WAJIHUDDIN AHMED, J.~ This First Rent Appeal calls in question the order dated 31.8.1987 passed by the learned IIIRD Senior Civil Judge and Controller, Karachi West, in Rent Case bearing No. 2983/85 through which an ejectment application of the appellants on the grounds of default and personal need was dismissed.
2. On facts respondent is the tenant of the appellants in respect of a first floor flat in the building situated on plot No.V.E.8/1, Nazimabad, Karachi. Appellants are the sons of one M. Qasim Patel who was the previous landlord of the tenant-hold. He died on 6.3.1982. Notice under Section 18 of the Sind Rented Premises Ordinance, 1979, intimating the death and devolution of the property on the appellants was issued on 9.7.1985. The respondent-tenant made reply on 24.7.1985 and Inter Alia, stated that the rent of the premises up to August, 1985, was already lying deposited in a previous rent proceeding between him and the appellants' predecessor in interest. He despatched the rent for the month of September, 1985 through Money Order which was refused on 6.10.1985 whereafter Misc. Rent Case No.304/85 was filed by him and the rent continued to be deposited in the same.
Default is still claimed against the tenant.
3. The plea of personal requirement was grounded on the fact that the appellant No.2, Mohammad Ishaque, who was un-married at the time, intended to marry and to shift to the disputed premises upon surrender of the rented premises hither to occupied by him. The respondent-tenant resisted the personal requirement on the ground that a previous Rent Case bearing No.343/76 was filed by the predecessor in interest and father of the appellants on the same ground and was dismissed whereupon F.R.A. No.213/80 was brought to this Court and also failed, in essence, a pica of Res Judicata. Even otherwise, it was claimed that the appellant No.2 did not in good faith require the disputed premises and that previously other tenements in the same building had fallen vacant but were never occupied by such appellant.
As seen the learned Controller rejected both the grounds for the claimed eviction and dismissed the ejectment application which dismissal has resulted in this appeal.
4. Mr. Ali Mohammad Seth has assailed the finding of default on pleas that the tenant continued to make deposits, in the first instance, in the previous rent proceedings and even subsequently the tender of rent in the Misc. Rent Case remains in the name of the previous landlord who is no longer on the scene. In such context learned counsel has made reference to the cross-examination of the respondent-tenant wherein he admitted that the previous landlord, the appellants' father, died in 1982 and that the tenant had also attended his funeral. In this state of knowledge it is urged that the said deposits cannot be treated to have wiped OF the default in non-payment of rent to the successor-landlords. It is also contended that the above referred Misc. Rent Case itself was filed subsequent to the filing of the instant eviction application.
5. It is in evidence that F.R.A. No.213/80 was dismissed for default of both the parties on 29.5.83 and the tenant in his reply dated 24.7.1985 to the notice maintained that such was pending and that deposits of rent were being made in relation thereto, covering the period upto August, 1985. It was only in the rejoinder of such notice that the appellants/disclosed the dismissal of the F.R.A, and a certified copy, which was consequently obtained of such order by the tenant, was itself applied for on 22.9.1985 implying lack of timely knowledge of the dismissal. Besides, the despatch of the Money Order, which was refused, remain^- :controverted. Even if it is taken as granted that the tenant was aware of the demise of the previous landlord and the corresponding devolution of the property in the present appellants, of the last of which there is no direct evidence on the record except the correspondence beginning with the notice dated 9.7.1985, such acts alone do not OF set the effect of Section 18 of the Sind Rented Premises Ordinance, which expressly postulates that where a tenant, on receipt of a notice >f devolution of the tenant-hold property, makes due payment of rents to the successor-landlord he shall not be deemed in default. Furthermore, it is now settled law that where on account of deposits or payments in favour of the previous landlord, which are not contumacious in nature, the tenant is poorer to he extent of the rents due he cannot be penalised for default. The rule has been lid down by the Supreme Court in successive judgments of that Court and such new has been expressed in the context of defaults of a more serious nature, that is ) say, under Section 16(2) of the Sind Rented Premises Ordinance envisaging orders of deposits in Court by and up to the prescribed statutory date. SEE IAJOR (RTD) A.S.A.SAMAD VS. LT.COL. (RTD) A HUSSAIN (1987 SCM R 713) and ABDULLAH GHANGRO VS. TAHERA BEGUM (1988 SCMR 70). In view of the documentary evidence, already discussed, it is clear that the deposits in the name of the previous landlord did not involve any contumacy and at the same were the logical outcome of the previously instituted proceedings, sumed by the tenant to be pending, and awaiting due notice under Section 18 of e statute, intimating devolution in favour of successors, who still remained to be reified. The factum of the intervening Money Order is also not in dispute, the ct of the eviction matter being earlier in time than she filing of the Misc. Rent se is of no consequence because the period preceding the ejectment application is duly covered through deposits in the previous rent proceedings, and tender rough .Money Order which was refused on 6.10.1985. The Controller, therefore, only held the tenant to be free of any default.
6. Taking up now the question of personal requirement, it is an un- Overleaped position that the previous landlord, father of the appellants, had sought eviction of the respondent-tenant precisely on the ground that he required the premises for his own use (desirous of moving from the second to the first floor) and that of his son Mohammad Ishaque who was putting up in a rented premises and intended to marry. In these proceedings also the ground of personal requirement is identical because the then landlord is no longer in the picture and the requirement is limited to that of Mohammad Ishaque, who remains unmarried and still intends to marry. It is borne out from the record that ever since the first eviction application tenements in the disputed building-have been falling vacant and are being rented out. The most glaring of relevant examples is the admitted fact that during his life-time the appellants' father was putting up in a second floor tenement from where following upon his father's demise the appellant No. 1 shifted to the ground floor premises.
Mohammad Ishaque appellant was cross-examined on the point but expressed his ignorance whether the second floor premises, resultantly falling vacant, was It out to tenant Qadeer, voluntarily adding that his brother might have done so. Benefit of any plausible reason such was an act of bad faith.
7. Mr. Ali Mohammad Seth has attempted to draw a distinction between letting out of other tenements in the building while the father of the appellant: adorned to the mantle of the landlord and has urged that the requirement of the appellant No.2 is to be judged only since after the devolution of the property 01 the present landlords. In the abstract the proposition may be tenable though n< infallible rule can be laid down on the question. However, in the context of 1h present proceedings the nature of the requirement in the previous litigation an the present one having remained the same previous conduct does not lose a relevancy. At any event, even if previous acts are excluded from consideration, th letting out of the second floor tenement through the brother of the appellant No. (apparently himself appellant No. 1 here) admittedly came about after the demiss of the appellants' father and, therefore, is a fact which has a direct bearing on th present controversy. A question did arise, therefore, for the landlords to clarify < to why the said tenement on the second floor was not occupied by the appellant No.2, when it fell vacant. Mr. Ali Mohammad Seth has referred to MRS. ABDU HAMEED KHAN VS. SHAMSUL HASSAN, (19N8 CLC 2294), where th Court found that a landlord could not be debarred from getting an order ejectment against his tenant simply on the ground lh. It another premises hi fallen vacant during the pendency of the proceedings which wa It out by tl landlord. Learned counsel has also placed reliance on the Supreme Court judgment in HAROON QASIM VS. AZAM SULEMAN MATHA (PLD 19 SC. 394), wherein it was observed that in cases where the landlord possesses mo than one house in the same urban area the choice as to the house in which would like to live is a matter within his prerogative and discretion and law do not give cither the tenant or the Controller the power to determine where t landlord ought to reside. Both these cases lay down eminently correct proposition of law with which there can be no cavil, even if permissible. It must, however, remembered that such are not abstract propositions of law. They must conform the facts on the ground. If at the time eviction is sought in respect of a particular or while proceeding are pending towards that end another tenement building is lying or falls vacant, which the tenent claims to be sufficient for the requirement of the landlord, it becomes an obligation of the landlord to clarify as to why such accommodation is not sufficient or suitable for his purposes. At the same time if satisfactory explanation is rendered by the landlord the Controller is not to make fetish of the technicality arid must resolve the matter on preponderance of evidence attaching due weight to the prerogative and discretion of the landlord. Such alone are the implications of the dicta laying down, as regards personal requirement, that the last would stand established and proved if the landlord enters into the witness box, firstly and unequivocally makes out a case of due requirement and remains unshaken when cross-examined. The conditions of the rule have been demonstrated in the two cited judgment as well. Thus in MRS ABDUL HAMEED VS. SHAMSUL HASSAN the question why the landlord had re-It one of the available premises while pursuing the matter of ejectment in respect of the other was resolved by this Court on accepting his explanation that he was an old, feeble, ailing and a blind man depending on the income from his property as the main source of livelihood and the premises which was re-It was fetching Rs.1800/- per month whereas the disputant tenant Was contributing only Rs.200/- per month in respect of the tenant-hold. In the Supreme Court case of HAROON QAS1M VS. AZAM SUI LEMAN MATHA that Honourable Court meticulously examined the details of those properties which were re-It in comparison with the one in dispute and came to the conclusion th it the re-It premises were comprised in a building consisting of 50 or 60 tenements situated in a pre-eminently commercial area and the reletting took place merely on change of receipts, the landlord never coming to possess or occupy the same. On the other had, the claimed property was situated in a purely residential area, clearly more suitable for the purposes of the landlord's residence.
8. On the same subject it would seem to be in order to add that the availability with the landlord of any additional, alternative or equivalent space of the same nature or characteristic as the premises from which eviction on personal ground is sought whether such be available for recourse before the ejectment case is lodged or falls vacant during the pendency of proceedings, apart from involving aspects of choice/discretion. Is necessarily a matter directly reflecting on the landlord's requirement and. Therefore, being primarily relevant can not summarily be by-passed.
The matter of choice, discretion or prerogative, in its prime form, should apply essentially to such situations alone where more than one tenements are tenanted and have been so tenanted and a choice is made against which one of them to proceed for eviction so as to seek satisfaction of personal requirement. It is essentially there that neither the tenant nor the Controller has much scope for dissertation.
9. Apart from the question of the existence or otherwise of the requirement the most important aspect in such matters is that of the requirement being in good faith, ln the context of establishing personal requirement the first and foremost consideration is that of such being in good faith. It has rightly been pointed out in this Court in the case of MOHAMMAD HUSSAIN FATHAVI VS. AKBAR ALI SHAH (1987 M LD 2360) that the obligation to establish good faith is that of the landlord and it is only when such onus is discharged that it falls for the tenant to rebut it. On the question of good faith Mr. Mehfoozur Rehman has urged that if the personal requirement of the appellant No.2 was one in good faith the landlords at the time of issuance of the notice under Section 18 of the Sind Rented Premises Ordinance would have categorically stated that the tenant- hold was also required by the appellant No.2 for his personal need and that this was not done must reflect on Bona Fides of the requirement. For obvious reasons it is not obligatory for a landlord to issue a notice prior to filing an application for ejectment on the ground of personal requirement, though some kind of intimation may not be altogether out of place. However, where there is correspondence between the parties in one context or the other and if the correspondence is of such a nature that eviction is claimed therein on some ground or the other, not mentioning or omitting to spell-out personal requirement may arguably have relevance and even bearing on the claim of personal requirement. Total absence of such mention in the correspondence, accordingly, may not have a little relevancy in the matter. This, however, does not apply as such in these proceedings because the notice under Section 18 of Ordinance in this case was one expressly under that provision and did not incorporate any claim for eviction on any ground wh-so-ever. Still mention of the requirement at that time would have lent same strength to the Bona Fides.
10. In addition, in this case appellant Mohammad Ishaque has gone to the length of saying that he was not even aware that any previous eviction proceedings for personal need were filed by his father nor that any such proceedings were dismissed. He also denied knowledge of his father's filing an F.R.A, against the orders in such eviction proceedings or that the F.R.A., if any, was dismissed. He, however, has volunteered that he was living separately from his father. Even so, if the requirement in the previous proceedings was also that for himself, as those 'proceedings purported to show, such fact ought to have been known to him. The implications are obvious. The requirement, if any, neither then nor now appears to be in good faith. It has been said before and would bear reiteration that even where a case of personal requirement has been established, the Controller or a Court acting under the Sind Rented Premises Ordinance, 1979, cannot but refuse ejectment in the event the essential pre-requisite of good faith is missing.
11. This was so are as the concept of requirement, pure and simple, is concerned. On the related question of bar of the previous proceedings in the way of Res Judicata it has to be seen that minus the requirement of the then landlord the claim for ejectment in respect of the same premises and against the same tenant by the successsors remains identical. At that time Mohammad Ishaque was unmarried and intended to marry. In the present proceedings as well his marital status remains the same even though so much time has elapsed since the filing of the previous rent case.
There is not a word in evidence to the effect that Mohammad Ishaque had been unable to marry because of non-availability of adequate accommodation. Facts as to personal requirement in the two proceedings thus having remained more or less identical there appears to be no incliner;petition to come to a different finding now when the previous one has attained finality in due course of law. Learned counsel has contended that the doctrine of Res Judicata docs not strictly apply to the proceedings under the Sind Rented Premises Ord nance more so when comparison is made with its precursor statute namely, the Sindh Urban Rent Restriction Ordinance, 1959, where there was a specific provision, per Section 14 thereof, for summary rejection of an eviction matter raising substantially the same issues as had been finally decided in a former proceeding under the same Ordinance. That is correct. Still the notion is internet in all judicial and quasi judicial proceedings. A controversy, which has raged and been finally adjudicated upon between the same parties or those under whom they or any of them claim involving substantially the same issues and the same material cannot ordinarily be reopened. This becomes manifest also on an examination of Section 21(3) of the Sind Rented Premises Ordinance, 1979, itself postulating that the decision of the High Court in appeal "shall be final". Surely, it cannot imply that whereas a decision in appeal shall be final similar finality would not attach to the final orders of Controllers where no appeal is taken against them. This can not be so. To hold otherwise would mean that no finality would ever attach to adverse determinations by Controllers in rent proceedings and all that an unsuccessful petitioner may do should be no more than refraining to prefer an appeal. Filing of a fresh rent case then would be all that may be required and a past and closed transaction shall re-open instantaneously. Plainly such can not be the intention of law, making a mockery of a quasi Judicial process. The doctrine of Res Judicata does, therefore, apply to rent proceedings under the Sind Rented Premises Ordinance, 1979 though not in all its rigours.
See MOHD. TUFAIL VS. ATTA SHABIR (PLD 1977 SC 220).
For the foregoing reasons, there is no merit in this First Rent Appeal. It is dismissed.