Sh. Muhammad Ibrahim Kohli,petitioner herein, has filed this writ petition to assail the validity of the judgment of the Addl. District Judge, Sialkot dated 12th of February, 1983 whereby an order of ejectment was passed against him.
2. On 1st of June, 1981, Sh. Shafique-ur-Rahman, respondent No.3, filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance (VI of 1959) for the eviction of the petitioner from Shop No.21/1199, situate in Bazar Kalan, Chowk Purbian, Sialkot City, on the ground of personal need.
This shop is on lease with the petitioner at a monthly rent of Rs.350.
3. The petitioner opposed the application controverting the plea of respondent No.3 that he bona fide required the shop for his personal use. He asserted that respondent No.3 merely wanted to enhance the rent. He also raised preliminary objections to the effect that since the shop was evacuee property and he had not been served with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, the application was premature and that since earlier also respondent No.3 had filed an application for his ejectment on the ground of personal need but had subsequently withdrawn it on enhancement of monthly rent, the second application was not competent.
4.The Rent Controller framed the following issues:- (1)Whether the respondent is entitled to notice under section 30 of D.P. Act, 1958? O.P.R.
(2)Whether the petition cannot proceed in view of preliminary objection No. 2? 0 . P . R .
(3)Whether the petitioner requires the property in dispute for personal need in good faith? O . P . A .
5.In support of the issues, respondent No.3 examined three witnesses including himself. In rebuttal the petitioner also produced the same number of witnesses including himself. After appraising the evidence, the Rent Controller vide his judgment dated 12th of October, 1982 found issues Nos.1 and 2 against the petitioner but deciding issue No.3 in his favour dismissed the ejectment application.
Feeling aggrieved, respondent No.3 filed an appeal which was heard by the Addl. District Judge, Sialkot who after re-evaluating the evidence reversed the finding of the Rent Controller on issue No.3 and setting aside his judgment dated 12th of October, 1982 passed an order of ejectment against the petitioner directing him to vacate the shop and deliver its possession to respondent No.3 within a period of four months vide his judgment dated 12th of February, 1983. The petitioner has assailed this judgment in the instant writ petition.
6. Learned counsel for the petitioner has strenuously contended that since the earlier application filed by respondent No.3 for the eviction of the petitioner inter alia on the ground of personal need was dismissed as withdrawn, the subsequent application filed against the petitioner on the same ground was barred by the principle of res judicata as envisaged by section 14 of the Punjab Urban Rent Restriction Ordinance, 1959 and section 11, C . P. C . According to him, although the provisions.
Of C.P.C. Are not applicable, yet the principle codified in section 11 thereof would apply as the same is based on the maxim that no one shall be vexed twice over the same matter. He has cited Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603), Imperial Dying and Printing Mills, Karachi v. Safdar Ali (PLD 1971 Karachi 778) and Ayub Khan and another v. Fazal Haq and others (PLD 1976 S.C. 422) according to which rules of natural justice embodied in the Code of Civil Procedure are applicable to ejectment proceedings.
7. The previous application for ejectment (Ann exure "I") was filed on 2nd of January, 1979 on the grounds of default and personal need. On 10th of March, 1979, respondent No.3 made a statement withdrawing the application whereupon the same was dismissed as withdrawn (Annexure "J").
Respondent No.3 explained in his statement as A.W. 3 that the previous application was withdrawn when the petitioner had executed a fresh rent deed in his favour enhancing the monthly rent of the shop from Rs.250 to Rs.350. It is evident from these facts that the previous application was not decided after final adjudication of the questions in controversy but was dismissed as withdrawn.
Learned counsel for respondent No.3 has argued that in these circumstances the rule of res judicata as contemplated in section 14 of the Ordinance or section 11 C . P. C . Is not attracted. He has placed reliance on Allah Rakha v. Muhammad Shafi (1978 SCMR 437) wherein it has been observed as follows:- "Section 14 applies to a case which may have been "decided" by the Rent Controller and if the landlord withdrew the previous application on the basis of some private settlement with the tenant then that was an arrangement between the landlord and the tenant and not a "decision" of the Rent Controller himself."
He has also cited Sh. Maula Bakhsh and another v. Fazal Din and another (PLD 1982 SC 201) and Muhammad Mohsin v. Rent Controller and others (PLD 1985 SC 327), according to which second application for ejectment on the plea of personal need is not barred by section 14 of the Ordinance if the plea was raised but not finally adjudicated A upon in the earlier ejectment proceedings or if a new cause of action had arisen after the dismissal of the earlier application. In view of these authorities, therefore, the argument advanced by learned counsel for respondent No.3 is quite tenable.
8. On merits, respondent No.3 admittedly is a resident of Sialkot and does not own there any shop except the shop in dispute. There is no allegation that he is in occupation of any other shop there.
He deposed as A.W. 3 that he was living in Faisalabad for the last six or seven years and he had started there his business of powerlooms but it flopped. He denied that his only intention was to raise rent. He was supported by his two witnesses. Even Ghulam Nabi, one of the witnesses of the petitioner, admitted in his cross-examination as R.W.1 that respondent No.3 wanted to run his business in the shop B in dispute. The other witness produced by the petitioner namely Ejaz Shakeel R.W. 2 admitted in his cross-examination that his statement that respondent No.3 did not require the shop for his personal us and he only wanted to enhance the rent was only presumptuous and based on hearsay. This evidence of the petitioner failed to rebut the testimony of respondent No.3 that he required the shop bona fid for his personal use, especially after his business at Faisalabad ha flopped.
9. Learned counsel for the petitioner has emphasized that the fact that respondent No.3 withdrew his earlier application on enhancement of rent recoils on his personal need. In order to repel this argument learned counsel for the respondent has referred to Allah Rakha v. Muhammad Shafi (1978 SCMR 437) and Peerzada Rafiq Ahmad v. Chaudhry Abdul Rehman (1980 SCMR 772). In the case of Allah Rakha, the following observations have beem made:- "The next point argued by the learned counsel was that if the subsequent application was not barred by the principle of res judicata then at least earlier circumstance of compromise was a matter which should have been taken into consideration to notice the conduct of the landlord which according to him seriously reflected on the plea of bona fide requirement of the shop in dispute by the landlord. This aspect of the case has duly been attended to by the two Courts below who were of the view that merely because in the year 1972 the landlord withdrew his application, as a result of some private settlement with the tenant at that time, it did not mean that the landlord was debarred from doing the business in that shop in the year 1975. We find nothing wrong with the aforesaid view because a private settlement made earlier cannot constitute an eternal defect in the landlord so as to debar him for ever to get the shop for his personal use/requirement subsequently, and all that we would like to observe in this respect is that each case will depend on its own facts and circumstances. So far as the present case is concerned nothing has been brought to our notice to show that the landord did not need the shop for his ownself, at the time when he filed the present ejectment application, and the mere fact that earlier he had, to put it in other words, postponed his need, by making some private settlement, it did not mean that the need subsequently could not have arisen."
In the case of Peerzada Rafiq Ahmad, it has been observed that a demand of higher rent by itself does not cast any doubts about the personal bona fide requirement if factum of bona fide requirement is independently proved.
10. In these circumstances, the conclusion arrived at by the learned Addl. District Judge that respondent No. 3 requires the shop in dispute bona fide for his personal use is not violative of anY principle of law or vitiated by any fallacious approach.
11. For the foregoing reasons, I find no force in this writ petition and accordingly dismiss the same.
The parties are left to bear their own costs.
12. The petitioner is, however, allowed a period of three months from today to vacate the shop and deliver its possession to respondent No. 3.