SALAHUDDIN PANHW AR, J.---This petition is filed by petitioner (tenant) against order dated 20.11.2018 passed by Additional District Judge III, Karachi South (respondent No.2) in F.R.A. No.225/ 2016 filed by petitioner against order of ejectment dated 30.09.2016 pass ed by Senior Civil Judge Rent Controller concerned (respondent No.3) in Rent. Case No.423/2014 in favour of Dr. Iqbal Hameed (respondent No.1). Concisely , facts of the case are that respondent No.1 (landlord) filed ejectment application in respect of shop No.194, Super Market Building, Cooperative Market, Abdullah Haroon Road, Saddar , Karachi, contending therein that his late father Hameedullah Khan being sole owner , inducted opponent's father Muhammad Naeem Khan (now deceased) as tenant in said shop; that there were litigations between the parties; that opponent's father became dishonest and prepared forged documents alleging that the property was sold out to him and filed Civil Suit No.194 9/1996 (old Suit No.1077/1990) against Hameedullah, for specific performance, which was dismissed by judgment and decree dated 23.12.2006, appeal filed was also dismissed; that legal heirs of deceased tenant committed default in payment of rents since 1980, they have also sublet the property; that applicant is qualified MBBS doctor retired from civil services and needs demised shop for his own personal use to run his own suitable business therein.
2. Heard learned counsel for respective parties, perused the record.
3. At the outset, paragraph-1 1 of the impugned judgment is that:-- "11. In this regard the Court perused the depositions found within the R & Ps brought from the trial court wherein it is admitted by the respondent/ applicant that he being the co-owner of the subject shop, and after the death of his mother , his brother and sister have also given consent in his favour , established his valid title in the property . The said co-ownership entitled has not been challenged in the present appeal. Moreov er it has been admitted by the appellant that he had been depositing rent in the MRC after the death of the father of the applicant/ respondent thus accepting the relationship of the landlord and tenant between them. Admittedly the respondent is retired person who is not currently doing any job. It has also been admitted on the both sides that it is the wife of the respondent/applicant who is doing job at Saudi Arabia and their children are getting education there. Admittedly the wife of the respondent is the sole bread earner of the family , whereas the respondent having no source of income at present. The contention raised by the learned counsel for the applicant that the respondent is of 70 years and has also not elaborated his intended nature of business, in my humble view could not restrict him from claiming the subject property for his personal use.
Whereas the passport and Visas of the respondent/applicant and his family were also produced before trial court, who observed that the V isa of the respondent/ applicant was a non-employment V isa"
4. Learned counsel for the petitioner contends that earlier to this eviction application respondent's father and mother also preferred same nature of applications but both were dismissed, hence, res judicata will apply to the present respondent, who is son and being legal heir he also represents his parents.
5. I do not find any substance in the plea of res judicata, so raised by the learned counsel for the petitioner . The plea of res judicata, I would add, would only be applicable in the rent jurisdiction if it is with reference to same 'cause of action'. Here, it is worth explaining that in rent jurisdiction, the term 'cause of action' is subject to circumstances because it is the circumstances which, in fact, control the 'need' of a man. One, because of his circumstances, needs not be in need of doing any business but changed circumstances may compel him to do a business or even may compel him to part with failed business and to start a new one. This has been the reason because of which, it is by now settled that the selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one. Reference is made to case of Shakeel Ahmed and another v.
Muhammad T ariq Farogh and others 2010 SCMR 1925 . "5. ....It is well-settled principle of law regarding appreciation of evidence that the evidence adduced by the parties is to be read, evaluated and assessed as a whole, and the impact of the evidence of an individual witness is also to be gauged in the same manner . .... Here it may also be observed that the selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one, and therefore no restriction can be imposed upon the landlord/ appellant No.1 on the pretext of restoration of his clearing and forwarding license during the pendency of rent case. "
Thus, I would not hesitate in adding that failure of a landlord in earlier evictio n proceedings would not be of sufficient to bring the plea of res judjcata if he, otherwise, proves his 'personal bona fide need' with reference to changed circumstances i.e. 'new cause of action' .
6. In the instant matter , such plea is even misconceived for simple reason that referred earlier proceedings were launched by father of the respondent/ applicant who, undeniably , is dead thereby making his legal heirs, including the respondent/applicant as one of the co-owner/co-sharer and other legal heirs have given no objections to the present landlord though legally , in the rent jurisdiction every co-owner has a right to agitate the plea of personal bona fide need irrespective of fact that tenancy , created by other co-sharer because legally every co-sharer has his/her own circumstances hence legally shall have a right to establish the plea of personal bona fide need in respect of such premises. Reference may be made to Imran Qadir v. Roqiya Sultana and 7 others 2017 CLC Note 80 wherein it is observed as:- "Any of the co-sharers may file a rent case against the tenant irrespective of the fact that some other co-sharers had inducted the tenant in the tenement. (Abdul Ghani v. Abrar Hussain 1999 SCMR 348 and Muhammad Hanif and others v . Muhammad Jameel and 5 others 2002 SCMR 429 )." therefore, instant proceedings, initiated by the respondent/applicant, is with reference to an independent and fresh cause of action, who is admittedly landlord so was rightly discussed by the learned appellate Court in its impugned judgment. However , learned counsel for the petitioner is satisfied if instant petition is disposed of with directions that he may be allowed to evict the demised premises within six months with rider that in case respondent fails to establish his business within four months, he will return the same. Accordingly , instant petition is disposed of along with listed applications with directions to the petitioner that he shall handover the possession of demised premises within six months from/today . In case of failure, the petitioner/tenant shall be got evicted from demised premises by approaching the Rent Controller without any notice or further time. However , in case, respondent fails to establish his business, he will return the demised premises to the tenant with fine of Rs.50,000.
7. With regard to arrears along with utility bills, if any, executing court would be competent to decide the same.
This, however , shall not prejudice to eviction of petitioner within stipulated period, as undertaken as well his right of seeking restoration of possession, if respondent fails to establish his business within stipulated period.