1. ' In the year 1987 the respondent filed an ejectment application against the appellant on ground of his personal bona fide requirement and that of his son, daughter, wife and mother. This claim was denied by the appellant but the learned Controller on assessment of evidence granted ejectment application by the impugned order. Mr. Nizam Ahmad the learned counsel for the appellant has contended that the respondent had filed ejectment application earlier which was dismissed and therefore this application was barred by res judicata. Mr. S.A. Jalib Choudhry the learned counsel for the respondent has contended that in the absence of any such provision under the Sindh Rented Premises Ordinance, 1979 as the two applications were on different causes of action and different grounds principles of res judicata will not apply. The first application was filed in 1975 on ground of default, damage to the rented premises and bona fide requirement of the respondent's sons and daughters. In the present application filed by the appellant in the year 1987, the respondent has sought ejectment on ground of his bona fide requirement as he has retired from service in United Nations and has come from abroad for permanent residence at Karachi. He is a heart patient and unable to climb upstair as he is occupying the first floor of the same house. As his wife is ill and mother is an old lady of 75 years it is difficult for them to climb upstair. Further he wants the ground floor premises for his residence and the residence of his wife and mother and daughter. On the first floor he wants to accommodate his son after his marriage which is held up. A perusal of the averments made in the applications filed by the respondent will show that the causes of action in both of them are completely different and therefore question of applying principle of res judicata does not arise. Although there is no provision like section 14 of West Pakistan Urban Rent Restriction Ordinance in Sindh A Rented Premises Ordinance yet the principles of res judicata will apply for fair administration of justice and to bring finality to litigation. No party can be allowed to litigate twice on the same cause of action if those disputes have been decided by a Court of competent jurisdiction. However this principle will not apply to the facts of the present case where cause of action in both the applications are different.
2. ' Mr. Nizam Ahmad then contended that the appellant's evidence was illegally shut out by the learned Controller. It was pointed out that the respondent had filed documents with affidavit in evidence admissibility and proof of which were challenged before starting cross-examination. The learned Controller made a note that such objection regarding admissibility and proof of the documents shall be considered at the time of final hearing. The learned counsel contended that as no witness was produced to prove the medical certificates and reports, the appellant filed an application for summoning Dr. Hassan and also an Estate Broker to establish that the ground of illness pressed by the respondent and the documents produced by him are false and that respondent had been negotiating for sale of the disputed property to the appellant for Rs,40,00,000 but as the transactions failed he filed ejectment application. This application was dismissed by the learned Controller on 28-11-1987. According to the learned counsel for the appellant by this order material evidence sought to be produced by the appellant has been shut out and therefore the order suffers for infirmities and is liable to be set aside. The application for summoning the witnesses was moved by the learned counsel for the appellant at a stage when the respondent had closed his side. In the application and the affidavit no reason for summoning the witnesses has been given. Under section 19 of Sindh Rented Premises Ordinance, 1979 procedure for proceeding with the rent cases has been provided. Section 19 (4) provides that: "A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such party shall have the right to cross-examine."
3. Therefore initially the party which requires to produce evidence should file affidavit of such witness through whom he wants to prove his case. The appellant did not produce any affidavit of witness sought to be summoned nor there is any averment in the application or in the affidavit that these witnesses had refused to give their affidavit in evidence. Furthermore the plea sought to be proved by the learned counsel through the Estate Broker was not pleaded in the written statement. So far the doctor is concerned the appellant only wanted his opinion on the documents filed by the respondent about his illness. This would neither prove nor disprove any fact at all. In these circumstances in my view the application for summoning witnesses was rightly rejected.
4. ' Coming to the merits of the case the learned counsel for the appellant contended that illness pleaded by the respondent has not been proved as the documents filed by him were not proved through the doctor who had issued them. Mr. Jalib Choudhry the learned counsel for the respondent contended that it was not necessary to produce the doctor who had issued those documents as by producing them with the affidavit they stood proved, particularly as Sindh Rented Premises Ordinance while providing a special procedure for evidence does not require such method of proof. Section 19 has prescribed a special procedure for recording the evidence and proving the rent case. It does not in any manner override or exclude the applicability of Qanun-e- Shahadat which is applicable to all proceedings before the Courts and prescribes a method for proving a particular document or fact. If a party objects to the admissibility and proof of a document filed by the other party, it is the duty of the party producing it to prove that document as provided by Qanun-e-Shahadat. It would not be sufficient to file the document with the affidavit and then contend that the documents have been proved. If such a procedure is allowed then it will provide an open platform for producing forged and fictitious documents without any challenge.
5. Such procedure was never intended by the Ordinance nor it will be permissible by any principle of law unless it is so specifically provided.
6. We have now to see whether the respondent has proved his illness. He has stated that he was a personnel from the C.S.P. Serving abroad and sought retirement earlier because of his ill health. In his evidence he has stated that he had suffered heart trouble and had consulted the doctor who had treated him. He has produced the electro-cardiogram taken out from time to time. According to his statement in one of the reports it has been indicated that he had suffered infraction. This statement has been supported by the affidavit produced by his son. Therefore even if the medical reports are excluded from consideration, it is sufficiently established that the respondent has suffered heart trouble. He states that in this condition climbing upstairs will be harmful and therefore he requires the ground floor premises. The illness which has been alleged and sufficiently established is bound to be taken into consideration for his claim for the ground floor premise An old man suffering from heart disease is bound to exhaust by climbing stairs.
7. ' But this is not the only ground for ejectment as the respondent has pleaded that his wife is also ill and cannot climb the first floor, So is the case with his mother also. Mr. Nizam Ahmad the learned counsel for the appellant has contended that the term 'personal use' has been defined in section 2
(g) which does not cover the requirement of the mother. Section 2 (g) reads as follows:-- "personal use' means the use of the premises by the owner thereof or his wife (or husband), son or daughter."
8. ' According to the learned counsel when the premises is required for personal use it will cover the use by the owner, his wife or husband, son or daughter but will not include the mother. The ejectment has been sought under section 15 (2) (vii) which reads as follows:-- "15(2) The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:
(vii) the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children."
9. It is significant to note that the term 'personal use' has not been used in it. Therefore to import the definition of 'personal use' will not be relevant for the purposes of excluding the mother from section 15 (2) (vii). The words used are `his own occupation or for the occupation or use of his spouse'. Therefore the question is whether the words 'his own occupation' can be interpreted to include occupation by mother and father. The need of a landlord for his own occupation is to be judged from his social, cultural, moral and legal obligations cast upon him. So far a `muslim' is concerned he is obliged to maintain his parents. He cannot deny this obligation enjoined upon him by Holy Quran. A son is obliged to maintain and provide accommodation to his parents particularly old parents. The need of the parents of a landlord will be the need of the landlord provided the parents reside with the landlord. In this regard reference can be made to Asif v. Raisa Khatoon PLD 1988 Kar 363 where referring to section 15(2)(vii) the following observation was made: `It is true that the above clause does not mention any other close relation than the spouse and the children, the effect of the above omission would be that a landlord will not be entitled to apply for ejectment on the ground of personal requirement of any other relations than those mentioned in the above clause independently but if the other close relations have been living as members of the family, the personal requirement of the landlord or the landlady would include the provision for the above close relation. It is not uncommon that the married sons keep their parents with them. In my view, it cannot be urged that a married son is not entitled to include in his personal requirement a provision for his parents. A distinction is to be drawn between relations mentioned in the above clause and the relations, who are not covered by the above clause. In the case of former a landlord may apply for ejectment on the ground of independent personal requirement of his spouse or for anyone of his children, but in the latter case the landlord cannot seek ejectment on the ground of independent personal requirement of any of his relations not covered by the above clause.
10. However, a landlord's personal requirement may include the requirement of his any close relation, who has been residing with him as a member of his family. If any authority is needed reference to the case of Wali Muhammad v. Zainab Khatoon, reported in 1983 CLC 321 and the case of Messrs Tiger Wire Product Ltd, v. S. Abrar Hussain reported in 1983 SCM R 402 may be made."
11. ' Reference can be made to the Commissioner of Income-tax Central Zone Karachi v. Mushtaq Ahmad 1989 PTD 1 where the question arose whether the term 'his own residence will cover the residence and occupation by the parents of the owner. Speaking for the Bench I had observed as follows: "The learned counsel for the Department desires to restrict the meaning of the expression 'his own residence' to exclusively personal occupation and residence of the assessee. If this limited meaning is accepted then even the occupation and residence of assessee's wife and children will be excluded. The term 'his own residence' cannot be given a limited construction to restrict it to the person of the assessee only.
12. ' It has to be given a liberal meaning to include members of the family like assessee's wife, children, parents and such dependent blood relations who are residing with him as his family members.
13. ' A man cannot be expected to live in seclusion detached from his social, moral, legal and religious obligations nor can he be expected to completely exclude his family members from the enjoyment of his property particularly when he is legally bound to maintain, provide shelter and abode to them. While interpreting the provision under consideration one cannot close his eyes to the realities of life and human and social aspects of our day to day life. Considering from this aspect one would be reluctant to give a limited and restricted interpretation to the term 'his own residence' to exclude husband, wife, children, parents and dependent blood relations living with the assessee.
14. ' The meaning of the term 'his own residence' has also to be considered in the social, economic and religious background of the assessee. This is an era of renaissance of Islam and we would be failing in our duty if the question relating to personal and family life of a Muslim is not interpreted in the light of Injunctions of Islam. Keeping this principle in view while interpreting the term 'his own residence' and 'family members' the legal, social and religious obligations of the assessee have to be given due weight. It is now well settled that the words 'own residence' will include the family members of the owner as well. Therefore, it has to be seen whether as in the present case the parents can be called family members and their residence in the house owned by their son can be treated as his own residence. The assessee is a Muslim and, therefore, the obligations which are enjoined upon him under the injunctions of Holy Qur'an should be obeyed and followed by him. In this regard it may be mentioned that the Holy Quran enjoins a Muslim to be kind and respectful to his parents and also to maintain them. This is a message of universal application irrespective of caste, creed or religion. It is the duty of the son to provide shelter, abode, maintenance and comfort to his parents. They are members of his family and cannot be separated as a separate and distinct family unit. In this regard reference can be made to Muhammad Nawaz and four others v. Altaf Rasool and others PLD 1985 Karachi 353. This was a case under Fatal Accidents Act where question arose whether in the case of accidental death of a boy aged eight years the parents can claim compensation. Naimuddin, J. (as he then was) repelling the contentions based on the judgments which had followed English cases that parents of a minor son cannot be termed to have suffered any damages and were not entitled to compensation, observed: ' Lastly, the answer to the question whether the child would have been helpful or useful to his parents or not, would also depend on the social or economic conditions in which it was professing, for in oriental or Muslim society service to or maintenance of parents by their children or vice versa is a must as it is an article of faith with every member or Muslim family. Here I may quote English translation of three versesfrom Holy Qur'an which enjoins every Muslim to be kind and give company to parents, which in my opinion, imply material support and maintenance: "The Lord hath decreed ' That ye worship none but Him, And that ye be kind To parents. Whether one Or both of them attain Old age in the life, Say not to them a word Of contempt, nor repel them, But address them In terms of honour.' (S. XVII-23).
15. "And kind to his parents, And he was not overbearing or rebellious." (S.XIX-14)
16. "We have enjoined on man Kindness to his parents. In pain did his mother Bear him, and in pain Did she give him birth. The carrying of the (child) To his weaning is (A period of) thirty months. At length, when he reaches The age of full strength And attains forty years, He says 'O my Lord Grateful for Thy favour which thou hast bestowed Upon me, and upon both My parents, and that I May work righteousness Such as Thou mayest approve, And be gracious to me. In my issue, Truly.
17. Have I turned to Thee And truly do I bow (To Thee) in Islam." (S.XLVI-15)
18. ' Further, it is common experience that in Muslim society poor parents and other members of the family are normally maintained by their children and parents also maintain their children irrespective of their ages till they (children) start earning.
19. ' The rule propounded by Islamic Law for maintenance of the parents may equally apply not only to Muslims but to the entire Universe as it is a rule of justice and affords security to the old parents mostly those who may be dependent.
20. ' In view of the above discussion we are of the view that the term 'his own residence' will include the residence and occupation of the house by the parents."
21. On the same reasoning requirement for residence of the mother who is residing with the landlord or is to reside with him will be covered by section 15 (2) (vii). It is not denied that the mother is an old lady. It has been pointed out by the advocate for the appellant that she is residing with her daughter on the first floor. This may be so because the respondent had been abroad in service and she had no option but to reside there. But now as the respondent has come back to Pakistan, the mother would like to reside with his son. In our social and cultural background the sons are required to maintain their parents and not the daughters. Therefore in these circumstances if the respondent wants the premises for his residence as well as for her mother it is covered by the term 'his own use'.
22. The respondent requires the premises for his daughter and for his son also. So far as the son is concerned admittedly at the time of filing the ejectment application he was of a marriageable age and was to be married. The respondent wants to accommodate him on the first floor and he himself would reside with his mother, wife and daughter on the ground floor. Mr. Nizam Ahmad has contended that the son has been married and he is residing in another house and has G produced an additional affidavit. Firstly such an affidavit cannot be entertained as evidence and secondly even the documents produced do not show that the house in which he is allegedly residing belongs to the respondent or his son. The respondent's son has filed his affidavit supporting him.
23. The need of his son and daughter has been fully established.
24. The learned counsel for the appellant contended that the requirement is not bona fide as before the ejectment case was filed the respondent was negotiating for sale of the house and had demanded Rs,40 lacs but as the negotiation failed he filed this case. This plea was not taken in the written II statement and furthermore mere negotiation for sale cannot be a circumstance which militates against the bona fide of the landlord. The over all evidence produced by the respondent is consistent and supported by the witnesses. I am therefore of the view that the respondent has succeeded in making out a case for his requirement and for the requirement of his family members enumerated above. The impugned order does not require any interference. The appeal is therefore dismissed. The appellant is granted four months time to hand over vacant possession of the disputed premises to the respondent.