' The respondent filed a petition for the eviction of the appellant from House No, A/665, Mohalla Arjan Nagar, Rawalpindi City. The respondent had purchased the said house from one Sardar Begum. Raja Muhammad Sarwar, the appellant was in occupation of the house as a tenant. The respondent served the appellant with a notice dated 2-12-1971 (Annexure P/2) under section 13-A of Urban Rent Restriction Ordinance called upon the appellant to pay the rent @ Rs,
100. The petition for eviction proceeded on the ground of personal need, damage to the property and 8 months default preceding the date of filing of the petition. In paragraph 5 of the petition it was specifically stated that the respondent has a big family and required the house for her personal need. In paragraph 4 of the petition it was stated the house in question was in a dilapidated condition and adjacent to the said house was the house belonging to the husband of the petitioner and in- between the two houses there was only one wall and that she intended to reconstruct both the houses by converting it into one house. The learned Rent Controller, framed the following issues :-
(1) What is the legal rent of the property in dispute ? O.P.P.
(2) Whether the respondent has been tendering rent for the alleged period of default ? O.P.R.
(3) Whether the petitioner bona fide requires the house in dispute for his personal use ? O.P.P.
(4) Whether the petitioner wants to reconstruct the house after its demolition ? O.P.P.
(5) Relief.
2. The learned Rent Controller vide his order dated 10-9-1973, ordered the eviction of the appellant.
The appellant filed an appeal and the findings on all the issues except Issue No. 1 were reversed by the learned Additional District Judge. It was specifically noted by the learned Additional District Judge that the site plan (Exh. P. 1) did not contemplate the demolition of the two houses and the renewed reconstruction of the house as one building. In these circumstances the bona fides of the reconstruction were found against the respondent and the findings on Issue No, 4 were reversed.
After the reversal of the findings on Issue No, 4 the learned Additional District Judge could not uphold the findings on Issue No, 3 as well. A perusal of the ground stated in the petition it is abundantly clear that the requirement as stated in the petition was the conversion of two houses into one and thereby to utilize the same for the family. Muhammad Shafi husband and the attorney of the respondent appeared as P. NV.
1. According to his statement no ground for separate use of the house was made out unless it was reconstructed and amalgamated in the house belonging to her husband. The relevant portion of his statement may be reproduced :- {{URDU TEXT}}
3. From the above it is abundantly clear that the acquirement of the respondent was not for the re- construction and the entire evidence supported the requirement of the amalgamation of the two houses and the reconstruction thereon. This aspect of the case has been ignored by both the learned Rent Controller as well as the appellate authority. Reading of the petition as well as of the evidence produced by the respondent made out a clear case of personal need on the reconstruction of the house and not independent of the same. This separate use of the property without reconstruction had never-been urged by the respondent or by her witnesses. The learned counsel could not controvert this position and instead argued that the husband of the respondent had already sold her house and that she now required the house for the personal need. This statement by itself is sufficient to accept this appeal. In case the respondent's husband had sold his house and the appellant wants to occupy the house for that reason it shall constitute a fresh cause of action, for which a fresh petition can be filed. It may be clarified that filing of the second petition on any fresh ground would not be hit by the principle of res B judicata as contained under section 14 of the Ordinance and this order would effect the adjudication thereof.
4. In view of the above discussion this appeal is accepted the order of the learned Additional District Judge, Rawalpindi dated 25-10-1974, and that of the learned Rent Controller, Rawalpindi dated 10-9-1973, are hereby set aside and the petition is ordered to be dismissed. In view of the above circumstances there will be no order as to costs.