MIAN BURHANUDDIN KHAN, J.--By this petition leave is sought to appeal against the judgment and order of a learned Single Judge of the Lahore High Court, Rawalpindi Bench dated 24-11-1985 passed in F.A.0. No. 17 of 1985 on the grounds that the orders of the Rent Controller dated 29-10-1983 and of the Additional District Judge dated 11-2-1984 in the previous proceedings are not a bar for the present proceedings because the said orders are illegal being based on factums probantie.
The bar on the basis of a finding on a factum probanda operates as res judicate. The principle of allegata et probete applies only to factum probanda and, it is not necessary to allege evidential effects in the pleadings; whether the statement of the petitioner/ landlord read with section 17, subsection (6) of the Cantonment Rent Restriction Act, 1963 is not sufficient to prove the bona fide, good faith and personal need of the landlord and in such cases nothing more is required as observed by the learned High Court Judge in the impugned judgment.
2. According to the petitioner/landlord, he is owner of property No.53/A, Haider Road, Rawalpindi and the respondent is tenant of a part of the said property. The petitioner filed an application for ejectment against the respondent on the basis of re-construction. The proceedings ended into compromise on 7-4-1980 and the application for ejectment was withdrawn on the understanding that the respondent tenant will pay enhanced rent at the rate of 16% and that the petitioner/ landlord will not enhance the rent till 30-4-1983, and that the respondent /tenant will vacate the premises when the petitioner/ landlord required the same for re-construction provided an alternative accommodation for the tenant /respondent is arranged by petitioner/ landlord at the rear of the same building.
3. On 29-6-1982 the petitioner/ Landlord filed an application for ejectment on the basis of personal need which was dismissed by the learned Rent Controller per order dated 29-10-1983 and this order was upheld by the learned Additional District Judge vide his judgment dated 11-2-1984. The petitioner/ landlord then filed a writ in the Lahore High Court, Rawalpindi Bench which was dismissed as withdrawn with observation.
4.On 25-7-1984 the petitioner/ landlord filed the present application for ejectment which was accepted by the learned Rent Controller vide his order dated 26-5-1985. The respondent/ tenant filed an appeal in the Lahore High Court and a learned Single Judge, vide the impugned judgment dated 24-11-1985, reversed the finding of the learned Rent Controller on all the issues holding that the orders of the Rent Controller and the Additional District Judge in the previous proceedings are a bar to the present proceedings under section 23 of the Cantonment Rent Restriction Act, 1963.
Petitioner/landlord also made a statement on oath in the Court of the Rent Controller that he is ready upon securing possession of the property in dispute, to surrender his licence to practice as an Advocate, being physically incapacitated, and, secondly, that in case he did not start the business as stated in the application, the respondent /tenant will have a right to take back the possession of the shop in dispute.
5. We have considered the questions raised by the petitioner and grant leave to consider the question whether the shop in dispute is required by the petitioner bona fide and in good faith and whether he is ready to surrender his licence to practice as an Advocate, and is really keen to start business in the shop in question, and if so, whether he is entitled to the relief---s sought before the Rent Controller and the learned High Court Judge has not given due consideration to the bona fide requirement of the petitioner/ landlord and there has been incorrect interpretation of section 23 of the Cantonment Rent Restriction Act, 1963. Security rupees two thousand and five hundred. Appeal to be heard on the present record with liberty to the parties to file additional documents, if so desired.