' This F.A.O. Arises from an order dated the 29th of October, 1985, of the learned Addl.Rent Controller, Lahore Cantt., whereby he dismissed the appellant's application for ejectment from the disputed shop brought against the respondent-tenant on the ground of res judicata as envisaged by section 23 of the Cantonments Rent Restriction Act, 1963.1 use as presently he was running his business in a shop not owned by him, (2) that the respondent-tenant ceased to occupy it continuously for more than seven months, in that he had gone abroad, and (3) that he committed default in paying rent since March, 1982.
3. The petition was resisted by the respondent on a preliminary objection to the effect that it was barred by section 23 of the Act ibid. Inasmuch as a similar application filed earlier was dismissed on the 13th of July, 1982, by the Rent Controller as also the appellate Court. He claimed that the present petition was mala fide, vexatious, without cause of action and intended to harass him with a view to enhance the monthly rent.
' The trial Court framed the following preliminary issue; "Whether the present petition was maintainable or not? OPR."
' It found that it view of dismissal of the former application, section 23 referred to above fully applied and that it was not maintainable on the principle of res judicata. Accordingly it dismissed the ejectment petition.
5. Mr.Siddiq Butt for the appellant drawing attention to the judgment dated the 13th of July, 1982 (Annexure 'A') at page 5 of the present file, claimed that the former application was not based upon the appellant's personal need. According to him, it was instead brought on the ground that he needed it "for the personal use and business of his son Mohammad Sarwar". The Court dismissed it as the provisions of section 17(4)(b) of the above Act did not allow eviction of the tenant from a commercial building on the ground of need of any member of the landlord's family.
This was a peculiar distinction in relation to commercial property, although in the case of residential building, ejectment could be sought on the ground of personal need of any member of the landlord's family. Counsel emphasized that the present petition was not brought to accommodate the appellant's son and that instead it was brought for his own use because he was presently working in a shop rented by him. He argued that this distinction was lost sight of particularly by the trial Court which omitted to take note of the fact that the appellant was not occupying a shop belonging to himself. He added that personal need of the landlord himself was quite independents of the need of his son both being relatable to entirely separate causes of action and, therefore, the principle of res judicata could not conceivably be applied to the second application. He placed reliance on Sh.Maula Bakhsh and another v. Fazal Din and another PLD 1982 SC 201 and Dr.Riazuddin Ahmad v. Mahboob Illahi 1985 SCMR 522 wherein subsequent petitions were held not barred by res judicata merely because the appellant was unsuccessful in earlier application.
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10. On the other hand, Mr.Zaka-ur-Rehman for the respondent vehemently urged that even the first application was effectually brought for the appellant's own use. He referred to the expression "personal use" employed in the petition as also the judgment meaning thereby that it conveyed the sense of the appellant's own requirement. I am afraid the reading was quite out of context. The expression used is "for the personal use and business of his son Mohammad mSarwar". It cannot be split so as to misinterpret it and shall have to be taken as a whole. Evidently it referred to the personal requirement of the appellant's son, and not his own. Additionally, counsel maintained that it was open to the appellant to raise this plea in the earlier petition and that his failure to take it up previously, would preclude him from raising it subsequently. He relied upon Messrs Delite House Ltd. v. Ch.Fayyaz Akbar 1986 CLC (Lah.) 495 in this behaif.
7. The learned Addl. Rent Controller appears to have had rushed to the conclusion, without considering the fact that the appellant was doing his business in a rented shop. This was a vital circumstance agitated in the petition deserving attention but was totally omitted in the discussion.
A perusal of the previous application as also the judgment whereby it was dismissed, was worth its while. It was dismissed because it was hit by section 17(4)(b) which did not permit eviction of a tenant from a "commercial building" on the ground of need of a member of the landlord's family.
Moreover, no discussion at all was made therein of personal need of the appellant himself. The provision invoked to dismiss the same summarily did not apply to his case which could not have been cursorily disposed of without taking evidence in regard to his bona fide personal need. In that event it would have been rather a decision on merits but the judgment spoke nothing of the sorts. It should make a difference between the two applications, and the causes of action those were separately based upon. The rule laid down in Messrs Delite House Ltd. Does not apply to the instant case for a number of reasons. One of them was that the former petition in that .Case was brought by the landlord on the ground of his own need without explaining that it arose due to physical disability of his being hard of hearing and inability to establish himself as a lawyer in the legal profession. He had withdrawn it with a view to add these grounds in a new one. An objection was taken that those were available to him at the time he had brought the former application and, therefore, it may not be permissible for him to plead them in his second attempt. Res judicata was thus constructively applied to the subsequent application. Those circumstances have no relationship to the facts of the present case where the two applications are based upon independent causes of action. It cannot be said that the appellant should have pleaded his personal need in the former application when, in fact, he did not require it. It iS almost for him to see as to when he might need the shop for himself. Since admittedly he is a shop-keeper, and is undeniably doing his business in a rented shop, apparently he himself had to decide as to when to leave the rented shop and occupy his own. He will be sole arbiter in the matter.
8. I feel constrained to differ with the trial Court and on this view of the matter accept the appeal, reverse the impugned order and remand the case to it holding that the present petition was not hit by res judicata. It may be tried on merits. Parties to appear before the lower Court on the 8th of November, 1987.