1. JUDGMENT NAZIM HUSSAIN SIDDIQUL J. ~ This appeal under Section 2! Of lho Sintlli Rented Premises Ordinance. 1979. Hereinafter called the Ordinance, is directed against order dated 21st December, 1987 passed by the then learned VIth Rent Controller, Karachi South, in Rem Case No.1388/86.
2. Whereby, he directed appellants to hand over vacant possession of the premises in question to respondents within 60 days from the date of said order. The facts relevant for decision of this appeal are as fol lows:- The respondents on 27.10.1986 filed eviction application against appellants on the ground of personal bona fide use. It is their case that they .Are owner of the multi-storeyed building constructed on C.S.No. 5 S.B.2. Karachi, which they purchased from its previous owner namely, Haji Muhammad Hussain. Main portion of ground floor, had a restaurant while first floor and upwards were used for a Hotal. Said previous owner in the year 1961. Under an agreement, handed over possession of the restaurant to one Muhammad Yousaf and he (previous owner) himself managed the affairs of the Hotel. There was litigation between previous owner and said Muhammad Yousaf aiid ultimately a compromise wms arrived at between the parties, and as a resuult of it the previous owmer obtained possession of the restaurant. This happened in June. 1973. The previous owmer letout some portion of ground floor to appellants and its other portion of ground floor to appellants and its other portions on ground floor, consisting of a kitchen and open space, remained with him. After purchasing said building, the respondents handed over possession of the Hotel Viz:"SALATEEN HOTEL" to M/s. Saeed Tourist Enterprises, under an agreement. The respondents in the year 1978. Filed the Rent Case No.3368 /78 against appellants as they (respondents) wanted ground floor for their showroom. The eviction application was dismissed and appeal preferred against said order, being F.R.A. N.941/83, after-some time was withdrawn. A compromise was arrived at between the respondents and said M/s. Saeed Tourist Enterprises on 2-1-1984, whereby the possession of Hotel was delivered to respondents and since then they are running it. The respondents have no restaurant. Dining room and for that reason they are facing difficulties in running said Hotel and also suffering financial losses. They had applied to the concerned authorities for upgrading their hotel to "TWO STAR" but their repuest was turned down mainly on the ground that for a Two Star Hotel there must be a restaurant/dining room. The respondents after obtaining possession of hotel in 1984, have changed their mind and now they want the premises in question for using it as | Vol. XVI jcsiatirant/dinning room. The appellants, in their Written. Reply, resisted the claim of respondents on various grounds. They contended that, since earlier rent case wits dismissed, on merits, and appeal preferred against said order was subsequently w ithdrawn, the principle of res-judicata is attracted, and, now the respondents can not claim possession on the ground of personal bona fide use. It is also their case thitt respondents are doing flourishing business of hotel, and neither they are facing any problem, nor suffering any loss, and nor they bona fide require the premises in question for their personal use.
3. At trial respondents filed affidavit of Muhammad Ashraf, who .Is a Director of respondents Company, and appellants filed affidavit of their employee namely Asgher Ali. Both were cross- examined.
4. Learned Rent Controller settled the following issues
(1) Whether the applicants require the premisis for their personal bona fide.
5. Use? .
(2) What should the Order be?
6. On assessm ent of evidence brought on record, learned Rent Controller decided Issue No.l in affirmative and consequently he allowed the eviction application by the order, which'has been impugned in this appeal.
7. Learned counsel for appellants challenged the finding of learned Rent Controller mainly on two grounds. Firstly,.It is contended that in the year 1978 the respondent's application on'merits was dismissed and appeal filed aga'qist it was withdrawn, as such, the principle of res-judicata is applicable. Secondly., it has been argued that even now on merits the respondents are not entitled to claim poss essioii of the premises. On first point he cited (l) P.L.D. 1961 Dacca 628, Profulla Ran/an Choudhury and others v. Rai Mohan Chowdhury and others. (2) P.L.D. 1965 S.C. 527. Government of Pakistan 1A. Syed Akhlaque Hussain and another, In the case of Prafulla Rctnjan Chewdluay while dealing with the principle of res- judicata. It was held, that judgment right or wrong was binding between the parties. In- second case. Supreme Court observed that res-judicata is the decision itself and not reasons thereof.
8. The principle of res-judicata in rent cases would not apply when cause of action of second application arises after, the disposal of previous application. Learned counsel for respondents on this point referred to the case reported in 1984 S.C.M.R. 881. Muhammad Ahmed and another VT.
9. Mst. Sakina Begum and others. In this case, landlord had filed three eviction applications. First & second were dismissed and 3rd application was allowed. It was observed by Hon'ble Supreme Court that 3rd application of landlord was not barred on account of previous litigation. 0n subsequent cause of action fresh application was maintainable. This can be further explained in the way that if the eviction application filed by landlord on ground of default had fallen and the tenant again commits, default in payment of rent, then fresh application for subsequent default would be maintainable, despite the fact that the earlier one was dismissed on merits. This principle would also apply when fresh application is filed, after the dismessal of earlier application on merits on subsequent cause of action on the grounds enumerated in sub-section (2) (ii) (iii) (a)
(b) (c) (iv) (v) and (vii) of section 15 of the Ordinance. In such situation, subsequent circumstances would be parameter for determinging the cause of action. In this case the circumstances had changed and respondents had a cause of action for seeking eviction of appellants. The first eviction application was filed in 1978 and the present one was instituted in the year 1986. In 1984 they got possession of the hotel and they have every right to promote their business, In this connection it is also noted that Section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959 contained a provision for summarily rejecting iipplication, which raised substantially the same issue which was decided finally in a former proceedings under said Ordinance. In fact, it was like the principle of res- judicata. In the Ordinance, however, there is no such provision. So far the proceedings under the Ordinance are concerned, it can be said that the principle of ies-judicata in changed circumstances would not apply.
10. Next point to be considered is of personal requirement. Learned counsel lor appellants submitted that mere wish, convenience, whim, fancy of landlord would tot be enough to show that landlord genuinely requires the premises in good fait;' Also, he argued that element of need and genuine requirement for the purpose of promoting the business would have to be proved beyond doubt by the landlord, In support of above contentions, he cited:
(1) P.L.D. 1986 Karachi 407, M.S. BarobaVs. Manzoor Ahmed
(2) P.L.D. 1986 Karachi 84, M/s.Eastern Express Co. Ltd. Vs. Tariq Hameed .
(3) 1986 C.L.C. 1100. Ikhlq-un-Nabi Vs.Nawab Ahmed Shamsi & 8 others.
(4) 1987 C.L.C. 686, Muhammad Aslant Vs. Muhammad Aslam.
(5) 1987M.L.D. 236G, Muhammad Hussain Fcithavi and another Vs. Syed Akber AH Shah.
11. Hon'ble Supreme Court while dealing the plea of personal requirement has liberally interpretated the phrase of personal requirement as is apparent in the following cases. (1) 1985 S.C.M.R. 1769, Dildar Hussain Nayyar Vs. Niaz Muhammad Dar and another. In this case landlord sought eviction of three tenants from three adjoining shops on grouds of his personal need of all three shops. It wa* held that'landlord had a chocie and he needed three shops at a time it had to be considered rather in a pragmatic manner. Hon 'ble Supreme Court upheld the I'inding of High Court that a restricted view about need of landlord can not be taken tis there was no such compulsion of law. In the case reported in 19S9 S.C.M.R. 1366 Mst. Saira Bai vs. Syed Anisuur Rahman, it was held by Hon'ble Supreme Court that landlord was not required to state the nature of business which he intended to carry out as the same neither was essential nor formed part cause of action. In P.L.D.1990 S.C. 394. Haroon Kassani and another 1A. Azam Suletnan Madha. The following observations were made:- "It is by now the settled law that if 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 in, is surely a matter within his prerogative and discretion and the law does not give-either to the tenant or the Rent Controller the power to determine where the landlord should personally reside {Sabu Med V. Kika Ran alias Heman Das, 1973 SCM R 185). Earlier in the case of Noor-vdin and others lA. Asghar Ali and others (1968 SCMR 1987) a some what similar situation was noted inasmuch as another flat in the same builing had fallen vacant, which the landlords had let out to another tenant and failed to utilize it for themselves. In the circumstances, it was held that the question as to which portion of the building would suit the landlords better must be left to their discretion and there was nothing unreasonable in the landlords insisting that a particular portion of the building should be made available' to them. This view has consistently been followed by us as pointed out by the learned counsel for the respondent, the latest authority being the one reported as Sardar Khan Vs. Riaz Ahmed and ' others (1986 SCMR 198l)."
12. Above observations though are in respect of residential building, but since in the Ordinane term 'PREMISES' means a building or land letout on rent as such, these observations would also apply to Commercial building.
13. The respondent's witness Muhammad Ashraf, in affidavit-in-evidence, reiterated the facts mentioned in the eviction application. He in cross-examination, deposed-that there are 61 rooms in hotel, which are in possession of respondents. According to him, these rooms are used for lodging of customers. He deposed that there is no parking space in side the building. He maintained that demand of respondents for premises in question is bona fide. Learned counsel for appellants submitted that the request of respondents for upgrading the hotel as "TWO STAR" has already been turned down by the relevant authorities, as such, the respondents can no more demand possession on this ground. Learned counsel tor respondents meeting this argument submitted that even if it be assumed that hotel can not be upgraded still, the respondents are within their rights to expand their business and by 'having the premises for its ultimate Use as a restaurant their business would automatically increase. The purpose of upgrading the hotel was to promote the business. The refusal by. The relevant authorities to grani status of " TWO STAR IIOTFS" would not by itself be enough for recording the finding against the respondents. Looking to the number of rooms available to respondents for customers, the demand of respondents for the premises in quesstion for using it as a restaurant and dining hall is bona fide.
14. Learned counesl for appel 1 ants argued that notice under Section 18 of the Ordinance was not served upon appellants, as such, the eviction proceedings could not be instituted against them.
15. The purpose of notice, unde'- Section 18 of the Ordinance, is only to inform tenant about new ownership, which appellants knew much earlier these proceedings were started. In fact, previous application was also filed by the respondents. Above all. In this matter the eviction of appellants has not been sought on the ground of default, as stich, the service of notice was immaterial.
16. Leamed counsel for appellants also argued that in fact, the respondents desired exorbitant increase in rent to which appellants did not agree, therefore, in retaliation the eviction proceedings were started. This plea is also devoid of any force. Demand of higher rent by itself can not be regarded as an act of mala fide. Oii this point, reliance is placed on the cases reported in (1) 1985 S.C.M.R. 1996. Shamsul Islam Khan Vs. Pakistan Tourism.Development Corporation Ltd. l2) 1986 S.C.M.R. 946, M/s. Allied Bank of Pakistan Ltd. Ks. Syed Wahid Hussain (3) 1989 S.C.M.R.1366, Mst. Saira Bai Vs. Syed Anisur Rahnian. Although, in view of above reported cases even deman for higher rent cannot be taken as mala fide, but in this case, as admitted by appellant's witness Asgher Ali in his cross-examination, the respondents had never approached for increasing the rent. There is no substance in this contention.
17. In consequence, the appeal is dismissed with no order as to costs and the appellants are directed to hand over vacant possession of the spremises in question to the respondents within four months times from now.