1. ' This ' is tenant's appeal against an order of eviction passed on 11-11-1987 by the Ist Senior Civil Judge and Rent Controller, Karachi West in Rent Case No. 1300 of 1986.
2. ' Admittedly, appellant Mir Shaukat Faizi is in possession of the house in litigation bearing No. R-416 Block 16, F.B. Area, Karachi, which belonged to Mst. Rahat Parveen who gifited the same to respondent Mst. Nighat Bashir.
3. ' Prior to this Mst. Rahat Parveen had filed Rent Case No. 1321 of 1980 in the Court of a Rent Controller at Karachi for eviction of the appellant from the house in litigation on the grounds that the premises were required for her personal bona fide use and occupation and that the appellant had infringed the .conditions on which the disputed premises were let out to him. Said rent application was contested by the appellant but the same was dismissed by the Rent Controller. Mst. Rahat Parveen filed F.RA. No. 1160 of 1982 against the dismissal of her rent application in this Court. In this Court only ground urged for eviction of the appellant was that Mst. Rahat Parveen required the premises bona fidely for personal use. Said appeal was, however, dismissed on 1-12-1985.
4. ' Subsequently, Mst. Rahat Parveen gifted the disputed house to her daughter Mst. Nighat Bashir who is respondent in this appeal. Respondent filed Rent Case No. 1300 of 1986 for eviction of the appellant on 28-10-1986. She sought eviction on the ground of bona fide personal requirement. The rent case was contested by the appellant who filed his written statement. The Rent Controller after recording evidence of the parties passed the impugned order by which eviction of the appellant was ordered and the appellant was given 90 days to vacate the premises. Hence this appeal.
5. ' Mr. Khalid Javed, learned counsel for the appellant argued that the ground of bona fide perosnal requirement taken in the presnent rent case was also taken in Rent Case No. 1321 of 1980 filed by Mst. Rahat Parveen and that judgment delivered by this Court in the appeal filed by Mst. Rahat Parveen had become final and as such present application was barred by res judicata. It was next argued that present application filed by the respondent was not bona fide as would appear from the circumstances of this case where daughter has been substituted for mother, with a view to make another attempt for possession of the disputed premises. In support, learned counsel for the appellant cited the cases of :--
(i) Bashir Ahmed v. Islam and others 1987 CLC 1976.
(ii) Muhammad Anwar v. M/s. Associated Trading Company Limited and others PLD 1987 Kar.
6. 535.
(iii) Khalilur Rahman v. Controller of Post Offices, Karachi and others 1987 CLC 333.
(iv) Muhammad Azizullah v. Abdul Ghafoor 1984 CLC 2837.
7. ' Mr. Malik Muhammad Said, learned counsel for the respondent argued that the previous case was filed by mother of the respondent some 10 years back and that circumstances had changed since filing of the previous case and that the number of childem had increased and family of the respondent had increased from 2 to 4 and as such the doctrine of res judicata would not apply. It was next argued that the respondent was living with her brother in a three-roomed house, which was not sufficient for three families and their children. Lastly it was argued that the respondent being owner of the disputed house had a Constitutional right to live in her own house. In support leanred counsel for the respondent cited the cases of
(i) Pir Bakhsh and others v. Chairman, Allotment Committee and others PLD 1987 SC 145.
(ii) Sarwar Hussain v. Ghulam Qadir 1981 SCM R 593.
(iii) Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111.
(iv) M/s. Paramount Hosiery Mills Ltd. v. Syed Mustafa Hyder PLD 1984 Kar.
8. 143.
(v) Miss Afifa v. MA. Saleem Khan and another 1984 CLC 1995.
9. ' In respect of the point of res judicata it was observed in the case of Bashir Ahmed 1987 CLC 1976 that a finding rendered on a fact in issue by a competent Court in earlier proceedings should be regarded as having been finally decided in a subsequent litigation raising the same issue between the same parties, even if a mixed question of fact and law had been determined between the same parties. In the case of Muhammad Anwar v. M/s. Associated Trading Co. Ltd. and others PLD 1987 Kar. 535 the view taken was that applicability of section 11 of C.P.C. is not restricted only to suits. It was also observed that section 11 of C.P.C. is not exhaustive and the principles of res judicata can be invoked in respect of proceedings to which it does not strictly apply. In the case of Pir Bux and others v. Chairman, Allotment Committee and others PLD 1987 SC 145 it was observed that in a controversy raising a dispute inter parties, the thing adjudged is conclusive as between the parties both on question of fact and law, but as to what the Court decides generally is the ratio decidendi or rule of law for which it is the authority. In the same case it was also observed that it would be obviously impracticable if there was no end to litigation and if either party to a legal dispute was at liberty to reopen the dispute at any time and hence the law provides that once a case has been heard and all appeals have been taken, all parties to the dispute and their successors are bound by the Court's findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues and such matters are res judicata between them and cannot be the subject of further dispute. In the same case an observation has been taken from the case of Asma Jilani PLD 1972 SC 139 to the effect that in spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can Courts become mere slaves of precedents. In the instant case the theory of res judicata would not apply if there has been material change in the facts and if cause of action has accrued to the respondent to file the rent application, after end of the litigation between Mst. Rahat Parveen and appellant Mir Shaukat.
10. ' In support of the rent application there were affidavits of Mst. Nighat Bashir Exh. A/1 and her brother Iqbal Wazir Ahmed Khan Exh.A/2. Mst. Nighat Bashir said in her affidavit that she was living with her two minor sons in a house belonging to her brother Iqbal Wazir Ahmed Khan where her parents and Iqbal Wazir Ahmed Khan were also living while her husband was in Saudi Arabia.
11. Respondent Mst. Nighat Bashir added that after transfer of the disputed house in her name she informed the appellant through a notice dated 26-6-1986 that she wanted to live in her own house where she could live independently. She has not asserted in her affidavit if any material change has taken place since decision of the previous Rent Application No. 1321/80. In her cross- examination the respondent admitted that in the previous rent application the ground was taken about her personal requirement. Respondent added that in the previous rent case she had given evidence to the effect that she was living in the house owned by her father and that such house was subsequently gifted to her brother. She filed copy of ExhA/6 of her affidavit in the previous rent case, where she stated that she was living in her father's house, with her husband, her minor son, her mother and her brother Iqbal Wazir Ahmed Khan. In that affidavit she added that her brother Khalid Wazir was living separately, while her three brothers were in Norway and that the house in which she was living was not sufficient to cater to the needs of the family. Respondent further stated in her cross-examination that she was residing with her parents from the beginning and that there were five rooms in their house. Respondent also examined Iqbal Wazir Ahmed Khan whose evidence is similar to that of the respondent. He filed, copy ExhA/7 of his affidavit filed in the previous Rent Case No.1321 of 1980. Thus in Rent Case No. 1321 of 1980 affidavits of Mst. Rahat Parveen, Mst. Nighat Bashir (copy ExhA/6) and Iqbal Wazir Ahmed (copy ExhA/7) were produced in evidence from side of Mst. Rahat Parveen. But all this evidence was not considered sufficient for a finding in favour of Mst. Rahat Parveen about her bona fide personal requirement and her rent application was dismieed on 13-114982 and such dismissal was maintained by a learned Single Judge of this Court in F.RA. No. 1160 of 1982 decided on 1-12-1985. In the judgment of F.RA. No.1160 of 1982 it was observed as below: ' From the pleading and the evidence it seems that ground has been shifted from time to time. The requirement of the appellant, her husband, her son, daughter and son-in-law and their minor child is not the same as stated by Iqbal Wazir."
12. ' It was also observed: "In the present case the appellant's statement seems to have been varied in cross-examination.
13. From the need of six persons in his affidavit of evidence, in cross-examination it has been reduced to about two persons and a minor child. It seems that the statement of the appellant and her .witnesses has been varied from time to time. In these circumstances I am not inclined to accept the statement of these witnesses so far the need and requirement is concerned."
14. ' Lastly it was observed as below : "Now taking up the case as pleaded in the application the present accommodation consists of three big rooms and one study room whereas there are three big rooms and two verandas in the disputed house.. There is hardly any material difference in the accommodation provided in both the houses. If the entire family can live in the disputed house it can also conveniently continue to reside in the existing house."
15. ' In the previous Rent Application No.1321 of 1980 requirement of the present respondent was urged and it was observed that according to the custom and conditions prevailing in our country the married daughter is expected to reside with her husband separately but where a married daughter requires the accommodation genuinely the landlord should clearly and specially state material facts in the application and also establish in evidence requirement of the premises for the married daughter but Mst. Rahat Parveen had put up a separate claim for her daughter Nighat Bashir which was not consistent with the averments made in her Rent Application No. 1321 of 1980. In the previous case note was taken in the appellate judgment that one of the conditions of marriage of Mst.
16. Nighat Bashir was that her husband would reside with her parents and it was held that in presence of said condition there was no question of Mst. Nighat Bashir and her husband residing separately and as such claim of Mst. Rahat Parveen that the premises were required for separate residence of her daughter was completely blown out. The facts as discussed in the appellate judgment of the previous case, have not undergone any change much less material change, except that the premises in litigation are shown to have been gifted by Mst. Rahat Parveen to now respondent Mst.
17. Nighat Bashir, through a declaration of gift rather than a registered gift deed. This change does not warrant taking a view different from the one taken in the appellate judgment of the previous case.
18. ' The authorities cited on behalf of the respondent do not further her case. In the case of M/s. Paramount Hosiery Mills Ltd., Karachi PLD 1984 Kar. 143 the landlord in his previous application produced no furhter evidence in support of his claim, for using the premises for his personal use, but in his subsequent application for ejectment he pleaded that the premises were required for his grown up son and the second application was held to be not barred by res judicata. In the case of Muhammad Yasin 1985 CLC 2111 it was held that if there was no cross-examination on a fact deposed in examination in-chief, presumption would be that evidence had been accepted by party against whom it was given. In the present case the evidence given by the respondent and her brother have been challenged in the cross-examination and there is evidence in rebuttal. In the case of Sarwar Hussain 1981 SCM R 593 it was held that concurrent finding about subletting based on documentary and oral evidence, was not open to interference in second appeal. In the case of Miss Afifa 1984 CLC 1995, the personal requirement was pleaded in second application for ejectment with a new cause and it was held that dismissal of previous application would not bar second application by res judicata. In this way the authorities cited contained facts which were materially different from the facts of the instant case.
19. ' In the instant case the evidence laid by the respondent was also laid in the previous rent case but the same was not considered sufficient for ordering ejectment of the appellant. There is force in the contention of learned counsel for the appellant that respondent has been substituted for her mother, with a view to obtain the order of eviction against the appellant. In this way respondent can not be said to have come to the Court bona fidely.
20. ' For all these reasons I accept this appeal and set aside the order of eviction and order dismissal of the rent case.