' This Constitutional petition arises out of order dated 18-41970 passed by the Member (Consolidation), Board of Revenue, Lahore, whereby on a revision petition filed by Fazalur Rehman Mahmood Khan, respondent No,9, against the order dated 31-3-1969 of the Additional Commissioner (Consolidation), Lahore Division, Lahore, he directed that Khata Nos.28 and 29 be reverted to their original position as existed prior to consolidation. He remanded the case to the Additional Deputy Commissioner (Consolidation), Sheikhupura, for fresh decision with further direction that out of Khata Nos.28 and 29 if some land was allotted to any other land owner, he be heard and allotted land at some other suitable place.
2. Learned counsel for the petitioner contended that the consolidation operation in the Chak No,4/RB, Tehsil and District Sheikhupura, concluded in the year 1967. None of the owners of the village preferred appeal against the consolidation of the holdings. After lapse of about two years one application was moved by respondent No,9 for change of the possession of the land allocated to him during consolidation. The Assistant Consolidation Officer vide order dated 27-1-1969 delivered possession of the land allotted to him out of square No,16. This order was challenged in appeal by Mst. Nazir Begum before the Additional Commissioner (Consolidation), who vide order dated 313-1969 remanded the case to the A.C.O., Sheikhupura. This order was assailed in revision by Fazalur Rehman Mahmood Khan, respondent No,9, as aforesaid, hence this petition.
3. Learned counsel for the petitioner contended that as no appeal against the confirmation of the consolidation scheme was preferred, the learned Member, Board of Revenue could not direct the reversion of Khata Nos.28 and 29 to the original owners as it existed prior to consolidation particularly when none was aggrieved against the Vandas allocated to them during consolidation operations. It was argued that if the impugned order had been acted upon, it would have given rise to number of appeals and engaged the land owners in protracted litigation.
4. No one has appeared to oppose this petition. Syed Muhammad Kaleem Ahmad Khurshid, Advocate, appearing on behalf of respondent No,9 supported the contentions raised by learned counsel for the petitioner.
The perusal of the impugned order substantiates the contention raised by learned counsel for the petitioner that the order is untenable particularly when no appeal against the confirmation of the consolidation scheme was filed inter se the parties. It is, therefore, neither just nor legal to allow the settled matters to be reopened after lapse of over two decades specially when the land owners must have invested in the development of theix lands after consolidation.
5. In the result, this petition is allowed, the impugned order passed by the learned Member, Board of Revenue, is declared to be without lawful authority and is of no legal effect. As no one has contested this petition, there shall be no order as to costs.
Petition accepted.
1992 L C 539 [La ore] Before Tanvir hmed Khan, J MUHAMMAD ASLA and another---Petitioners versus KHUDA BAKHSH NANGIANA and 2 others---Respondents Writ Petition No,4667 of 1985, decided on 26th March, 1990.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S. 14---Earlier ejectment application filed against tenant was subsequently withdrawn---Fresh ejectment application-Competency-Provision of S.14 of Ordinance VI of 1959, postulates that ejectment application on an issue would only be barred where application on the same issue had earlier been decided on merits between the same parties---Previous ejectment application having not been decided on merits, would not bar fresh ejectment application. [p. 541] A Allah Rakha v. Muhammad Shafi 1978 SCM R 437 and Sh. Muhammad Ibrahim Kohli v. Additional District Judge etc. 1989 CLC 49 rel.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S. 14--Civil Procedure Code (V of 1908), O.XXIII, R.1---Provisions of R.1, Civil Procedure Code, whether applicable in ejectment proceedings---West Pakistan Urban Rent Restriction Ordinance, 1959, being a special law has got its own special procedure---Section 14 of the Ordinance had conferred limited powers upon Rent Controller respecting summoning of witnesses and compelling production of evidence under the Civil Procedure Code, 1908---Limited applicability of Civil Procedure Code, 1908, would demonstrate that Rent Controller was not a Court in the strict sense and as such provisions of O.XXIII, R.1, C.P.C. Could not be availed of---Provisions of O.XXIII, R.1, Civil Procedure Code, 1908 thus, would not be attracted in proceedings before Rent Controller. [p. 541] B
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S. 13---Constitution of Pakistan (1973), Art.199---Requirement of premises for bona fide need of landlord-Proof-Question whether or not premises were needed by landlord for his bona fide requirement, being purely a question of fact, had rightly been deduced by Appellate Court from the evidence on record---Tenant had failed to rebut the bona fide requirement of landlord for his personal use---Interference with impugned judgment was declined in circumstances. [p. 542] C & D Bashir Ahmad v. Additional District Judge, Gujrat and 2 others 1985 CLC 2485 rel. Muhammad Ghani for Petitioners. S.M. Masud for Respondents.
' This Constitutional petition is directed against the judgment dated 21-7-1985 passed by the learned Additional District Judge, Lahore, whereby he had accepted the appeal of respondent No, 1 against the judgment dated 15-7-1984 of the learned Rent Controller, Lahore and ordered the eviction of the petitioner from the disputed premises.
' The facts briefly are that the respondent No,1 filed an ejectment application against the petitioner on 10-6-1981 on the ground of default in the payment of rent, subletting a portion of the tenanted premises and bona fide requirement of the property.. The petitioner controverted the stance. The following issues were framed:
(1) Whether the petition is barred under section 14 of the Urban Rent Restriction Ordinance? OPR
(2) Whether the petitioner is estopped by his words and conduct from filing the petition? OPR
(3) Whether the petition is false, frivolous and mala fide? If so, whether the respondent is entitled to compensatory costs? If so, to what extent? OPR
(4) Whether the respondents are defaulters in payment of monthly rent? OPA
(5) Whether the respondents have sublet a portion of the premises in dispute? If so, its effect? OPA
(6) Whether the petitioner bona fide requires the premises in dispute for his personal use and occupation? OPA
(7) Relief.
' The learned Rent Controller vide his order dated 15-7-1984 dismissed this application. Aggrieved with the same the respondent No,1 filed an appeal which was accepted by the learned Additional District Judge, Lahore vide his order dated 21-7-1985 who ordered the eviction of the petitioner.
Hence this Constitutional petition.
' The learned counsel for the petitioner has firstly argued that respondent No, 1 earlier filed an ejectment petition against the petitioner on 18-6-1980 on identical grounds. But the same was withdrawn on 7-6-1981 without seeking any permission to file fresh application. It is argued that the second ejectment application on the same grounds was barred in view of section 14 of the Rent Restriction Ordinance. He has also argued that though provisions of Order 23 Rule 1, C.P.C. Are not strictly applicable to the proceedings under the Rent Restriction Ordinance but the same are followed and hence the instant application on these principles would not be maintainable. It is next argued that the bona fide requirement of the disputed premises has not been established on record.
' I have considered the contentions minutely. The first ground of the learned counsel for the petitioner that earlier an identical ejectment application was filed which was subsequently withdrawn without seeking permission to file fresh application is devoid of any force. Section 14 provides as under:-- "The Controller shall summarily reject any application under subsection (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance."
The reading of this section makes it clear that an ejectment application on an issue would only be barred if an application on the same issue had earlier been decided on merits between the same parties. In this case the petitioner has ' failed to point out any earlier application of the respondent No,1 qua the petitioner which has already been decided on merits on the ground of bona fide personal requirement. Reliance in this regard is placed upon Allah Rakha v. Muhammad Shafi (1978 SCM R 437) and Sh. Muhammad Ibrahim Kohli v. Additional District Judge etc. 1989 CLC 49.
The other ground that the ejectment petition shall be barred in view of the provisions of Order 23, Rule 1, C.P.C. Is devoid of any force. Punjab Rent Restriction Ordinance, 1959 is a special law. It has got its own special procedure. The Ordinance through section 16 has conferred limited powers upon the Rent Controller respecting the summoning of the witnesses and compelling the production of evidence as are vest end in a Court under 'the Code of Civil Procedure. This limited applicab1ity of Code of Civil Procedure would 'demonstrate that the Rent Controller is not a Court in the strict sense and as such the question of applicability of the provisions of Order 23, Rule 1 would not arise. It is true that the Rent Controller in the absence of" my provisions in the matter of procedure can follow equitable principles contained in the Code of Civil Procedure. But that does not mean that he would follow the stringent provisions of Order 23, Rule 1, C.P,C. In spite of the presence of section 14 of Punjab Rent Restriction Ordinance which has regulated his power in case of successive applications. It has clearly been provided in section 14 of the Ordinance that the Rent Controller would only be competent to reject a subsequent application provided an earlier application substantially raising the same issue had been decided between the parties. This being the situation principle of Order 23, Rule 1 as argued by the learned counsel for the petitioner would not be attracted to the facts of this case.
' As far as the genuine requirement of the premises is concerned, that has been established through testimony produced by the respondent No,1. It has been unequivocally stated by the respondent that he needs the disputed property for his bona fide personal requirement. To substantiate the same he has deposed that he needed the property to look after his grown up daughters who are studying at Lahore. He has further stated that he will get her daughters admitted in hostel while he himself would stay on the upper flat of the property in dispute. He has also stated in categorical terms that he wanted to do the business of Arhat in the disputed shop. It has also come on record that respondent No,1 had earlier dealt with in the business of Arhat 8/9 years earlier. His bona fide requirement cannot be brushed aside simply on the ground that he wanted to have the services of a Munshi in the business of Arhat which he intended to start in the disputed shop. The question whether or not the premises is needed by the landlord for his bona fide requirement is purely a question of fact. Which has rightly been deduced by the learned First Appellate Court from the evidence of respondent No,1 in unequivocal terms. This aspect of his bona fide requirement has further been fully corroborated by the other two witnesses, namely, Ch. Ghulam Hassan P.W.1 and Malik Masoom All P.W.2. The petitioner through his evidence has failed to rebut the bona fide requirement of the respondent for his personal use. Reliance in this respect is placed upon the case of Bashir Ahmad. v. Additional District Judge, Gujrat and 2 others (1985 CLC 2485), wherein it has been held that a solitary statement of a witness can be made the basis of eviction on the ground of personal requirement provided it rings true. For what has been stated above, I see no reason to interfere in my Constitutional jurisdiction in the impugned order and accordingly dismiss this writ petition with no order as to costs.