1. ' Both these are landlord's appeals. In F.RA. No,849 of 1988, called into question is a decision of the learned 1st Senior Civil Judge and Controller, Karachi (Central), dated 29-8-1988, in Rent Case No,347 of 1988 (old R.C. No,998 of 1986 instituted on 4-9-1986) where under negative findings have been returned on all the three issues raised viz. Default in payment of rent, subletting and bona fide personal requirement.
2. ' While F.RA. 849 of 1988 pertains to an adjudication under Section 15 of the Sindh Rented Premises Ordinance, 1979, connected F.RA. 85 of 1989, also disposed of through this common order, relates to subsequent proceedings under Section 14 of the same Ordinance in Rent Case No,359 of 1988 (old R.C. No,586 of 1987 filed on 20-5-1987), decided by the same learned Controller on 29-8-1988, again declining eviction on the ground of personal need under the special provisions of Section 14 ibid. First Rent Appeal No,849 of 1988.---It would be convenient to take up F.RA. 849 of 1988, embracing proceedings under section 15, first: the relevant rent case. Initially invoked the summary procedure under Section 14 of the Sindh Rented Premises Ordinance, 1979, but apparently because the grounds of default and subletting were clubbed together with the personal requirement of the landlord and his family, the proceedings, on an application of the landlord, were allowed to be converted under section 15 of the Ordinance. No objection as to such procedure was raised before the learned Controller and none is registered here by the respondents. This, therefore, is a closed chapter. At the trial the contestants examined only themselves. On the question of default, the Controller has rendered a negative finding largely because the landlord had withdrawn an earlier rent case bearing R.C. No,416 of 1986 and, in the view of the learned Controller, the issue of default, in the face of such withdrawal, could not be re-agitated. No discussion as to merits on this ground is to be found in the impugned order of the learned Controller. Learned counsel for the respondents-tenants conceded before me that, on the state of law, mere withdrawal of a rent case or dismissal thereof in default of appearance would not IPSO FACTO attract the doctrine of res judicata for the purposes of subsequent adjudication involving a similar ground. This seems to be the correct position at law. As regards the general principle of res judicata in rent cases, covered by Section 14 of Ordinance VI of 1959, refer Ashraf Mahmood v. Abdul Malik, 1984 M LD 1077 and Abdul Salam v. Banaras Khan, 1989 SCM R 98 etc. In the Sindh Ordinance of 1979, applicable here, there is, however, no equivalent of Section 14 ibid and the doctrine of Res Judicata can be invoked only on equitable considerations, leaving little room for technicalities. Now, on principle and authority in order that an earlier decision, covering the same issues, between the same parties or between parties under whom they or any of them claim, should operate as res judicata in a subsequent trial the earlier decision must be on merits. This is where section 11 of the Code of Civil Procedure applies with full force. However, the principle, being equitable in nature and policy of law being that a person may not be vexed twice for the same cause, has been applied to rent proceedings, in spite of absence of express statutory mention in the Sindh Rented Premises Ordinance of 1979: S.M. Hayat v. Ikramul Haq Malik, 1984 CLC 3176. Similar results as under section 11 follow upon section 12(1), Order IX, rule 9 and Order XXIII, Rule 1 (abandonment of claim) of the Code, which provisions, partaking of the rule of res judicata, do not strictly fall under that concept. Those, however, appear to be technical preclusions and may not ordinarily be attracted to rent proceedings solely on equitable grounds and considerations. Even otherwise, for our purposes, in the subsequent proceedings, a ground of subletting was also pleaded, the respondent No,2, Shahid Hasan, a brother of the respondent No, 1, being added as a respondent in the process: see Bashiruddin v. Additional District Judge, PLD 1985 SC 220, as regards addition of a new ground in later proceedings. Besides, in the altered circumstances of the current case, even the ground of default assumed a different character in that it became relevant to see as to whether the respondent No,2, in lieu of the respondent No,1, due conditions being satisfied, was or was not in default. It has, therefore, been difficult to agree with the learned Controller that the instant proceedings attracted any legal bar as to the re-examination of the ground of default.
3. ' Merits of the controversy thus having arisen for examination, it was pointed out by the learned counsel for the respondents-tenants that the plea of default was not categorically taken in the present rent proceedings. This is not precisely so, because default was made mention of in the eviction application and in the written statement to the tenant made due answer in relation to the same. What is more, in the affidavit-in-evidence from the side of the landlord, the plea was more pointedly raised and the tenant also made averments in his own evidence to controvert the claim.
4. Question of default, therefore, could be examined without causing prejudice to anybody because such was not only raised but was clearly understood by the parties to have been raised in the proceedings. Strict rule of pleadings, unless prejudice is shown to have been caused due to imprecise averments, is not, as a of course, applied to rent proceedings.
5. In the context of default, the initial burden no doubt is on the landlord, who must assert that default in payment has occurred. Such burden thereupon shifts on the tenant and it is for the tenant to show, through documentary material, if any, which he alone can be in possession of, being the recipient of receipts of rent, that requisite payments were made. In the instant case, the admitted position is that for a substantial period no payments were made to the landlord as such, but firstly to his father and upon the father's demise allegedly to (another) tenant Sikandar Mirza, who is stated to have' been on family terms with the landlord and also authorised to receive rents on the landlord's behalf. During the period, admittedly, the landlord was stationed and employed at Islamabad. His interests were being looked after by his father while the latter was alive. Thereafter, the tenant, as stated, claims that another tenant namely, one Sikandar Mirza was deputed by the landlord to collect rents and pass on receipts. While such authorisation is disputed, with a view to cut the controversy short, I am prepared to place the case of the tenant at the highest level namely, that the referred Sikandar Mirza could have received rents on behalf of the landlord.
6. However, even at this higher pedestal, the tenant's evidence is that he made payments only up to February 28, 1985, where after due to alleged evasiveness and claim of higher rent at Rs,400 p.m.
7. No payments were entertained. Documentary material in support consists only of Exh.5/B, apparently a rent account, purportedly signed by the referred Sikandar Mirza on 3-9-1984, which too does not appear to be conclusive of up to date payments. There is no subsequent receipt of payment of rent. The claimed payment of February 28, 1985, was allegedly made in the presence of witnesses but even though affidavits-in-evidence of Atiquer Rehman and Sabiruzzaman were submitted none of them offered himself for cross-examination. Such affidavits, therefore, constitute no evidence. Vital evidence has thus not been examined nor even a suggestion made that the same, subsequently, became unavailable. Best evidence has resultantly been withheld from the side of the tenant leading to the presumption under Article 129 Illustration (g) of the Qanun-e- Shahadat, 1984, that if the same was tendered it would have gone against the tenant. As regards the period following February 28, 1985, the written statement is silent but in the tenant's affidavit-in- evidence it was urged that deposits were made in a Miscellaneous Rent case even the number whereof was not given what to say of production of any cognate receipts. In this Court, while opposing a plea for deposits pendente lite, the number of the Miscellaneous Rent Case was disclosed but no receipts of payment were even then submitted nor a further enquiry under Section" 21 of the Ordinance was solicited. In such circumstances, it can plausibly be found that default at least for the referred period after 3-9-1984 did occur, and ex facie progressively so, giving rise to these proceedings.
8. At to subletting, the allegation was that the respondent No, 1 had sublet the premises to respondent No, 2, his real brother. Defence version, on the other hand, was that the respondent No, 1 had relinquished his tenancy, the landlord accepting the respondent No, 2 as his tenant. Evidently, whereas there is a written Agreement of Tenancy between the landlord and the respondent No, 1 there is none as regards the respondent No,
2. Thus, while it has been an admitted position that initially it was the respondent No, 1 who was the tenant such tenancy allegedly changed at the hands of the father of the landlord, at least one rent receipt having uncontrovertedly been issued in the name of the respondent No, 2, ostensibly in supersession of the tenancy of the respondent No, 1.
9. Now, the landlord has not denied that his father was duly authorised to collect rents. Such father, therefore, filled the character of landlord within the meanings of section 2(f) of the Ordinance. He could implicitly acknowledge a tenancy. Exh.5-A, a rent receipt apparently issued in, the name of the respondent No, 2, has not been denied by the appellant as having been issued by his father. On the question of subletting, accordingly, the finding of the learned Controller does not call for interference and the rent application concurrently fails on that point.
10. ' As to bona fide personal need, while the tenant has failed to successfully assail that the landlord, on retirement, has shifted back to Karachi and is presently putting up in a rented premises, it has been urged that, during the pendency of the rent case, tenant-Sikandar Mirza vacated the portion of the ground floor tenement in his occupation. That position was admitted by the landlord in his cross-examination. However, it was never put to the landlord that such vacated premises was sufficient for his requirement and that of his family or that the projected requirement thus stood satisfied through the accommodation so made available. The landlord maintains here that the premises was vacated voluntarily and was not sufficient for his need. Another aspect of the matter is that, subsequent to the filing of this appeal, the landlord has admittedly been able to obtain an order of eviction for the other (remaining) portion of the ground floor as well but that order is grounded on default in payment of rent and not personal requirement. On both these objections the landlord has urged that with four grown up members of his family (wife; two adult sons and a daughter) he wants to put up in the entire building but he did not have to plead personal requirement in relation to the ground floor tenements because such he got vacated on their own facts and in different circumstances. Contention is that it was only necessary in the context of the respondents-tenants that the ground for personal need be urged and such ground in totality, according to the landlord, embraces the whole property which, with his existing five grown-up members of the family, he requires in good faith. On principle, even when during the pendency of eviction proceedings another premises is got vacated and is available to the landlord, the landlord may still say that the vacated tenement is either not sufficient or relevant to his personal need.
11. Mere availability of such space in the absence of proper foundation on facts cannot in itself negate a case based on personal requirement. This, at the same time, does not mean or imply that availability of another tenement during the pendency of proceedings founded on personal need is not a factor fit for reckoning. It is clearly so. Yet the landlord may explain his position in the circumstances so altered. In each case of this genus, therefore, it should come up for examination whether the personal requirement of the landlord has survived the availability of additional accommodation irrespective of the manner or mode of the landlord's induction.
12. Now the landlord, admittedly, has held a responsible position in life. He has lately retired from the United States Agency for International Development (US A.I.D.) and has grown-up family members, who are educated and who await to be married. It is, therefore, not inconceivable that the whole (residential) property, apparently not a very large one, could be required by him for personal use and occupation. In the absence of contrary evidence, the case for personal requirement may be considered as proved.
13. ' Even so, on the ground of personal requirement covered by Section 15 ibid., eviction can only be ordered if the requirement be also in good faith. Learned counsel for the respondents has been able to show that at least on one occasion the appellant-landlord made an ostensibly false statement to the effect that it was not a fact that before filing the ejectment application tenant Sikandar Mirza had voluntarily vacated half portion of the ground floor premise in his tenancy. Such statement was made by the landlord in Rent Case No,359 of 1988 (old R.C. No,586 of 1987) during the course of his cross-examination on 16-7-1987. That rent case, however, gives rise to connected F.RA. No,85 of 1989 and not the First Rent Appeal presently under examination. Be that as it may, the statement is co-related with the landlord's earlier version in Rent Case No,347 of 1988 (old R.C.
14. No,998 of 1986 instituted on 4-9-1986), connected with this appeal where on 5-5-1987, again in cross-examination, he had maintained that the referred Sikandar Mirza had vacated the ground floor (portion) with his own consent. Firstly, it is manifest that the statement, even if false, was made in the subsequent eviction proceedings under Section 14 of the Ordinance (R.C. 359 of 1989, Old R.C. 586 of 1987) and in the concept of such section bona fides are not relevant. Next, the catch in the landlord's answer may have been in the context of timing of Sikandar Mirza's surrender of possession having nexus with the filing of the first eviction case, viz. The instant one. That in itself may have correctly reflected the factual position for even though tenant-Sikandar Mirza might have surrendered possession before the date of the first cross-examination on 5-5-1987 he may not have done so before the institution of the first rent case on 4-9-1986. There is nothing on the record to the contrary. This could, therefore, be a genuine error of understanding, the landlord making answer with reference to the case filed first in point of time. At any rate, the tenant, himself is not free from similar blame. He maintained that the landlord had, in fact, occupied the portion vacated by Sikandar Mirza under reference but denied having even seen the landlord's sons and daughter, alleging the presence of only the landlord and his wife at the premises. Such a situation could hardly arise if the landlord had actually come to occupy the vacated portion, as alleged by the tenant. In the result, there appears no justification to doubt the bona fides of the landlord. On the contrary, the landlord appears to be victim of circumstances inasmuch as during his sojourn at Islamabad the respondents were having a field day, getting the tenancy changed without ceremony and even dithering in making due payments of accruing rents. F.RA. 849 of 1988, in the result, is allowed.
15. First Rent Appeal 85 of 1989.---This brings us to F.R.A. 85 of 1989 emanating from Rent Case No,359 of 1988 under Section 14 of the Sindh Rented Premises Ordinance, 1979. It is established in evidence that the landlord was employed with US A.I.D. At Islamabad; he retired from service somewhere in 1985 and took up lodgings at Karachi. The landlord, allegedly, served the required notice under the section referred above. Service of notice was denied by the respondents but seemingly satisfactory postal material was produced to support the dispatch of such notice. Even otherwise the rule as to service of notice under Section 14 has been considerably relaxed upon the development of precedent law, lately emerging and it appears now well-settled that in the absence proof of due notice the eviction application itself under the relevant provision can be reckoned as appropriate notice in lieu. Nothing, therefore, turns on the point and the application may be treated as maintainable.
16. ' On facts, the tenant denied the factum of the landlord's employment and retirement for want of knowledge and surprisingly so. A tenant, admittedly, of a decade's duration (1972 original tenancy - - 1982 substituted lenancy) was expected to be aware of the whereabouts of his landlord. At any rate, the documentary material placed on record has duly established the employment and retirement of the landlord. The case, therefore, did fall within the purview of section 14 aforesaid ' However, it was strenuously urged before me by Mr. Moazzam Ali Beg for the respondents that the claim for eviction was hit by subsection (2) of Section 14 inasmuch as the landlord was in occupation of a portion of the ground floor of the same building, such portion having been vacated by another tenant viz. Sikandar Mirza. Likewise, an effective eviction order subsisted in favour of the landlord as regards the other ground floor portion, in the tenancy of one T.H. Wasti, who was ordered to be evicted on the ground of default in payment of rent. The landlord, however, according to learned counsel had chosen not to execute such order. Section 14(2) in the Ordinance reads thus: "(2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality."
17. ' Now the landlord admitted that the portion in the tenancy of Sikandar Mirza did fall vacant but he did not occupy the same, being still in occupation of the tenant-hold premises contracted by him subsequent to his retirement at Islamabad and coming over to Karachi. The landlord's being tenant of another premises and eviction proceedings initiated by his own landlady was questioned in cross-examination on the ground that the landlady was a relative and eviction proceedings were conniving conjured up to sustain the proceedings under section 14. Such suggestions were denied by the landlord and no cogent rebuttal in support was registered by the tenant. On the contrary and in contradiction, it was alleged that the landlord had shifted to the portion vacated by Sikandar Mirza, a position the tenant could not successfully support because he had not even cast eyes on the landlord's two sons or a daughter expected to be putting up with the landlord, confining himself to an allegation that he had only seen the landlord himself and his wife at the premises. Even such stand was changed at the appellate stage and an application (Civil Miscellaneous Application No,404 of 1991) was moved seeking further evidence as, allegedly, the landlord had re-let Sikandar Mirza's portion to another person. The landlord, through a counter- affidavit, denied the position, urging that Aijazuddin was only temporarily housed in the premises with a view to safeguard it. No rejoinder in repudiation was submitted by the tenant.
18. ' Section 14(2) of the Ordinance spells out a prohibition only if the landlord, being in occupation of a building or portion of a building owned by himself in any locality, seeks to avail the benefit under the operative part of that section. The term "occupation" involves physical seizin and not merely possession of a constructive character, as laid down by the Supreme Court in Muhammad Rafatullah Alvi v. Imran Ansari, PLD 1990 SC 369. Thus, even if the portion, at one time in the occupancy of tenant-Sikandar Mirza, was lying vacant and was not occupied by the landlord or was occupied by the landlord's licensee the appellant-landlord could not be deemed to be in occupation thereof and, therefore, the case would not fall within the mischief of section 14(2) aforesaid. Like would be the position of a portion for which the landlord is armed with an order of eviction but has thought fit not to execute. The prohibition flowing from "occupation" in contemplation of section 14(2) would equally be inapplicable. None of these situations, therefore, would spell ouster of a right of the landlord under section 14(1) aforesaid, if otherwise established.
19. For these reasons the above C.MA., seeking additional evidence under section 21 of the Ordinance, does not warrant any further enquiry and is dismissed. Correspondingly the case of the landlord having been proved in terms of section 14 as well due order of eviction is correspondingly passed.
20. ' Resultantly both these F.R As. Are allowed but the tenant(s) is permitted two months' time to vacate.