An application under section 17(4)(b) of the Cantonment Rent Restriction Act, XI of 1963, filed by the respondent-landlord for a direction to the appellant to put him in possession of the shop in dispute on the ground of his persona) need, was resisted by the tenant---appellant on the plea also that it was barred under section 23 of the Act in so far as a petition earlier filed by the appellant on the same ground had been dismissed and this fresh petition raising substantially the same issue was liable to be' summarily rejected. In this behalf, explanation of the respondent-landlord is that since in his earlier petition, he had not pleaded either that there was no other property in his possession suitable for his needs or even that his disability of being hard of hearing had impelled him to the conclusion that he could not establish in the legal profession, therefore, his petition was dismissed by the Controller and appeal filed by him having also failed, he instituted Writ Petition No. 114 of 1984 which was withdrawn by him for filing a fresh petition by urging the aforesaid two pleas, which had been omitted to be taken in the earlier petition.
2. Pleadings of the parties gave rise to only two issues; first, relating to the bar under section 23 of the Act and the second, with regard to the respondent's need in good faith of the shop for his personal use. Learned Controller decided both the issues in favour of the landlord-respondent. He concluded that since he had been allowed by the High Court to file the present petition, therefore, it is not barred under the law. Under issue No.2, although he noticed the fact that the respondent had "not provided any scientific data of clientage/ income over the last few years which could show clearly the relationship of his physical disability and his alleged failure in the legal profession", yet, he was impressed by the undertaking given by the respondent---landlord to surrender his licence to practice as an Advocate upon his taking possession of the shop in dispute and also by the reason that if he did not start his own business, as had been pleaded by him, the tenant would have a right to take back the possession of the shop and, thereupon decided issue No.2 in favour of the respondent-landlord to order eviction of the tenant who has filed the present appeal.
3. Learned counsel has assailed the findings of the Controller on both the issues. Section 23 of Act XI of 1963 provides:---- "The Controller shall summarily reject any application under subsection (2) or under subsection (4) of section 17, which raises substantially the same issues as have been finally decided in a former proceeding under this Act."
4. Before proceeding further, it will be convenient to reproduce the order dated 10-7-1984 passed by my learned brother Akhtar Hassan, J., in Writ Petition No. 114 of 1984, which is:-----
(1) "Learned counsel states that he would like to bring a fresh application for ejectment on a new ground that the petitioner being hard of hearing has not been able to establish himself as a lawyer in the legal profession and that he needed the shop in dispute for personal need to run some business. In the ejectment petition out of which the present writ arises, he had pleaded that he required the shop for personal use without explaining his physical disability and inability to establish in the legal profession. Obviously if these two grounds could not be raised so far in the present petition, there may be justification to raise them because both relate to questions of fact. It is, of course, subject to all just exceptions.
(2) With these observations the writ petition is dismissed as withdrawn."
5. Failure of a party to raise necessary pleas should result in his being debarred from raising them later and cannot, on any discoverable principle, give rise to a right in him to maintain fresh proceedings because otherwise there will come to be placed a premium on his own lapses.
Actually, such is not the contemplation of the above order passed in writ proceedings wherein neither had the earlier ejectment petition been withdrawn nor had the respondent been granted the liberty to file a fresh petition on the same plea and on the contrary, the writ petition itself was dismissed as having been withdrawn, therefore, the judgment passed in the earlier petition would continue to hold the field. Thereby, issue about the landlord's requirement of the shop for his personal use was decided against him on merits and his failure to plead the abovementioned two factors was mentioned as one of the reasons to disbelieve his evidence. Former application was not dismissed on any technical ground, therefore, the bar embodied in section 23 of the Act was squarely attracted to the present petition and the Controller's finding under issue No.l is not sustainable and it is accordingly reversed.
6. Under issue No.2, which relates to the question whether the landlord needs the premises for his bona fide personal use, learned Controller has pronounced with regard to his intention, as being bona fide on account of two factors, firstly, that he has expressed his readiness, upon securing possession of the shop in dispute, to surrender his licence to practice as an Advocate and, secondly, that in case he did not start the business as pleaded, the tenant will have a right to take back the possession of the shop. Those factors may have sufficed for a conclusion under subsection (5) of section 17 of the Act that claim of the landlord to be put in possession is bona fide but, by themselves, they could neither absolve the landlord from his duty to establish his case within the contemplation of subsection (4) ibid nor could, without anything more, establish that the shop was 'needed' by him in 'good faith' for his personal use. Although the term 'good faith' does not convey anything materially different from 'bona fide', yet the context in which they are used in the two subsections, their implications are different. It can well be that a landlord may in good faith need a premises for his personal use, yet, his request for being put in possession thereof may not be bona fide. Therefore, the Controller's conclusion in this case, that "the intentions of the petitioner are bona fide", however, well-founded it may be, could not have led him to the conclusion also that the landlord 'in good faith needs' the shop for his personal use. His finding with regard to the intention of the landlord betrays his incorrect approach to the case. Although he particularly noticed the absence of "scientific data of clientage/income", yet, he felt satisfied with regard to his bona fides on the basis of the above-mentioned two factors but has not at all attended to the question whether the landlord 'needs' the shop in dispute. In Sh. Khushi Muhammad v. Kh.
Muhammad Rashid Wain 1968 SCMR 1158, decided under the Urban Rent Restriction Ordinance, 1959, connotation of the word 'require' came up for consideration and, after citing with approval the case of Jagadish Chandara Sarkar and others v. Abdul Aziz reported as 7 Dacca -Law Reports 314, it was concluded as under:---- "It can, therefore, be said that where the landlord wants the house for his own use and occupation, it will never be considered sufficient that he should 'desire' to have the premises back or even that he should 'require' them, but it has been further insisted that the requirement must be 'bona fide requirement' for the purposes recognized by the Act."
Thus, it is clear that a mere 'desire' cannot be considered a 'need' because whereas the word 'desire' means a strong wish; a longing or craving for something; the word 'need', according to its dictionary meaning, is 'want of something without which one cannot well do' and element of compulsion is embeded therein. In Shorter Oxford Dictionary, it has been described also as 'a necessary condition; a demand; a condition marked by the lack or want of some necessary thing or requiring some extraneous aid or addition'.
In the present case, in finding the intention of the landlord to be bona fide, learned Controller has not only touched the real question,namely, whether he needs the shop in dispute but he has also erred in disposing of the issue with the mere finding that his intention is bona fide. 'Intention' is only a state of mind and it has been described in the aforesaid Dictionary as, "a conception formed by directing the mind to some object". Statement of the respondent-landlord about his inability to establish himself in the legal profession due to his disability may have only signified his desire to take to business but, without, anything more, it could not have assumed the character of a 'need' which he had to prove in order to succeed in issue No. 2. Controller's finding thereunder is also set aside accordingly.
7. In view of my finding under issue No.l that the petition for ejectment is itself incompetent, a detailed consideration of the merits of plea covered by issue No.2 is not called for.
8. As a result, this appeal is allowed and setting aside the order dated 26-5-1985 passed by the Controller, Rawalpindi Cantonment, respondent's application is ordered to be dismissed. Parties are, however, left to bear their own costs.