' This appeal and F. R. A. No, 1142 of 1984, both under section 21 of the Sind Rented Premises Ordinance, 1979, are from a common order dated 7-10-1984, passed by VI Senior Civil Judge and Controller, Karachi, in Rent Case No, 3923 of 1975, filed by Mst. Amina Khatoon, the respondent against Mushtaq Ali Jummani, appellant in Appeal No, 1033 of 1984 (hereinafter for convenience sake called appellant No, 1), and Mst. Riaz Begum, appellant in Appeal No, 1142 of 1984 (hereinafter for convenience sake called appellant No, 2), on the grounds of default in payment of rent, subletting of a part of premises by appellant 1 to appellant 2, and personal requirement of the premises. Since, both the appeals arise out of common Order I, propose to dispose of the same by this judgment.
2. The other relevant facts are that the respondent purchased House No, 11-J/15/3, Nazimabad, Kapchi, from S. A. Mannan Siddiqui on 15-3-1975, which consists of two floors, ground and first. A portion of the first floor is occupied by appellant 1 and the other portion by appellant 2. , The ground floor at the time of purchase was occupied by some other tenants.
' On 7-11-1975, the respondent filed an application under section 13(2) (i) (ii) and (3) of the Sind Urban Rent Restriction Ordinance, 1959, against appellants 1 and 2 for their eviction on the three grounds mentioned above.
4. Appellants 1 and 2 in their separate written statements denied the claim of the respondent that appellant I had sublet a portion of the premises to appellant 2. Both the appellants claimed that they are tenants in respect of separate portions of the first floor of the house. They also denied that they defaulted in payment of the rent and that the respondent requires the premises in dispute for beer own bona fide personal use.
5. On the pleadings of the parties the learned Controller framed the following preliminary issue :- "Whether opponent 2 (appellant 2) is tenant of right portion of the premises, if so its effect ?"
6. The Controller decided the preliminary issue in the affirmative by the order, dated 25-3-1978.
Thereafter, on 25-1-1979, the Controller framed the following issues : - "1. Whether the opponent No, 1 has sublet the right portion of 1st floor to the opponent No, 2 without prior permission or consent of the applicant ?
(2) Whether the opponents are defaulters in payment of rent ? -
(3) Whether the the applicant requires the premises in dispute for her bona fide personal use ?
(4) What should the order be ?"
7. After recording evidence the Controller decided all the three issues in favour of the respondent by the common order now impugned in these-appeals and ordered, eviction of appellants I and 2 from the premises occupied by them.
8. On behalf of the respondent evidence& her husband and attorney namely, Muhammad Anwar and S. A. Mannan, previous owner of the property was recorded. Appellants 1 and 2 filed separate affidavit as in the meanwhile the Sind Rented Premises Ordinance, 1979, was enforced are they were cross-examined on behalf of the respondent by her counsel. It may further be stated that before deciding the preliminary issue the Controller recorded the evidence of Mr. Abdul Khalique Niazi, Advocate,. Who was summoned as a witness by appellant 2. Mr. Abdul Khalique Niazi, Advocate had also filed his affidavit after decision of the preliminary issue but since he was not produced for cross-examination his affidavit was Lot taken into consideration while passing the order impugned in these appeals.
9. I have heard Mr. Syed Ahmed Faruqui, learned counsel for appellant 1, Mr. Muhammad Anwar Tariq, learned counsel for appellant 2, and Mr. S. Azizul Hassan, learned counsel for respondent and they have also taken me tbrongh the evidence produced by the parties.
10. It is submitted by Mr. Faruqui and Mr.. Tariq that after giving the finding on preliminary issue that appellant 2 was tenatli of the right portion of the premises the successor Controller erred in again framing and deciding issue of subletting which is issue No,
2. They further submitted that in view of the finding on preliminary issue there was no default in the payment of the rent as both appellants 1 and 2 were separately depositing rent in the Court though the allegation of default was made on the basis that the premises was one and although the rent was Rs, 230 per month, appellant 1 was depositing in Court Rs, 115 per month as rent and as such there was no default.
11. As regards the decision on issue of bona fide requirement of the respondent that the learned counsel .For appellants 1 and 2 submitted that during the pendency of eviction application the respondent got vacated the ground floor premises- and she passed on the possession and did not occupy the same herself and therefore, ii was further submitted that her need was not bona fide. In support of -their submissions the learned counsel for both the appellants relied on Ghulam Farooq v. Fazal Ghani (1), Mirza Farooq Beg v. Muhammad Arif(2) and Mst. Farukh Nisa v. Safdar Ahmed and 6 others (3).
12. I would consider these submissions in the same.Order in which they have been made. Now, taking up the issue of subletting it was, submitted by Mr. S. Azizul Hassan that preliminary issue was not decided, as such but only a preliminary finding was given and in the impugned order the Controller has. Given the final finding. This stand of the learned counsel for the respondent to say the least is not -correct for the preliminary issue was decided after recording and the case pending before him was concerned evidence and the finding then so far as the Controller, was concerlied had become final. A perusal of the order, dated 25-3-1978, shows that the Controller conclusively decided the issue. I am fortified in my view by a decision of D. B. Of Allahbad High Court in Pandit Kalyan Das v. Babu Kashi Prasad and others (4), wherein it has been held that once the trial Court has delivered its judgment upon an issue and has signed its judgment then as far the trial Court is concerned that issue cannot be re-agitated by it at a later stage because if the trial Court is permitted at a later stage to reconsider findings recorded on issues decided earlier, there would really be no end to litigation. They further observed that there must be some finality to decision. I may herein below quote the relevant passage :- "In short, this Rule ptovides that a case may in certain circumstances
(1) 1980 CLC 1082 (2) L D 1981 Kau, 67
(3) PLD 1985 Kar. 639 (4) AIR 1938 All. 113 be decided piecemeal. The learned trial Judge may first decide one issue, and if the decision of that issue does not finally disppse of the case, he may then go on to decide the other issues in the case. As the Code provides for the decision of a single issue, it must, in our view be implied, that as far as the trial Court is concerned that issue is decided once and for all. If a Court having decided a preliminary issue is entitled to re-consider its decision it might go on altering and altering its decision any number of times at the invitation of the parties. In our judgment, once the Court has delivered its judgment upon that issue and has signed its judgment, then as far as the trial Court is concerned, that issue cannot be re-agitated. If the trial Court was permitted at a later stage to re- consider findings recorded on issues decided earlier, there would really be no end to litigation.
There must be some finality to decisions and in our view having regard to the provisions of the Code which expressly permit the decision of preliminary points and issues, we must hold that once such issues have been, decided they have been decided once and for all as far as the trial Court is concerned and that such cannot be re-considered by that Court."
13. The learned Judges in support relied on two decisions of the Privy Council in Hook v.
Administrator-General of Bengal (1) and Maharajadhira) Sir Rame,hwar Singh Bahadur v. Hitendra Singh (2). In the first case their Lordships of the Privy Council held that when a question at issue between the parties to a suit is' heard and finally decided, the judgment given on it is binding on the parties at all subsequent stages of the suit. They reasoned that its binding force depends not upon the Civil Procedure Code, section 11, but upon general principles of law, if it were not binding there would be no end to litigation.
14. The finding on the issue decided by the order dated 25.3-1978, has not been chalenged by filing any cross-appeal or objection or even otherwise. I therefore, hold that the Controller was not justified in reopening the issue and decide it afresh.
15. This brings me to the second submission that there was no default. In this regard it was submitted by Mr. S. Azizul Hassan that appellant 1 and 2 had not paid the rent for the months of January, May, June, and September to November, 1978. But no such specific plea was taken either in the rent application nor in the evidence led before the Controlle as Mr. S. Azizul Hassan has not been able to point out any such evidenc and in view of the finding of the Controller by the ordei, dated 25-3-1978, that appellant 2 was tenant in 'respect of separate premises on a rent o Rs, 115 it cannot be said that appellants 1 and 2 had committed any default at all. Therefore, this issue was also decided wrongly by the Controller.
16. Now, the third point remains to be considered. It is I evidence that respondent is residing alongwith her family member including her husband, her mother, 5 children and 2 infants, in a rente premises and paying rent of Rs, 500 per month to Raft' Ahmed. In m view this is a sufficient ground for justifying the order of eviction of appellants 1 and 2 for every owner of a house normally has a natural desire to live in his own house and. If he does not live in it is must be du to some cogent, reasons such as payment of debt incurred in building o purchasing the house. In the case of Muhammad Han; v. Mst. Sara (3
(1) A R 1921 P C 11 (2) AIR 1924 P C 202 (3) PLD 1982 Kar. 182 ' I had taken the view that the landlord's desire to live in his own house is natural moreso when he as in this case, is to be monetarily benefited therefrom. In the present case the respondent is receiving Rs, 230 per month as rent from appellants 1 and 2 but she is paying Rs, 500 per month as rent of the premises in which she is living as tenant. In my opinion this alone is sufficient to prove her bona fide requirement of the premises for personal use and occupation. It was however, argued by Mr. Faruqui and Mr. Tariq that during the pendency of the eviction proceedings two ground floor premises, which have equal accommodation as occupied by appellants 1 and 2, were got vacated by the respondent and therefore, the requirement of the premises in occupation of appellants 1 and 2 is not bona fide. The husband of the landlady namely, Muhammad Anwar in his deposition stated that they had migrated from East Pakistan in the yeat 1964, in connection with his service and other members of his family came in 1974 after fall of Dacca, 'and they were living in House No, 2/52, Block 11, P. E. C. H. S., Karachi as tenants. His sister, mother, and brother-in-laws and their children came from East Pakistan and they being dependants were accommodated on the ground floor premises which were got vacated. He in the cross-examination however, denied suggestion that he had given the two premises on rent. But except bare suggestion no proof was offered that the premises on the ground floor of the house wen let out by the respondent to any other person. In the circumstances of the case I approve the view of the Controller that the requirement of the respondent is bona fide and reasonable. Mr. S. Azizul Hassan relied on a decisio of the Supreme Court in Abdul Salam Akhtar v. Dr. Najam Parvez (1), wherein the following observations made by Hamoodur Rahman, C. J., are helpful to the case of the respondent :- . "We are unable to agree for the personal needs of the landlord would include the need of those dependent upon him. In the present case even the personal need of the landlord is there in addition to the need of the brother. Hence it cannot be said that the eviction is required only for the need of the brother, who is not covered by the definition of 'own occupation' or who did not 'come within the category of dependents.
' The next contention advanced on behalf of the petitioner is that since the landlord was living in rented premises, he was in occupation of another residential building suitable for his needs in the same urban area and, therefore, he was not entitled to evict the petitioner. The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view, extend to cover rented premises, for, otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation, which the landlord is occupying at the time, must be shown to be his own and not merely rented premises.
' The law in the United Kingdom is somewhat different. There the case of a person who purchases a premises after the coming into force of the special law has dealt with separately. In the law prevailing in this country, there is no such separate treatment and, therefore, it is reasonable to assume that the legislature did not
(1) 1976 SCMR 52 intend to disqualify a person occupying a rented premises from getting his own premises vacated for his own use and occupation."
17. Now, remains the cases on which reliance was placed by the learned counsel for appellants 1 and 2 are that, Ghulam Farooqs case wherein the landlord after getting one shop vacated for his personal use was not allowed to disturb the possession of another tenant on the same ground. But the facts of the case are different from the fact of the present case for if the respondent after getting the ground floor premises vacated during the pendency of the eviction application and accommodating his near relations who came from East Pakistan still continues to reside in a rented premises that would not be a ground for refusing his application for eviction of appellants 1 and 2. In the other case of Mirza Farooq Beg v. Muhammad Arif (supra) the landlord had succeeded in getting the possession of another premises (shop) of the same class and description in the same urban area during the pendency of the eviction proceeding and on these facts it was contended in that case that the requirement of the premises by the landlord was not bona fide and dealing with the contention it was observed by Saeeduzzaman Siddiqui, J., at page 445 of the report as follows :- "While I am in respectful agreement with the conclusion of the learned Single Judge in the above case that if during the pendency of the application for ejectment on the ground of personal and bona fide requirement, the landlord succeeds in getting possession of another premises of the same class and description in the same urban area the 2nd proviso to subsection (3) of section 13 of the Ordinance will come into play with utmost respect. I am unable to subscribe. To the view expressed further by the learned Judge, that in such an event the pending application under section 13(3) of the Ordinance also becomes non-maintainable and infructuous. In my humble view. The effect of the 2nd proviso to subsection (3) of section 13 of the Ordinance in such a case on the pending application of a landlord on the ground of personal and bona fide requirement shall have to further satisfy the Controller, before succeeding in the pending case, that the premises so got vacated was not suitable to his needs. In my view the embargo on the right of a landlord to move a second application on the same ground and succeeding on it Considering the contention of the learned counsel for appellant in the above perspective, I am of the view, that the ejectment application on the ground of personal and bona fide requirements filed by respondent did not become non-maintainable or infructuous as a result of his succeeding in getting two shops namely shops Nos. 8 and 9 in the same building vacated during the pendency of . The ejectment case against the appellant This, however, could not mean, that the respondent was relieved of the burden of proving his bona fide requirement in the case or satisfying the Rent Controller that the premises, so got vacated by him were not suitable for his needs. I will accordingly now consider, if the respondent succeeded in discharging this burden before the Rent Controller."
' I may mention that in this case it was contended that the application was hit by the second proviso to subsection (3) of section 13 of the West Pakistan Urban, Rent Restriction Ordinance, 1959.
In the present case the respondent has satisfactorily explained thei reasons for getting _the premises vacated for the accommodating her close relations. In the peculiar circumstances of the present case it, therefore,' cannot be said that the requirement of the respondent has become!
Redundant or mala fide.
18. Taking up the last case cited by the learned counsel for appellant 2 namely, Mst. Farukh Nisa v.
Safdar Ahmed and 6 others (supra) it was observed by my learned brother Haider Ali Pirzada, J., that a mere ipse dixit of the landlady that she requires the premises in good faith for the occupation of her daughter is not enough. According to the learned Judge the landlady should have placed all the necessary details which are required for granting relief. This is not the case in the present case. It is an admitted fact that respondent is residing in a rented premises.
' Then reference was made to the observation that "the appellant's requirement is not for her daughter but for her grand-daughter and on the basis of these observations it was argued that in the present case the requirement is not even for grand-children but for the in-laws. But the .Argument loses sight of the fact that the respondent is not requiring the premises for the in-laws but she is requiring the premises for herself. Her children and for her family as she is still residing in a rented premises. Therefore, this case too does not help appellants 1 and 2.
' I, therefore, find no substance in the last submission too.
19. In the result appellants 1 and 2 cannot succeed in these appeals. Accordingly, I would dismiss them but with no order as to costs and allow appellants 1 and 2, in the circumstances of the case' one year to vacate the premises and hand over its peaceful possession to the respondent, provided that appellants 1 and 2 shall continue to deposit the rent as ordered by the Controller. In case they fail to deposit the rent regularly as ordered by the Controller the notwithstanding the time allowed hereby they will be liable to be evicted forthwith. On the expiry of one year, if appellants 1 and 2 fail to deliver vacant possession to the respondent, he will be entitled to apply for execution of the order without notice to them.