AHMAD ALI, J.---Aggrieved of the judgment dated 29.03.2018 of the learned Additional District Judge-I, Peshawar, whereby on acceptance of the rent appeals of respondents Nos. 1, 3 to 5 the judgment dated 06.09.2017 of the learned Rent Controller-H, Peshawar, was set aside and thereby the rent petition filed by petitioner was dismissed, the petitioner has filed the instant writ petition.
2. Brief and essential facts leading to the instant petition are that the petitioner had filed a petition under section 13 of the Urban Rent Restriction Ordinance, 1959, for ejectment of respondents Nos.1 to 5 from the shop, described in the head note of the petition, on account of personal needs. After processing the rent petition in accordance with law, the learned Rent Controller-II Peshawar allowed the eviction petition vide judgment dated 06.09.2017 and thereby directed respondents . to handover the possession of suit shop to petitioner (landlord) within thirty days. Discontented with the judgment of Rent Controller, respondents Nos.1 and 3 to 5 filed their separate rent appeals which were accepted by the learned Additional District Judge-I Peshawar vide judgment dated 29.03.2018 and consequently, the judgment of Rent Controller was set set-aside. Now aggrieved of the judgment dated 29.03.2018 of the learned ADJ-I Peshawar, present petition has been filed.
3. Learned counsel for the petitioner argued that the petitioner is an unemployed person having no other source of income and thus, he wants to start his own business in the suit shop. He maintained that Section 14 of the Urban Rent Restrict Ordinance, 1959, has wrongly been applied to the case of petitioner, whereas, the doctrine of res judicata too cannot be attracted in the present circumstances of the case. He kept on to say that status of petitioner as a landlord is undisputed one, default in payment of monthly rent by respondents is there which proves them to be wilful defaulters, and it is not necessary that the landlord has to explain or describe the nature of business to prove the personal bona fide need. Learned appellate court misconceived the same and erred in dismissing the eviction petition of petitioner.
4. On their turn, learned counsel appearing on behalf of respondents Nos.1, and 3 to 5, unanimously supported the impugned judgment on the grounds that the suit shop was obtained on the basis of pagri and respondents cannot be ejected from same until they are paying the rent regularly. It was further argued that the shop in question was previously owned by the mother of petitioner and her eviction petition on the ground of personal need was dismissed by the rent controller and her rent appeal too was dismissed. Now petitioner, after getting transfer the suit shop from his mother, has filed present eviction petition_ which is hit by the doctrine of res judicata and section 14 of the Urban Rent Restrict Ordinance, 1959, is also getting in the way of present eviction petition of petitioner.
5. Arguments heard and record gone through.
6. Perusal of record coupled with the arguments of learned counsel for parties indicates that there are following moot points of the case. a. Res judicata b. Personal bona fide need c. Default in payment of rent d. Payment of pagri
7. The foremost crucial point in this case is to determine the applicability of the doctrine of res judicata or otherwise. Since there are divergent and conflicting findings of the Courts below on this point, as such, need emerges to vet entire material on record so as to reach a just and proper conclusion. In rent matters, the question of personal need and default in payment of rent can never be static, and as such, rejection of an earlier application by former landlord do not always act as bar under Section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Constructive res judicata would only apply when on identical reasons and in identical circumstances, after an earlier unsuccessful attempt, the ejectment of tenant is subsequently, once again sought. Whereas, in rent matters, circumstances cannot remain static and unchanged for an indefinite period and therefore, a fresh eviction petition can be filed subject to the availability of changed situation.
Reliance is placed on the cases titled, "Muhammad Shafi v. Haji Shaista Khan" reported as 2002 SCMR 480 and "Malik Muhammad Shafi v. Karim ud Din and others" 1985 CLC 2483 (Lahore).
8. No time limit can be fixed for changed circumstances and accordingly for personal requirement. All that is required is that the Court must make sure that the requirement was genuine. There are fresh and changed circumstances over and above the default in payment of rent during the pendency of the present case, which provides a fresh cause of action to the petitioner, reliance can be placed on case titled "Muhammad Sharif v.
Additional District Judge, Lahore and others" 1991 SCMR 1917. It is also noted that during the pendency of eviction petition, respondents had filed applications for its rejection under Section 14 of the ibid Ordinance, 1959, on the basis of res judicata. However, said application of respondents was dismissed by the learned Rent Controller vide order dated 10.07.2012 which was not further assailed before any higher forum thus, the same has attained finality, thus, the same objection cannot be raised any further. The learned appellate court below has erred in comprehending this legal aspect of the case.
9. Now coming to the second question of personal bona fide need.
Petitioner in his eviction petition has asserted that .he is a jobless person and therefore he needs the shop in question to start his own business to feed his family. The petitioner/landlord in his cross-examination as PW-1 has stated: {{URDU TEXT}}
10. This shows the personal bona fide need of the landlord and even he is ready to give surety to hand over the shop to respondent if he failed to establish his own business in the suit shop. Even otherwise, where landlord's statement on Oath being consistent with the case pleaded by him and same has not been seriously challenged must be given weight, reliance could be placed on case titled "Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui"
2000 SCMR 1613. Respondent No.4, Ismail Said, in the closing lines of his cross-examination as RW-1 has stated: {{URDU TEXT}}
11. The claim of the petitioner had not been shaken in cross-examination. His need could not be defeated by adversely interpreting evidence to reach another conclusion as did by the learned appellate Court ignoring the material facts while deciding the point of personal need; discussed above. This Court in the case titled "Mst.
Nayyar Naheed v. Malik Zaheer Ullah and 2 others" reported in 2011 YLR 1535 has held as under: "Statement of landlady on oath, it was consistent with the application for ejectment and was not shaken in cross-examination, was sufficient to establish her bona fide requirement--If after vacation of the shop by the tenant, landlady would fail to start her own business, rights of the tenant were very much protected under 5.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959; and he could be put into possession".
12. If after vacation of the suit premises by the respondent, the petitioner fails to start his own business, then also the rights of respondents are very much protected under section 13(4) of the Ordinance, 1959, which is reproduced as under: - "13. EVICTION OF TENANT:
(4) Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under sub-paragraph (1) or sub-paragraph (ii) of paragraph (a) of subsection (3) does not himself or where the building has been got vacated for the occupation of any of his children such child does not occupy it within one month of the date of obtaining possession, [or having been so occupied is re-let within two months of the said date to any person other than the original tenant,] the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly".
13. The above referred provisions provide a mechanism that if a landlord obtain possession of building, premises vacated through Court on the ground of personal need or any of his child and has not occupied as such within one month or further let within two months the origin/ tenant has the remedy to apply to the Rent Controller, who in term shall direct for the restoration of possession. In the light of this provision of 'law, the sole statement of petitioner landlord is sufficient for his bona fide personal need as he has to use premises for the purpose and not otherwise under the order of the Court. He has no option to do otherwise because in such eventuality he would lose possession of the shop simply on the application of tenant to be moved before Controller. Even otherwise there is no rebuttal on the file to the evidence produced by the petitioner, the learned Appellate Court has bounded down the petitioner/landlord the wish and whim of the tenant which is against the mandate of law, It is prerogative of the owner/ landlord to choose the business of his choice, this option cannot be subjected to the wish and whim of the tenant. Mere lack of experience and not disclosing the nature of business intended to be established would not disentitle the landlord from claiming ejectment of a tenant.
Landlord, had prerogative to choose any premises for his business irrespective of its suitability.
14. Although the petitioner in his eviction petition has not raised the plea of default in payment of rent and in his evidence too he has not contended any such plea, nevertheless, there is a report dated 04.04.2018 of Civil Nazir of Senior Civil Judge, Peshawar, available at Annexure-F which shows that respondents/ tenants deposited monthly rent in the court for the months of February, July, August, September and October of 2016 and during the year 2017 rent for the months of July, August, September, October and November was deposited. This clearly shows that respondents failed to deposit rent for the remaining months of 2016 and 2017 and thereby respondents failed to honour the order of rent controller as to deposit of rent before 15th of each month in the court. Failure in the deposit of monthly lent per direction of the court exposes the tenant to face penal provision of section 13(6) which provides that if a tenant makes default in compliance of court order for deposit of the tentative rent then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. Respondents are also held liable for eviction from suit shop under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959,
15. While adverting to the final moot point of pagri, it is observed that respondents/tenants in this written reply have alleged payment of pagri to the landlord but neither claimed for the return of same nor any documentary or any other direct evidence to this effect has been produced. Even otherwise, the plea of payment of pagri by tenant to landlord or his predecessor-in-interest would not make the tenancy in perpetuity when it has not been created by a registered instrument. And where the amount of pagri was treated as mutual arrangement between the parties, amount of pagri having no legal sanctity behind it could not be adjusted against rent which had to be paid in accordance with the terms and conditions of the tenancy agreement. This would not foreclose tenant's right and remedy available to him for recovery of pagri from the person who was liable to return if permissible under the law. Reliance is placed on the cases of "Mirza Book Agency and others v. Additional District Judge Lahore and others" (2013 SCMR 1520; "Mrs. Shamim Bano through Attorney v. Mrs. Nazir Fatima" (2001 SCMR 1552) and the case of "Muhammad Saud v. Muhammad Asghar" 2008 MLD 236 (Lahore).
16. For the reasons, recorded above, petition in hand is allowed, the impugned order dated 29.03.2018 passed by the learned Addl. District Judge-I, Peshawar is hereby set aside and eviction of the respondents Nos. 1 to 5 from the demised shop on the ground of personal need as directed by the learned trial Court is restored and maintained. Respondents are further liable to eviction on account of default in payment of monthly rent in compliance of the court order within the purview of Section 13(6) of the Ordinance, 1959. However, the tenants are allowed one-month time to vacate the demised premises and they are bound to make payment of the rent for defaulted period/months during which no rent was deposited/paid.