided on the basis of compromise between the parties and it was held as under:--- "A decision arrived at by a competent authority after full inquiry on matters in issue between the parties should ordinarily be not allowed to be re-agitated between the same parties. This is the principle of res judicata. Such a decision must be arrived at by a competent authority and not through a private settlement, which of course would not attract the principles of res judicata. In case in hand, an order was passed by the Controller on the basis of a compromise. The moot question, therefore, is whether such order has finally disposed of the issues between the parties.
The previous application (62/69) was filed by four of the landlords (including Ghulam Sarwar) for the personal use and occupation of the shop for one of them (Muhammad Umar).. The issue, therefore, was whether Muhammad Umer required the shop in good faith for his personal use and occupation. The compromise arrived at did not correspond to the issues. The settlement so arrived had no reference at all to Muhammad Umar or his personal needs. It was in respect of re- construction. The learned Controller ordered eviction in terms of the compromise and not conducting any inquiry himself. This clearly indicates that he did not finally 'decide' the issues which arose out of pleadings of the parties."
18. An issue regarding the dismissal of ejectment petition on the basis of non-production was dilated upon by his lordship Mr. Justice Salim Akhtar, as then'he was of Sindh High Court opined as under:--- Bar of second eviction application of section 14 of Rent Restriction Ordinance 1959 is not attracted where first application is dismissed on technical ground or for non-prosecution without deciding matter on merits."
19. In view of the above this petition fails and is dismissed. As it is a matter of rent and the petition was filed in 2002, the same is lingering on without any final disposal, the learned Rent Controller is directed to decide the rent petition within two months on receipt of certified copy of this judgment.