1. ' This Appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, hereinafter called the Ordinance, is directed against the Order dated 27-8-1991, passed in Rent Case No,1469/86 (New No,595/88) by Mrs. Khalida Yaseen, the then learned Rent Controller, Central, Karachi, whereby she directed the appellants to hand over vacant possession of the premises in question to the respondent within 90 days from the date of the said order. The facts relevant for decision of this Appeal are as follows: ' Respondent Muhammad Ali, on 23-12-1986, filed the Eviction Application against the appellants National Bank of Pakistan on the ground of personal bona fide use. The case of the respondent is that he is the owner of 4 shops bearing Nos.1 to 4, situated on Plot No,ST-5, Block 14, Rahimabad, Federal 'B' Area, Karachi, hereinafter referred to as the premises, and the appellant are his tenant in the said premises at the monthly rent of Rs,1,766.25. The respondent had also filed the Eviction Application No,4116 of 1981 (New No,915/86) against the appellants on the ground of default, which on 3-7-1991 was. Withdrawn. The respondent has claimed that his gin namely, Suhail intends to start the business of car dealing in the premises for which he has prepared himself, having obtained necessary training from the Staffs of M/s. Motors & Motors and now he is capable of doing said business independently. Therefore, the respondent requires the premises in good faith for his son.
2. ' The appellants, in their written reply, resisted the claim of the respondent on various grounds. It is the case of the appellants that the premises was rented out to them in the year 1973 by Mrs. Fariyal wife of Sharif Ali and Mr. Hasan Ali son of Payar Ali and abovenamed persons are the owners of said premises. It is alleged that said owners had executed another lease deed dated 26-10-1976, in favour of appellants for a period of 5 years, commencing from 14-11-1975 to 14-11-1980, and then the monthly rent was also increased. According to the appellants, they are legally entitled to renewal of lease for further period and the plea of the respondent of personal bona fide requirement is false and it has been raised only to force them to pay rent at the rate of Rs,4,500 p.m., plus a huge amount as advance, which they declined. The appellants have claimed that, since the earlier Rent Case No,1915/86 was withdrawn by the respondent the principle of res judicata would apply. They, however, have admitted that on 28-6-1980 they had received a notice, under section 18 of the Ordinance, from the respondent informing them that he had purchased the premises from M/s. Al- Nazar Enterprises by registered Sale Deed dated 3-5-1980 and since that date onward he was the owner of it.
3. ' At trial, the respondent, his son Suhail Muhammad Ali and Wasif Mehmood filed their affidavits in evidence. The latter named did not appear for cross-examination, as such his affidavit was struck off. The respondent and his son were cross-examined. On behalf of the appellants Muzaffar Hussain, Manager, National Bank Federal 'B' Area, Karachi filed his affidavit and was cross- examined.
4. ' From the pleading of the parties, learned Rent Controller settled the following Issues:
(1) Whether there does not exist relationship of landlord and tenant between the parties?
(2) Whether the premises is required for the personal bona fide use of the applicant for his son Sohail?
(3) What should the order be?
5. ' On assessm ent of the evidence brought on record, learned Rent Controller decided Issues Nos.1 and 2 in favour of the respondent. Consequently, she allowed the eviction application by the order which has been impugned in this appeal.
6. ' Mr. Muhammad Akhtar learned counsel for the appellants contended that Mrs. Fariyal and Hasan Ali being owners of the premises, the same could not be sold to the respondent through registered Sale Deed by M/s. Al-Nazar Enterprises, as such, the finding of the Rent Controller that there was relationship of landlord and tenant between the parties was incorrect and contrary to law. He also argued that Payar Ali was not legally competent to execute the Sale Deed in favour of the respondent. According to the registered Sale Deeds, M/s. Al-Nazar Enterprises was registered under Partnership Act, 1932. Said Payar Ali is the father of said Hasan Ali. M/s. Al-Nazar Enterprises had purchased the premises from M/s. Ismailia Cooperative Housing Society under registered Deed dated 25-1-1975, as such, as per Sale Deed, Al-Nazar Enterprises was the owners of the premises when it was sold to the respondent. Hon'ble Supreme Court in various cases has held that neither the Civil Procedure Code nor the Evidence Act are in terms applicable to the proceedings under the Rent Ordinance. The proceedings before the Rent Controller being quasi-judicial in nature, the validity of Sale Deeds could not be challenged before the Rent Controller in rent proceedings. There is nothing on record to show that the photo copies of Sale Deeds produced by the respondent are forged or that the respondent is not the owner of the premises. On the contrary, the appellant's witness Muzaffar Hussain, in cross-examination, admitted that he had never seen any document showing Mrs. Fariyal and Hasan Ali as owner of the premises. He also admitted that as per Exhibits A/1, A/2, A/3 and A/4, which are Sale Deeds of four shops, Al-Nazar Enterprises in the Vendor/Seller of those shops. He also admitted that the respondent had served the notice dated 28-6-1980 upon the appellants informing them of having purchased said shops from Al-Nazar Enterprises. In fact, the appellants have never seriously challenged the factum of ownership nor such suggestion was given to the respondent in his cross-examination. On the contrary,. The main grievance of the appellants was that the copies of Sale Deeds dated 3-5-1980 were not supplied to them. The appellants have alleged that the respondent was compelling them to pay rent at the rate of Rs,4,500 p.m. Plus huge amount as advance. This is an implied admission to the effect that the respondent is the owner of the premises. Accordingly, I hold that the finding of learned Rent Controller that there is relationship of landlord and tenant between the parties is correct and no exception can be taken to it.
7. ' Learned counsel for the appellants next argued that, since Rent Case No,1915/1986 was withdrawn by the respondent in which the same points were raised which are involved in this matter, the principle of res judicata would apply to the instant case. In the case of M/s. Allied Bank Ltd v. M/s. Rahmat Sons Ltd. 1993 M LD 844, I had examined the plea of applicability or principle of res judicata in Rent Case and observed as follows:-- "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 SCMR 881 Muhammad Ahmed and another v. Mst.
8. Sakina Begum and others). In this case, landlqrd had filed three eviction applications. First and 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. On 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 failed 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 dismissal of earlier application on merits, on subsequent cause of action on the grounds enumerated in subsection (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 determining 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 rejection of application, which raised substantially the same issue which was decided finally in a former proceeding 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 res judicata in changed circumstances, would not apply."
9. Besides above, it is pointed out that Rent Case No,1915/86 was filed on the ground of default, whereas the proceedings in Case No,595/88 were started on the ground of personal bona fide use.
10. These are the two separate grounds and each one is to be examined on its own merits. Therefore, the principle of res judicata would not apply in this case.
11. ' Mr. Muhammad Akhtar learned counsel for the appellants also contended that the respondent is not entitled to the premises as his son does not require the premises for personal bona fide use.
12. Learned counsel in this connection referred to the cross-examination of respondent Muhammad Ali and submitted that, he (respondent) had purchased 25 shops on the ground floor of the building in question. He concluded still many shops must be available with him and he could use any one of them for his son. The respondent, in affidavit-in-evidence, clearly stated that his son is major and he has completed apprenticeship and now he is capable to do his own business independently. Mr. K.A. Wahab learned counsel for the respondent submitted that the evidence of the respondent and that of his son, on the point of personal bona fide use, has gone unchallenged, and it being so, the appellants are not in a position to refute the claim of the respondent. He also pointed out that appellant's witness, in cross-examination, clearly admitted that there is no partition wall in-between the four shops and that the premises is a hall. He also admitted that the premises is at the corner of the building and in the vicinity there are several show-rooms. The only suggestion given to the respondent on this point was that his son was not well acquainted with the business of car dealing, which was denied by the respondent. Learned counsel for the appellants argued that the element of need and genuine requirement is missing in this case and mere wish, convenience, whim, and fancy of respondent is not enough to establish the factum of personal bona fide use. In support of this contention, he cited (1) M.S. Khan v. S.M. Sirajuddin 1985 CLC 562, (2)
13. Haji Abdul Ghaffar v. Lal Bux and others 1989 CLC 241, (3) Ghulam Rasool v. Syed Nazim Hussain Shaikh 1988 CLC 793, (4) Malik Islam Akber v. Mustafa Hussain 1992 CLC 1753, (5) Shahida Rafi v.
14. Muhammad Kamal 1994 M LD 407.
15. ' In M.S. Khan's case, it was observed that landlord had concealed facts from Court and his original intention was to increase the rent. (2) In Haji Abdul Ghaffar's case, it was observed that landlord got possession of another premises during ejectment proceedings and re-let same to some other tenant. It was held that need of landlord, under the circumstances was not bona fide. (3) In Ghulam Rasool's case, it was noted that landlord was not only in occupation of flats other than disputed one in building, but owned other building which he got vacated through eviction proceedings and did not disclose such facts in eviction application nor in affidavit-in-evidence.
16. Under the circumstances, it was held that bona fide need of the landlord was not established. (4) In Malik Islam Akber's case, it was held that mere wish of landlord would not be sufficient to eject tenant on that ground. (5) In Shahida Rafi's case, it was observed that since purchase of building in question from original owner, landlord admittedly had rented out three other shops at different times to different tenants and had increased rent of premises twice. Under the circumstances, it was held that requirement for personal bona fide need was not established.
17. ' The phrase 'personal requirement' was liberally interpreted by the Hon'ble Supreme Court in the following cases: (1) 1985 SCM R 1769 (Dildar Hussain Nayyar v. Niaz Muhammad Dar and another). In this case landlord sought eviction of three tenants from three adjoining shops on ground of his personal need of all three shops. It was held that landlord had a choice and if he needed three shops at a time it had to be considered rather in a pragmatic manner. Supreme Court upheld the finding of High Court that a restricted view about need of landlord cannot be taken as there was no such compulsion of law. In the case of Mst. Saira Bai v. Syed Anisur Rahman 1989 SCM R 1366, 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 of cause of action. In the case of Haroon Kassam and another v. Azam Suleman Madha reported in PLD 1990 SC 394 the following was observed: "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 Mal v. Kika,, Ram alias Heman Das, 1973 SCM R 185). Earlier in the case of Nooruddin and others v. Asghar Ali and others (1968 SCMR 1087) a some what similar situation was noted inasmuch as another flat in the same building 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 v. Riaz Ahmad and others (1986 SCM R 1981)."
18. ' Above observations though are in respect of 'residential building' but since in the Ordinance term 'premises' means a building or land let out on rent as such, these observations would also apply to 'commercial building'.
19. The expression "requires the premises in good faith" is not capable of being confined, to an invariable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise in such cases. The fate of each case depends upon its own facts, when the landlord alleges 'good faith' and the respondent calls it 'mala fide' the proper course would be to put two different factual proposition together and then determine, taking into consideration all material facts, that which one was realistic and sound. In the instant case, as pointed out earlier, the evidence of the respondent on the point of personal bona fide use has not been seriously challenged. On the contrary, the evidence of the witness of the appellants lends support to the claim of the respondent that the premises in possession of the appellants are most suited for the business the respondent's son intends to start. The personal bona fide requirement of the respondent is proved.
20. ' In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to costs. The appellants are directed to hand over vacant possession of the premises in question to the respondent within 4 months from now.