1. ' Appellant-tenant appeals from the order of ejectment dated 1-1-1991 passed by the learned Additional Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No,36 of 1987.
2. Ejectment proceedings, pertaining to the bungalow in dispute, were launched on the grounds of default in the payment of rents, using the premises for unlawful purposes, occasioning nuisance for the neighbours and personal bona fide requirement of the landlord. Denying his liability to be evicted on any such score, the tenant also questioned the maintainability of the rent case because an earlier proceeding bearing No,96 of 1980 was dismissed for non-prosecution, allegedly, entailing a bar of res judicata. The learned Controller has found the application maintainable, has rejected the ground of misuse of the disputed premises purportedly occasioning nuisance to the occupants in the neighbourhood and has held that, rents having been deposited in Court, no default on that basis arose but there being a failure to pay the water and conservancy charges on the part of the appellant-tenant and the personal requirement of the landlord being in good faith an order of eviction has resulted.
3. Regarding maintainability of the ejectment case, bar on the invocation of the principle of Res Judicata, as recognised in Section 23 of Cantonments Rent Restriction Act, 1963, would apply, if at all, when the two proceedings between the same parties, or persons claiming under them, involve identical facts and grounds at issue and there is previous conclusive determination of the dispute.
4. Where there are several grounds urged for seeking eviction, the doctrine of Res Judicata may be restricted to only those grounds as are identical to the ones figuring in the previous LIS. The matter would then proceed for and be restricted to the rest. If the earlier determination has been final and conclusive it is essential to produce a certified or an uncontroverted copy of the earlier rent case together with the defence, if any, so as to facilitate comparison as to what questions would be foreclosed on the premises of Res Judicata and which of the same did not attract the rule that is to say, if all such questions were not found to be barred. An examination of the record, summoned from the Additional Controller of Rents, does not seem to contain any such pleadings. In the face of Jiwanmal v. Jaromal, 1980 SCMR 783, and Nasir Rizvi v. Begum Sultana Ahmad, 1984 CLC 3098,. It is difficult to uphold the plea as to non-maintainability. Besides, the case obliquely urged is that the earlier dismissal happened to be one for default of appearance only. A mere dismissal for default covered by the principles enacted in Rules 4 and 5 of Order IX, C.P.C. Would not bar a fresh action even if the successive applications raise common grounds. It has not been shown that the previous dismissal did not fall within the scope of the principles appearing in the said rules. The findings on the question of maintainability is, therefore, not amenable to any exception.
5. From the side of the respondent-landlord it has been urged that the material placed before the learned Controller in the context of misuse of the disputed premises by housing contraband herein and in indulging in smuggling therefrom did support the pleas of nuisance for the neighbouring occupants and impairing the value or utility of the premises. Reference is made to some newspaper reports and other data showing that the appellant-tenant was arraigned in that behalf but was later acquitted. It is correct that mere acquittal of the tenant from the charge of smuggling would not negate such plea and that relevant facts may be proved before the Controller irrespective of the acquittal. It would, however, seem that no independent evidence for storing contraband or indulging in acts or omissions constituting smuggling on the part of the appellant- tenant was led and the limited evidence of the landlord-respondent on the subject was itself sketchy Sand, at best based on assumption and conjectures. The Controller, therefore, rightly found that this ground was not proved.
6. As to default, the learned Controller has based his findings on deposits of rent by the appellant- tenant in Court and withdrawals thereof by the landlord, implying that the deposits were rightfully occasioned or, if not, entailed acquiescence on the part of the landlord, when unconditional withdrawals were affected. In situations of this character, where the landlord affects withdrawals of deposited rents in Court, in the event there are reservations on his part and the intention is not to cure or acquiesce in the default, if any, already occasioned, withdrawal of rent has to be made, either expressly or by necessary implication, maintaining that such is being made without prejudice to the legal rights, which may be set up in due course. The record does not show that any such stipulations were made either before or at any other material time as relevant to the withdrawals. On the other hand but in the same context, the tenant failed to pay the water and conservancy charges, which under the agreement of tenancy, dated 10-4-1987, was his obligation.
7. The Controller has acceded to accord eviction on this last non-payment. The Cantonments Rent Restriction Act, 1963, does not define "rent". In order that water and conservancy charges could be treated as part of rent under the statute the legislature was free to say so. It has not. In other legislations on the subject e.g. The Sindh Rented Premises Ordinance, 1979, such charges have expressly been declared to be part and parcel of rent and nonpayment thereof has been held as much in the nature of default of payment as rent simpliciter. This cannot be the position under the Cantonments Rent Restriction Act of 1963. Default of this genus may attract such other action as in law it may but cannot result in an order of eviction for non-payment of rent. The concept of "rent", unless a contrary intention appears, has to be taken to mean only such payment as conventionally falls within the ambit of that term viz. "a periodical payment for the use of another's property". There was no scope for straining the language of the provisions here and in doing so the learned Controller has manifestly erred.
8. ' Reverting now to the personal bona fide requirement of the landlord, bulk of the argument from either side has centred on this question. The case of the respondent-landlord has been that he is putting up in a tenant-hold premises himself, provided to him by his then employers, M/s. National Motors Limited, that he has been transferred to a sister concern of such employers namely, Sindh Engineering (Pvt.) Limited, that the landlady of such property is insisting that the same be vacated and that upon securing eviction he intends to move into his own property, which, as seen, is a bungalow situated in the Defence Housing Authority, Karachi. In support he has examined himself, Ramz Ali and one Ghulam Hussain. The tenant's case, correspondingly, is that accommodation is being provided to the respondent-landlord by his employer free of charge and there is neither any personal requirement nor justification for seeking eviction on that plea. Mr. Muhammad Kamal Shaikh has drawn my attention to Section 17(4)(ii) of the Cantonments Rent Restriction Act, 1963, which runs thus:- "He or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in any local area in the vicinity thereof;"
9. ' Contention of the learned counsel is that for the purposes of the a forequoted provision all that is to be seen is whether a landlord, who seeks to evict his tenant from a residential building, is or is not occupying in the Cantonment or in the adjoining local area any accommodation suitable to his needs and if that be so it is altogether irrelevant whether the accommodation so occupied is or is not owned by him. To put it plainly, the argument is that mere occupation of adequate accommodation by the landlord in the cantonment or in an adjoining local area would be sufficient to non-suit him in seeking eviction on the ground of personal need. The objection of the learned counsel, on the face of it, appears to be well taken because the Supreme Court enunciation of a somewhat similar provision in Abdul Aziz v. Muhammad. Ibrahim, (PLD 1977 SC 442), hinged on the construction of the word "such" occurring in that provision. I relevantly refer to Section 13(3)(i)(b) of the then West Pakistan Urban Rent Restriction Ordinance, VI of 1959, which still applies, with suitable amendments, in the provinces of the Punjab, Balochistan and N.-W.F.P. Such provision reads as under:- "3(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession--
(1) in the case of a residential building, if--
(a) he requires it in good faith for his own occupation or for the occupation of any of his children;
(b) he is not occupying another residential building suitable for his needs at the time, in the same urban area in which such building is situated;"
10. ' The Supreme Court dictum in Re: Abdul Aziz (Supra), could be distinguishable because the word "such" employed once in relation to residential buildings and twice in connection with non- residential ones, which word was duly explained in the case under report "as referring back to the preceding provisions" does not find place in Section 17(4)(a)(ii) of the Cantonments Rent Restriction Act, 1963. This, however, is not entirely so. In Section 17(4)(b)(ii) pertaining to non- residential buildings the crucial word "such" duly finds place. Even so, it may be said that residential buildings, as here involved, may be differently treated.
11. ' It would seem that irrespective of the dicta in Re: Abdul Aziz the rule of beneficial construction is to be applied in such cases and the intention of the legislature, on being ascertained, is to be given effect to. If a mere technical construction was accorded to the provision in Section 17(4)(a)(ii) of the Act the result may be that a landlord, who owned but did not occupy another suitable premises and was condemned to the possession of a mere tenant-hold could never successfully evict a tenant on the ground of personal requirement even though he were the owner of numerous such holdings, albeit all tenanted. This surely cannot be the intention of law. The words "building" and "occupation" in the cited provision must be interpreted to imply and mean a "building" owned by the landlord and "occupation" would denote occupation as owner. The Supreme Court itself in the earlier case of Salam Akhtar v. Dr. -Najam Parvaiz, 1976 SCM R 52, dealt with the problem thus:- "The next contention advanced on behalf of the petitioner is that since the landlord was living in rented premises, he was in occupation of another residential building suitable for his needs in the same urban area and, therefore, he was not entitled to evict the petitioner. The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view, extend to cover rented premises, for, otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation which the landlord is occupying at the time, must be shown to be his own and not merely rented premises.
12. ' The law in the United Kingdom is somewhat different. There the case of a person who purchases a premises after the coming into force of the special law has been dealt with separately. In the law prevailing in this country, there is no such separate treatment and, therefore, it is reasonable to assume that the legislature did not intend to disqualify a person occupying a rented premises from getting his own premises vacated for his own use and occupation."
13. ' Saeeda Fatima v. Abdul Hamid, PLD 1983 SC 258, declares it as well-settled that the expression "another residential building suitable for his needs" occurring in Section 13(3)(a)(i)(b) of the Rent Ordinance "refers to the building owned by the landlord". I have little doubt that ratio in these cases applies to the relevant provisions in the Cantonments Rent Restriction Act, 1963. As a result, I am of the view that the disentitlement for the landlord would arise only if he was in possession of another similar and suitable premises both owned and occupied by him and not merely if he occupies such premises but does not own it. Thus even where a person occupies another residential building suitable for his needs but is either an unauthorised occupant, or a licensee or tenant there of, he would not stand disqualified within the meanings of Section 17(4)(a)(ii) of the Cantonments Rent Restriction Act, 1963, from applying for eviction from a premises belonging to him and occupied by a tenant.
14. Even otherwise and even if what is observed above was not so, the phrase "residential building suitable for his need at the time is broad enough to exclude the consideration of an occupancy, which is subject to a threat of or a projected eviction. Thus where an unauthorised occupant or a licensee or a tenant is threatened or otherwise lawfully called upon to vacate that which.He occupies, the last mentioned premises can no longer, justly and fairly, be said to be covered by the words 'residential building suitable for his needs at the time" being subejct to a prospect of dispossession in near or forseeable future. Precisely such is the situation here because the tenant- hold which the respondent-landlord himself occupies is subjected to a requirement by its own owner and such being the, position it cannot be said that the tenant-hold in the current occupancy of the landlord was suitable "at the time" he applied for eviction in these proceedings for his needs at such time. It is true that no rent case, as such, was filed against the respondent-landlord till then.
15. That was not necessary. Mere prospect of one, but legitimate at that, may be enough. In this view of the matter also I am satisfied that the bar pleaded by the learned counsel against the landlord did not apply.
16. ' Upon the aforementioned reasoning I have seen no merit in this appeal and dismissed it in limine, according four months' time for the tenant to vacate. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.