The Constitutional jurisdiction of this Court has been invoked by Syed Ahmad Farooq and others hereinafter called the landlords/petitioners, against the order of the Appellate Authority dated 26- 7-1983 and the order of the Rent Controller dated 3-4-1983, whereby the eviction petition filed by the petitioners in respect of Shop No.43 (C) on the ground floor Kirparam Compound, Rawalpindi Cantonment, was dismissed.
2. The brief facts in the background of this petition are: that Syed Ahmad Farooq and others, the petitioners are owners/landlords in respect of the shop No.43 (C) Ground Floor, Kirparam Compound Rawalpindi Cantonment (hereinafter referred to as the rented premises) while Muhammad Arif was the original tenant. The present respondents are successors-in-interest of Muhammad Arif. On 16-12-1979, the petitioners filed eviction application under Section 17 of Cantonments Rent Restriction Act 1963 (Act NO.XI of 1963), hereinafter referred to as Act, on the ground of personal requirement.
3. The application was resisted on the principal ground that the instant petition was barred under the principle of constructive res judicata as the application filed by the petitioners for the personal requirement was dismissed by the learned Additional District Judge by order dated 21-11-1979.
4. The learned Rent Controller vide order dated 3-4-1983 rejected the application holding that the application was barred in view of the order of the learned Additional District Judge dated 21-11-1979 wherein the previous application filed by the present petitioners on the ground of personal requirement of his were was dismissed.
Feeling aggrieved by the order of the Rent Controller dated 3-4-1983, the petitioners filed appeal which was dismissed by the learned Additional District Judge vide impugned order dated 21-11- 1979. This order is called in question in this petition.
5. The learned counsel for the petitioners/landlords raised the following points in support of his case:- (i)It was contended that the learned first appellate authority fell into error of law by pressing into service the principle of constructive res judicata in eviction proceedings being conducted under the provisions of the Act. It was argued that the provisions of Section 23 of the Act were not applicable to the facts of the present case as in the previous application only requirement of were of petitioner No.1 was adjudicated. Neither between the parties, question of personal requirement of Muhammad Arif was in dispute nor there was any issue in this respect. Strength was sought from Wasi Ahmad Rizvi v. Federation of Pakistan (PLD 1982 SC 20), Jabar etc. v. The State (PLD 1984 Lah.
385), Allah Rakha v. Muhammad Shafi (1978 SCMR 437), Ghulam Bahauddin Qureshi v. Mrs. Hawa Bibi (PLD 1979 Karachi 597), Dr. Riaz ud Din Ahmad v. Mahboob Ilahi (1985 SCMR 522).
(ii)It was submitted that the finding of the first appellate authority was based on conjectures and surmises.
6. On the other hand, the learned counsel for the respondents supported the decision of the Additional District Judge as well as of Rent Controller. He adopted an argument that the Constitutional jurisdiction cannot be exercised in the instant case, as the conclusions of both the Rent Controller and the Additional District Judge were eminently just and were not open to any interference. According to him, the approach of the Rent Controller and the Additional District Judge may be erroneous, but their conclusion was completely correct, in the context of the statement of the petitioner No.1 who admitted that his requirement and the requirement of his were were one and the same; that he had been in need of the rented premises since 1974. It was suggested that the statement was sufficient to lead to conclusion that in previous application his requirement was in issue between the parties and had been adjudicated.
7. I have heard arguments of the parties, and perused both the impugned orders. Before I proceed to determine the respective contentions of the parties, it will not be without benefit to reproduce the findings of the Rent Controller, which are as under:- "The petitioner No.1 in his examination-in-chief has alleged that he needs the suit shop for his personal use. In his cross-examination he has deposed that he filed an ejectment petition against the respondent on the ground that the shop in question was required by him for personal use where his were intended to run a clinic; and this petition was dismissed by the Additional District Judge.
Moreover, the petitioner No.1 admits that his requirement has been existing since 1.974 and no change has occurred in his requirement since then. He also admits that he considers the requirement of his were and his own as one and the same thing.
This shows that the same old issue is being again opened which already has been decided by the honourable Additional District Judge in 1979."
8.On this point the learned Additional District Judge observed as follows:- "The learned Rent Controller came to this conclusion that the same old issue was to be opened before him. The observation of the learned Rent Controller was not correct as I have stated above.
The appellant/petitioner had produced their claim and in the light of the evidence the learned Rent Controller should have decided the matter in dispute independently."
9. To my mind the following questions emerge from the contentions of the parties: (i)Whether the Rent Controller as well as the first appellate authority had decided the question of personal requirement within the framework of sub-clause (b) (i) of subsection (3) of section 17 of the Act.
(ii)Whether the instant application was barred under the principle of constructive res judicata.
(i.e)Whether both the impugned orders are in contravention of the principles & rules laid down by the superior judiciary.
10.I accordingly proceed to determine the aforesaid questions. The first question can be answered by reference to section 23 of the Act and section 11 of the Code of Civil Procedure. Section 23 of the Act is as follows:-- "23. Decisions which have become final not to be reopened -- The Controller shall summarily reject any application under subsection (2) or under subsection (4) of section 17 or under section 17-A which raises substantially the same issues as have been finally decided in a former proceeding under this Act."
11. A bare reading of section 23 ibid makes it abundantly clear that the principles of res judicata contained in section 11 of the Code of Civil Procedure have not been totally engrafted into the Act, section 23 ibid on the plain reading is applicable to the findings in respect of which there has been express adjudication. It is not applicable to the findings on the basis of the constructive res judicata. It will be appropriate to examine distinction between the constructive res judicata and actual res judicata within the framework of section 11 of the Code of Civil Procedure.'
12. The doctrine of res judicata is built upon the consideration of public policy that there must be an end to the litigation and finality be given to adjudication at some stage. The principle of res judicata is founded on the rule of estoppel. If there is a final adjudication between the same parties, in respect of A the matter directly and substantially in issue between the parties by the Court of competent jurisdiction, the parties are precluded to reopen the matter before the Court for second round of litigation. The principle of constructive res judicata embodied in Explanation IV to section 11 of the Code of Civil Procedure is intended to compel both the parties to the suit to raise, before the Court in support of their contentions, all grounds of attack and defence available to them and so get their whole case determined. It forbids piecemeal litigation and withholding of ground with the purposes of avoiding the principle of res judicata. It is based upon the principle of an existing cause of action and does not relate to recurring causes of actions. On the basis of this very principle, the principle of res judicata has been excluded in section 23 of the Act which only embodies the principle of actual res judicata.
13. The principle of res judicata in terms of section 14 of the Rent Restriction Ordinance 1959 came into consideration before the Supreme Court in Sh. Maula Bakhsh and another v. Fatal Din and another (PLD 1982 SC 201). In this case, Maula Bakhsh and others, appellants before the Supreme Court filed an eviction application on the ground of reconstruction. The application was accepted by the Rent Controller. In appeal by the tenants the Additional District Judge accepted the appeal and dismissed the eviction application on the ground that already the application on the basis of the reconstruction filed by the landlord was dismissed. The Nigh Court by judgment dated 11-2-1967 dismissed the appeal. Their Lordships of the Supreme Court while accepting the appeal, observed as under:-- "Similar plea was raised from the respondents' side (as constituting a good defence) before the learned Rent Controller which was repelled for the reason that the question raised in the fresh petition was not finally decided in the earlier proceedings. It seems that the respondents did not raise this plea again during the first appeals before the District Court. Be that as it may, apart from the fact that the plea was not finally adjudicated in the earlier proceedings, after going through the pleadings, we feel that there was a new cause of action that the bar of general res judicata or for that matter one in the provisions contained in section 14 of the Ordinance, was not attracted:'
14. This principle has been reiterated in a number of cases which are not necessary to be repeated.
The ratio emerging from the aforesaid authority is that 'the principle of constructive res 'udicata is not applicable to the proceedings 113 under the Rent Laws.
15. Guided by the aforesaid rule 1 entertain no doubt in my mind that the Additional District Judge as well as the Rent Controller fell into error of law by extending the principle of constructive res judicata to the facts of the case. In the aforesaid case it was the personal requirement of the were of petitioner No.1 which was adjudicated. The requirement of the petitioners was not at all adjudicated and cannot be deemed to have been decided by fictional operation of constructive res judicata.
16. Reverting to next question it is necessary to repeat that the superior judiciary has enunciated the following rules for the purpose of deciding the question of personal requirement:-- (a)The personal requirement of landlord is to be decided within the framework of safeguards provided by section 17 of the Act. It is clearly provided in section 17 ibid that if eviction is sought in respect of commercial premises on the ground of personal requirement and the shop is re-let after the order of eviction, the tenant is entitled to restoration of his tenancy within the framework of section 17 ibid. Reference may be made to Nasir ud Din v. Muhammad Siddique 1981 SCMR 709 and Abdul Majid v. Additional District Judge, Sahiwal and others (1983 SCMR 374).
(b)That the Rent Controller as well as the appellate authority have to give due weight to the statement of the landlord on oath in respect of personal requirement. If the statement of the landlord on oath is in consonance with the averment in the application, his statement is to be ordinarily accepted as true.
17. P.W. 3 petitioner clearly stated in his statement under oath that he had no other shop where he could start his business, that he wanted the shop in good faith for starting business in the said shop. His mere statement that his need and need of his were are the same cannot lead to the conclusion that the question of his requirement stood established in the previous application.
Therefore, I have no doubt in my mind that the impugned orders have been passed in defiance of section 23 of the Act as well as the rule enunciated by the superior judicial D authorities in respect of personal requirement.
18.In the result, I have come to conclusion that the orders passed by the first appellate authority, as well as Rent Controller are totally without jurisdiction and are contrary to law. Therefore, I have no option but to accept the petition and declare the impugned orders as having been passed without any lawful authority. The petition is accepted and the impugned orders are set aside. The case is remanded to the District Judge, Rawalpindi who shall decide the appeal of the landlords in accordance with law. As the case has been pending for a long time, the District Judge is directed to decide the appeal within four months of the receipt of this order. There shall be no order as to costs.