This second appeal is directed against the judgment passed by the learned IVth Additional District Judge, Hyderabad in Civil Appeal No. 39/76 on 7-12-1976 whereby the appeal .Was dismissed and the order of eviction passed against the appellant by the learned 1Vth Extra Joint Civil Judge and Controller, Hyderabad in Rent Application No. 103/75 was maintained.
The brief facts of the case are that the respondent claiming to be the owner/landlord of building bearing No. F/131/1-F known as Noor Market, Lajpat Road, Hyderabad on 5-a-1975 filed an application (Rent Application No. 103/1975) for ejectment against the appellant seeking his eviction from the shop No. F/131/1/2/4 of the aforementioned in Noor Market on the ground that be required the premises for his personal and bona fide use and that the appellant was wilful defaulter in payment of rent for the period from November, 1974 to March, 1975. The rate of rent claimed is Rs.
160 per month.
2. The appellant contested the matter, filed his written statement and denied that the respondent/landlord required the premises for his bona fide personal use. It was also denied that the appellant had committed any wilful default in payment of rent. It was further pleaded that he was regular in payment of rent and that as the landlord failed to pay the taxes in respect of the property in question despite demands made by the Excise and Taxation Department, the appellant was served with a notice dated 28-12-1974 by the said Department whereby he was required under section 14 of the West Pakistan Urban Immovable Property Tax Act of 1958 (hereinafter referred to as the Act of 1958) to make all future payments of the entire rent whether the same had accrued or not to the Assessing Authority. Rating area, Hyderabad. In the same notice the appellant was further notified that in case he failed to pay the rent within 30 days of its falling due in compliance of the said notice he would be held liable under section 15 (1) of the said Act to pay the penalty and that same may be recovered from him by attachment and sale of his movable/immovable property as arrears of land revenue as though he was the owner of the property. According to the appellant in view of the coercive process threatened to be taken by the Excise and Taxation Department as stated above he paid a total sum of Rs. 960 to the said department. The plea of the appellant was that in the circumstances he was not a wilful defaulter.
3. On the pleadings of the parties the following issues were framed by the learned Rent Controller: `(1) Whether the opponent is a wilful defaulter in payment of monthly rent ?
(2) Whether the applicant requires the premises in question for his personal bona fide use?
(3) Whether the application is barred by res judicata ?
(4) What should the decree be ?
4. After recording the evidence and hearing the parties the learned Rent Controller by order passed on 6-1-1976 answered the above issues in favour of the landlord/respondent and directed the appellant to hand over the possession of the shop in question to him within one month of the passing of the order.
5. Against the aforesaid order Civil Appeal No. 39/76 was filed which was heard by the learned 1Vth Additional District Judge, Hyderabad who upheld the findings given by the learned Rent Controller and dismissed the appeal by order passed on 7-12-1976.
6. The appellant has come in appeal in this Court by filing this second appeal under section 15 (4) of the then West Pakistan Urban Rent Restriction Ordinance of 1959.
7. The learned counsel for the appellant Mr. Ghiasuddin, while advancing his arguments on Issue No. 1 submitted that the landlord/respon--dent had not paid the taxes due amounting to Rs.
2,822.86 in respect of the aforesaid property consequently the appellant was served with a notice on 28-121974 (Exh. 22) by the Assessing Authority, Rating Area, Hyderabad, under section 14 of the West Pakistan Urban Immovable Property Tax Act of 1958 whereby he was directed to make all future payments of the entire rent (whether the same has accrued due or not) direct to the Assessing Authority until such arrears were cleared. In the said notice the appellant was further warned that :- "If you do not pay to the undersigned the periodical rent or necessary portion thereof within 30 days of its falling due in compliance with this notice you will be liable under section 15 (1) of the Act to a penalty which may amount to the tax due and the tax and penalty may be recovered from you by attachment and sale of your movable/ immovable property as arrears of land revenue as though you were the owner of the said property."
The learned counsel submitted that pursuant to the above notice and threat contained therein the appellant made the following payments, amounting to Rs. 960, to the Assessing Authority within the time fixed in the challans issued to him by the concerned department :- On 30-12-1974 (Exh. 20)Rs. 160 On 15-3-1975 (Exh: 24)Rs. 320 On 13-5-1975 (Exh. 23)Rs. 320 On 7-6-1975 (Exh. 25) -Rs. 160 Total: Rs.960 It was therefore argued that the appellant, was prevented from making payment of rent to respondent for the months of November, 1974. To March, 1975, the period for which on the ground of alleged non-payment of rent, the respondent had filed the case for ejectment against him.
It was further submitted that when notice dated 28-12-1974 (Exh. 22) was served by the authorities upon the appellant, only rent for the month of November, 1974 had become due as on 1-12-1974 and that unless 60 days expired from that date the landlord would not be entitled to seek the tenant's eviction. It was then argued that in the meantime he was served with the notice dated 28- 12-1974 which not only prevented him from making any payment to the landlord but compelled him to make payment of rent for the month of November, 1974 as well as rent for future months as directed, to the authorities under threat of coercive action against him and his property. The learned counsel argued that Rs. 960, being the amount thus paid bona fide, was sufficient to cover the rent for the period November, 1974 to March, 1975, and that the appellant could not be penalised for alleged non-payment of rent to the respondent.
9. On the other hand Mr. G. H. Abbasi the learned counsel argued that despite service of notice dated 28-12-1974 (Exh. 22) by the Excise and Taxation Department, the appellant was under an obligation to tender rent to the respondent within the meaning of subsection (1) of section 13 of the Ordi--nance of 1959 and that the appellant was still a defaulter within the meaning of section 13(1) of the West Pakistan Urban Rent Restriction Ordinance of 1959.
"Where the tax due from any person on account of any building or land is in arrears, it shall be lawful for the prescribed authority to serve upon any person paying rent in respect of that building or land or any part thereof, to the pr-son from whom arrears are due, a notice stating the amount of such rears of land requiring all future law payment of rent (whether the same have already accrued due or not) by the person paying the rent to be made direct to the prescribed authority until such arrears shall have been duly paid and such notice shall operate to transfer to the prescribed authority the right to recover and give discharge for such rent. If the person paying rent willfully fails or neglects to comply with, the notice aforementioned the prescribed authority may, after giving him an opportunity of being beard, proceed against him as it would have proceeded under the provisions of this Act against the owner of the building or land in respect of which the tax is in arrears.
10. A perusal of the above provisions of section 14 would show that after the service of the notice there under the appellant was prevented from making payment of rent to the respondent, and under threat of coercive proceedings was compelled to pay rent to the Assessing Authority the amount of rent whether accrued due or not until the arrears mentioned in the notice had been duly paid and that the service of notice (Exh. 22) on 28-12-1974 upon the appellant operated to transfer to the prescribed authority the right to recover and give discharge for payment made to him. In the circumstances on behalf of the landlord/appellant it cannot justifiably be contended that in spite of the service of notice and the threat conveyed therein rent ought to have been paid to him. On the' contrary the tenant/appellant, was fully justified to pay the money/rent to the Taxation Department in order to save attachment of his movable/immovable properties, and by which payment, the respondent/landlord has undoubtedly been benefited.
The challans placed on record and noted in para. 7 above, show that the payments were made by the appellant, within the period allowed by the Excise and Taxation Authorities, which fact has not been disputed by the respondent. The argument that there was a default in spite of deposit of rent with the Excise and Taxation Department, therefore is not well founded, as by operation of law on the service of notice upon the appellant, the right to recover rent from him and to give discharge for such payments stood payments were made by the appellant and the authorities have given discharge transferred to the prescribed authority. It stands proved on record that such for the same.
11. As regards Issue No. 2 which relates to the requirement of the by the respondent for his personal and bona fide use, the learned for the appellant produced before this Court on 26-4-1981 certified copies of application under Order XXIII, rule 3, C. P. C. Dated 31-7-1978 filed in Rent Application No. 325/75 before the Civil Judge and Rent Controller, Hyderabad. In terms of the said compromise the possession of Shop No. 3 Noor Market; -Hyderabad was delivered by the tenant, of that shop to the landlord, Muhammad Anwar. It would be noted that this shop and the shop in dispute in this case, are situated in the same building. Since the respondent/landlord had claimed only one shop for his personal use and occupation, according to Mr. Ghiasuddin the learned counsel for the appellant, such- a requirement stood satisfied by delivery of possession of the shop No. 3 to the respondent, both the shops, according to the counsel, being of same class and situated in the same building.
It may be pointed here that on an application filed by learned counsel for appellant far production of certified copies of compromise application and order passed in R. C. No. 323/75, the following consent order was passed :- "(1) This is an application under Order XLI, rule 27, C. P. C. Seeking permission to produce certified copies of certain judgment passed by the Rent Controller subsequent to the filing of this Appeal. Mr. G. H. Abbasi has no objection to the production of these documents at the appellate stage. As these documents viz. Copies of the judgments are necessary to be brought on the record to enable the Court to decide this Appeal, to which the learned counsel for the respondent also has no objection as stated above, it is ordered that these documents be taken on record.
(2) The case is partly heard and is adjourned to I3-5-1981."
Mr. Ghiasuddin Advocate for appellant relied upon the case of Mat. Amina Begum v. Ghulam Dastgir (PLD 1978 SC 220) where the honourable Supreme Court cited with approval the case of Mills v. Green ((1895) 159 U S 165) wherein it was held that the right to take notice of subsequent events is not only a power but may also some time, be the duty of the Court to do so. The following passage from commentary under Rule 7 of Order VII of the Code of Civil Procedure by Mulla was also cited with approval :- "Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made."
12. I would like here to refer to proviso to subsection (3) of section 13 which puts embargo on the entitlement of a landlord to apply again for eviction, where he has obtained possession of premises of same class under the provisions of sub-paragraph (i) or (ii) of section 13 (3). In the circumstances of the present case, the following observations made by Mr. Justice Karimullah Durrani, in the case of Ghulam Farooq v. Fazal Ghani (1980 CLC 1082) become relevant for reaching ultimate decision in this case "By keeping in view the spirit of law, I am constrained to hold that the instant application did not remain maintainable after the landlord succeeded in obtaining possession of the adjacent shop from the tenant under the said parallel proceedings. The bar contained in the above-quoted proviso to a subsequent application, therefore, would still be available to render this application incompetent and having become infructuous."
It may be mentioned that the principle enunciated as above has been cited with approval in the case of Farooq Beg v. Muhammad Arif (PLD 1981 Kar. 67) where the learned Single Judge. Of this Court held "It is pointed out that the underlying object of the above proviso is to restrict ejectment of another tenant by a landlord on the same ground where the landlord has succeeded in an earlier application on that ground against a tenant. It is accordingly contended that where a landlord is seeking ejectment of a tenant from a premises on the ground of personal and bona fide requirement and during pendency of such proceedings succeeds in getting another premises of same class in the same urban area vacated, whether through recourse to proceedings before Controller or otherwise, he should not be allowed to proceed with the pending case in view of the above proviso."
13. Mr. G. H. Abbasi, the learned counsel, for the respondent on the other hand argued that the findings of facts as to the personal requirement given by the two courts below are binding upon this court in second appeal. Subject to conditions laid down by the Superior Courts of our country there is no dispute with this argument, but the point which requires consideration is that the respondent had claimed possession of only one shop for his bona fide and personal requirement in the ejectment application filed by him. In para. 4 of the application be had pleaded as follows :- "The applicant has three brothers, one is abroad, second is clerk and the remaining two including applicant are jobless. The applicant and his brother who too are co-owners of the property need the above shop for the bona fide personal use in order to do business and earn their livelihood."
Thus it would be seen that the requirement of the personal use was limited to only one shop and it has been pointed out by the appellant that subsequent to the filing of the case against the appellant possession of another shop has already been delivered to the respondent as per terms of compromise and order passed on 31-7-1978 in Rent Application No. 325/75. Mr. G. H. Abbasi the learned counsel submitted that he is not prepared to meet this new plea and submitted that this new plea should not be allowed to be raised in the second appeal.
I am however in agreement with Mr. Ghiasuddin the learned 'counsel for the appellant, that in view of the principle laid down by the Honourable Supreme Court in the case of Mst. Amina Begum (PLD 1978 SC.220) and the cases referred above, the subsequent events which have taken place ought to be taken into consideration to arrive at a just decision. This new plea obviously could not have been taken as it is based on events which took place subsequent the filing of the case.
However in order to give opportunity to the respondent to meet this new plea raised by Mr. Ghiasuddin on behalf of the appellant, I frame the following additional Issue "What is the effect of delivery of possession of the shop No. 3 to the respondent/landlord in Rent Application No. 325/75 on his claim for eviction of the appellant from the shop in dispute?"
The case under the circumstances is, remanded to the concerned Rent Controller for giving findings on the above additional issue. After giving opportunity to the parties to lead additional evidence if they so desire the learned Rent Controller shall remit the findings with reasons and evidence to this Court by 31st May, 1982: