1. This case has got a very long and chequered history. Ghulam Sarwar, Muhammad Siddique, Muhammad Umer and Usman Ali sons of late Ghulam Ali filed an eviction application against the appellant, before the Controller/Senior Civil Judge, Quetta. After decision of the Controller, the matter was proceeded further and on 27-3-1969 the Honourable High Court remanded the case to be tried afresh.
2. The dispute between the parties is eviction of shop bearing No. 1-29/48 situated at Suraj Ganj Bazar, Quetta. It seems that after the remand of the case, the parties entered into compromise on 28-5-1971 wherein it was agreed that the applicant would get three Pucca shops constructed, out of which one would be given to the appellant Rs. 50 per month. It was further agreed that the tenant would vacate the shop after when the site plan of the house laying on its back is got approved. A]I the three shops will be equal in size. This compromise was submitted before the Controller on the basis of which the Controller passed orders on 18-5-1971.
3. The next set of litigation started on 10-11-1980 when Ghulam Sarwar filed an eviction application alleging default in payment of rent from July 1980 to October 1980. An additional ground was also taken that the appellant has sublet' the premises to respondent No. 2 and the last ground was that since the respondent No. 1 had retired from service and required the premises in good faith, for his bona fide personal use and occupation.
4. The appellant and respondent No. 2 contested the eviction application and filed separate rejoinders. The learned Controller framed the following issues: -
(1) Whether the present application cannot be preceded in view of preliminary objection raised by the respondent No. 1?
(2) Whether respondent No. 1 has failed to pay rent w. c. f. July 1989 to October 19$0?
(3) Whether the respondent No. 1 has sublet the premises in question to respondent No. 2 without prior permission of the applicant?
(4) Whether the applicant requires the shop in question for his bona fide personal use and occupation?
(5) Relief?
5. In support of their respective contentions seven witnesses were' examined by the tenant and the landlord examined three witnesses besides the statement of his attorney who was already examined as A. W. 2.
6. On 31-3-1985 the Controller passed impugned order where in she concluded that the tenant committed default and the landlord proved his bona fide personal use and occupation of the said shop after his retirement from service. Hence, an order for eviction and handing over the vacant possession of the said shop was passed.
7. By this appeal the said order has been impugned.
8. The crucial point for determination in this case is whether the order dated 18-5-1971, passed by the Controller on the basis of the compromise, would be a bar for filing second eviction application. Mr. Basharatullah, while supporting the proposition vehemently urged that the second application during the subsistence of the order dated 18-5-1971 was not maintainable. He assailed the order of the Controller deciding this issue in negative, on various grounds. In first instance, he submitted that not only the parties got the dispute settled outside the Court, but also they filed the compromise before the Controller on the basis of which order dated 18-5-1971 was passed. It was, therefore, submitted, that issues were sub--stantially and finally decided by the Controller on the previous application, thus the provision of section 14 of the Ordinance came into play in its full swing. The second limb of his argument was that the order dated 18-5-1971, being executable as civil decree within the meaning of section 17 of the Ordinance is still in subsistence, no fresh proceedings on the same cause of action could be filed. Thirdly it was contended that the com-- promise between the parties, being a contract, still exists and, therefore, the parties are stopped to initiate fresh proceedings for eviction of the disputed premises. Finally, it was submitted that a distinction may be drawn between an order of dismissal of eviction application in previous proceedings and acceptance of such an application in such proceedings. According to the learned counsel, the bar of section 14 of the Ordinance is attracted only when the previous application is dismissed but not when it is accepted.
9. Before dilating upon the aforementioned arguments, it would be advantageous to reproduce section 14 of the Ordinance, which reads as under: - "Decisions which have become final not to be re-opened.-The Controller shall summarily reject any application under subsection (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in any former proceeding under this Ordinance."
10. A decision arrived at by a competent authority after full inquiry on matters in issue between the parties should ordinarily be not allow to be re-agitated between the same parties. This is the principle of res judicata. Such a decision must be arrived at by a competent authority and not through a private settlement, which of course would not attract the principles of res judicata. In case in hand, the Controller on the basis of a compromise passed an order. The moot question, therefore is whether such order has finally disposed of the issues between the parties. The previous application (62/69) was filed by four of the landlord (including Ghulam Sarwar) for the personal use and occupation of the shop for one of them (Muhammad Umar). The issue, therefore, was whether Muhammad Umar required the shop in good faith for his personal use and occupation.
11. The compromise arrived at did not correspond to the issues. The settlement so arrived had no reference at all to Muhammad Umar or his personal needs. It was in respect of reconstruc--tion.
12. The learned Controller ordered eviction in terms of the compromise and not conducting any inquiry himself. This clearly indicates that he did not finally `decide' the issues, which arose out of pleadings of the B parties. Besides, fresh application was moved after about nine year of the order passed in previous application. I find quite some for in the contention of Mr. Khalid Malik that things and circumstances changed with the passage of time. Ghulam Sarwar retired from service during this period. Through a private partition, the said shop fell to "'- share of Ghulam Sarwar. He has proved his bona fide requirement for personal use and occupation of the shop. Such development and change in circumstances cannot be overlooked and Courts may take into considera--tion such a situation. The learned Controller, therefore, was competent to have taken all such facts into consideration. The record indicates no mala fides nor there exists any material on the basis of which it could be inferred that the landlord made any attempt to mala fide change the circumstances in his favour in order to get vacant possession of the shop. Mr. Basharatullah invited my attention to a case reported in 1985 CLC 2483 wherein it was observed that self-created changes in circum--stances would not remove the bar created by section 14 of the Ordinance. I have gone through the said authority and I am of the view that the facts are quite distinguishable.
13. As observed earlier the landlord has never tried to bring any change with the mala fide view to remove the bar of section 14, which otherwise has no bearing on the facts of this case.
14. The issues in previous application were not finally decided. Com--promise was quite different from the pleadings in previous suit. The parties agreed for reconstruction of the shops. The order passed on such considerations, therefore, would not attract the bar of section 14. The averment that the landlord is estopped by his conduct to file fresh eviction application is equally untenable in law. The contention that the compromise being a contract bound down the parties to abide C by its conditions, the parties, therefore, were not legally entitled to con--travene the conditions laid down therein is fallacious because it was not within seisin of the Controller to adjudicate upon the specific performance of the contract. The Ordinance being a special law provides a procedure and this contention is not within the jurisdiction of the Controller. The next contention that section 14 would be attracted only when the previous application by the landlord is dismissed but not otherwise, is not only un--sustainable but totally devoid of force.
15. In section 14 the word "finally decided" has been used which means to deliberate on an issue either accepting or' rejecting it after conducting o full inquiry. The word "decide" cannot be interpreted to mean only passing of dismissal order and not an order of admitting or accepting the application.
16. To "decide" means to settle or to conclude in either way of accepting the contention or rejecting it.
17. It cannot be confined to the meaning of dismissal alone. According to Black's Law Dictionary the word "decide" includes the power and right, to deliberate to weigh the reasons for or against, to see which preponderates and to be governed by preponderance. Even otherwise, such discussion is irrelevant in the instant case, since the Controller did not finally decide the matter after conducting inquiry, but orders were passed in terms of r private compromise between the parties. I am, therefore, inclined to holds that bar of section 14 is not at all attracted in this case.
18. On merits it was argued that where documentary evidence is available but not produced, such facts cannot be proved through oral evidence. On this analogy Mr. Basharatullah argued that since producing could have proved the retirement of Ghulam Sarwar from service retirement certificate, the same should not have been allowed to be proved orally by A. Ws. The counsel of the respondent produced Annexure 'B' and other Annexures indicating that the respondent Ghulam Sarwar has retired from service and his pension papers have also been prepared. Besides this, there is no evidence on record to rebut this averment or to show that said Ghulam Sarwar is still in service. The conclusion, therefore, drawn by the Controller in this respect are correct and are based on evidence.
19. It was next contended by Mr. Basharatullah that private partition between the landlords in respect of property including shop in dispute has not been proved for two reasons. Firstly that the same was not entered in the Record of Rights, secondly it was not registered under section 17 of registration Act. At this juncture Mr. Khalid Malik pointed out that since provisions of Transfer of Property Act are not applicable in this Province, it was not incumbent upon the landlord to have made entries in the Record of Rights. In absence of any document, the question of registration does not arise. This ground, therefore, is equally devoid of force, and not sustainable. It was contended further that in case the property has been transferred to Ghulam Sarwar, a notice under section 13(a) of the Ordinance to the tenant was a pre-condition to prove default on the part of the tenant.
20. In absence of such notice, default could not be claimed.
21. From the perusal of the record it is abundantly clear that Ghulam Sarwar was one of the joint landlords and has been receiving rent of the premises in question. Tenant was fully well aware of this fact. The partition has brought no substantial change. The tenants have been pay--ing rent to the landlord even after when the property in question fell toy his share. Since it was in the knowledge of the tenants that it is Ghulam Sarwar who was receiving rent as landlord and no substantial change occurred after partition, hence notice under section 13(a) was not mandatory.
22. My attention was further drawn to the fact that some of the R. Ws. Deposed that there are two shops of Ghulam Sarwar. In such view of the matter it was argued that prior to order of eviction, the landlord should have satisfied the Controller about the fact that the shop already in possession of the landlord was not suitable for his needs.
23. To my mind this is one side of the picture. Virtually this fact has not been finally proved and the learned Controller rightly decided this issue against the tenant. It was then abortively contended that it was a case of first default, which was condonable under the Ordinance. The material on record does not substantiate this contention. R. Ws. And the respon--dent have rather supported the contention of the landlord by deposing that they tendered rent for the period for which the default is claimed, but no receipt was issued to them. Mere allegation of tendering rent l without any written notice issued in this respect would not be sufficient to prove that rent was in fact paid.
24. Reliance may be placed on 1983'a SCMR 950, PLD 1980 Kar. 455 and 1968 SCMR 866. Even otherwise, wild allegations of tendering rent without proving the pay -1 of rent would not absolve the tenant of the liability of default.
25. The landlord has proved his personal bona fide requirement for use and occupation of the said shop. He was in service and when he retired,~ be naturally requires the shop for his personal occupation. The conclusion drawn by the Controller on the point of bona fide requirement is confidence inspiring.
26. From the above discussion I see no justification to interfere with the' order passed by the Controller dated 31-3-1985. There is no force in this l, appeal, which is hereby dismissed. However, I allow two months time to tenants to hand over the vacant possession of the shop to the landlord. The parties have to bear their own costs.