1. ' 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. Oasim Patel who was the previous landlord of the tenant-hold. He died on 6-3-1982. Notice under section 18 of the Sindh 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.3049/85 was filed by him and the rent continued to be deposited in the same.
3. Default is still claimed against the tenant.
4. ' The plea of personal requirement was grounded on the fact that the appellant No.2, Muhammad Ishaque, who was unmarried at the time, intended to marry and to shift to the disputed premises upon surrender of the rented premises hitherto 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 plea 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.
5. ' 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.
6. ' Mr. All Muhammad 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 off 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.
7. ' It is in evidence that F.R.A. No.213/80 was dismissed for default of both the parties on 29-5-1983 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 of to 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, remains 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 on 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 facts alone do not offset the effect of section 18 of the Sindh Rented Premises Ordinance, which expressly postulates that where a tenant, on receipt of a notice of 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 the context of the rents due he cannot he penalised for default.
8. ' The rule has been laid down by the Supreme Court in successive judgments of that Court and such view has been expressed in the context of defaults of a more serious nature, that is to say, under section 16(2) of the Sindh Rented Premises Ordinance envisaging orders of deposits in Court by and up to the prescribed statutory date. See Major (Rtd.) A.S.A. Samad v. Lt.-Col. (Rtd.) A.Hussain 1987 SCM R 1013 and Abdullah Ghangro v. Tahera l3egum 1988 SCM R 970. 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 that the same were the logical outcome of the previously instituted proceedings, assumed by the tenant to be pending and awaiting due notice under section 18 of the statute, intimating devolution in favour of successors, who still remained to be verified. The factum of the intervening Money Order is also not in dispute. The fact of the eviction matter being earlier in time than the filing of the Miscellaneous rent case is of no consequence because the period preceding the ejectment application was duly covered through deposits in the previous rent proceedings and tender through Money Order which was refused on 6-10-1985. The Controller, therefore, rightly held the tenant to be free of any default.
9. ' Taking up now the question of personal requirement, it is an uncontroverted 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 Muhammad 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 Muhammad 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 lifetime the appellant's 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.
10. Muhammad Ishaque appellant was cross-examined on the point but expressed his ignorance whether the second floor premises, resultantly falling vacant, was let out to tenant Qadeer, voluntarily adding that his brother might have done so. Bereft of any plausible reason such was an act of bad faith.
11. ' Mr. Ali Muhammad Seth has attempted to draw a distinction between letting out of other tenements in the building while the father of the. Appellants adorned 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 on the present landlords. In the abstract the proposition may be tenable though no infallible rule can be laid down on the question. However, in the context of the present proceedings the nature of the requirement in the previous litigation and the present one having remained the same previous conduct does not lose all relevancy. At any event, even if previous acts are excluded from consideration, the letting out of the second floor tenement through the brother of the appellant No.2 (apparently himself appellant No.1 here) admittedly came about after the demi of the appellant's father and, therefore, is a fact which has a direct bearing on the present controversy. A question did arise, therefore, for the landlords to clarify a to why the said tenement on the second floor was not occupied by the appellant No.2, when it fell vacant. Mr. Ali Muhammad Seth has referred to Mrs. Abdu Hameed Khan v. Shamsul Hassan, 1988 CLC 2294, where this Court found that landlord could not be debarred from getting an order of ejectment against hi tenant simply on the ground that another premises had fallen vacant during the pendency of the proceedings which was let out by the landlord. Learned counsel has also placed reliance on the Supreme Court judgment in Haroon Qasim Azam Suleman Matha, PLD 1990 SC 394, wherein it was observed that in case where the landlord possesses more than one house in the same urban area the choice as to the house in which he would like to live is a matter within prerogative and discretion and law does not give either the tenant or the Controller the power to determine where the landlord ought to reside. Both these cases lay down eminently correct propositions of law with which there can be n cavil, even if permissible. It must, however, be remembered that-such are on abstract propositions of law. They must conform to the facts on the ground. If a the time eviction is sought in respect of a particular tenement or while proceedings are pending towards that end another tenement or building is lying or falls vacant, which the tenant 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 satisfactory explanation is rendered by the landlord the Controller is not to make fetish of the technicality and must resolve the matter on preponderance of evidence attaching due weight to the prerogative and discretion of the landlor. Such alone are the implications of the dicta laying down, as regards person requirement, that the last would stand establkhed and proved if the landlor enters into the witness box, firmly and unequivocally makes out a case of du requirement and remains unshaken when cross-examined. The conditions of the rule have been demonstrated in the two cited judgments as well. Thus in Mr Abdul Hameed v. Shamshul Hassan the question why the landlord had re-let on 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 ole 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-let was fetching Rs.1, :1 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 Qasim Azam Suleman Matha that Honourable Court meticulously examined the detail of those properties which were re-let in comparison with the one in dispute an came to the conclusion that the re-let premises were comprised in a building consisting of $0 or 60 tenements situated in a pre-eminently commercial area an the relating took place merely on change of receipts, the landlord never coming to possess or occupy the same. On the other hand, the claimed property witness situated in a purely residential area, clearly more suitable for the purposes of the landlord's residence.
12. 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 characteristics 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 bypassed.
13. 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 neithr the tenant nor the Controller has much scope for dissertation.
14. ' 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. In 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 Muhammad Hussain Fathavi v. Akbar Ali Shah 1987 M LD 2360 that the obligation to e.Tablish 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 Sindh 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 the Ordinance in this case was one expressly under that provision and did not incorporate any claim for eviction on any ground whatsoever. Still mention of the requirement at that time would have lent some strength to the bona fides.
15. ' In addition, in this case appellant Muhammad 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.RA. Against the orders in such eviction proceedings or that the F.RA., 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 Sindh Rented Premises Ordinance, 1979, cannot but refuse ejectment in the event the essential prerequisite of good faith is missing.
16. ' This was so far 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 successors remains identical. At that time Mohammed 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 4 the previous rent case.
17. 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 justification to come to a different finding now when the previous one has attained finality in due course of law.
18. Learned counsel has contended that the doctrine of res judicata does not strictly apply to the proceedings under the Sindh Rented Premises Ordinance moreso 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 inherent 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 Sindh 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 cannot 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 cannot be the intention of law, making a mockery of I a quasi-judicial process. The doctrine of res judicata does, therefore, apply to rent proceedings under the Sindh Rented Premises Ordinance, 1979, though not I in all its rigors. See Muhammad Tufail v. Atta Shabir PLD 1977 SC 220.
19. ' For the foregoing reasons, there is no merit in the First Rent Appeal. It is dismissed.