'MUHAMMAD BASHIR KHAN JEHANGIRI, J---This appeal by leave is directed against the judgment of a learned Single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi allowing an appeal filed by the respondent-firm and thereby setting, aside an order of dismissal of its petition for ejectment of the predecessor-in-interest of the appellants from the demised premises and passed an order of their eviction.
2. Facts of the case are that the appellants, who are the legal representatives of one Taj Muhammad Abbasi, since dead, are in occupation of the disputed premises called as M/s. Ferozesons Limited, Rawalpindi, which belongs to the respondent-firm. The latter sought the ejectment of the appellants under section 17 of the Cantonments Rent Restriction Act (XI of 1963)
(hereinafter referred to as 'the Act') on the ground of default in payment of rent; bona fide personal requirement of the respondent-landlord of the premises both on the ground floor and the third floor, alteration in the premises which impaired the value and utility thereof and subletting the premises.
3. The appellants' predecessor-in-interest denied the bona fide requirement of the premises by the respondent,-firm as also the assertion that he has transferred his rights under the lease or sublet the building or any portion thereof to anyone else or has used the building for a purpose other than that for which it was leased out or that he had committed such acts as were likely to materially impair the value, look or the utility of the premises or that he was defaulter in payment of rent.
4. After analyzing the evidence the learned Rent Controller found against the respondent-firm on all the issues and consequently dismissed the petition on 13-3-1991. The landlord-respondent went in appeal to the Lahore High Court, Rawalpindi Bench, Rawalpindi, which accepted the same and reversed the findings of the learned Rent Controller on all the pleas except that of default in payment of rent. The learned Single Judge while setting aside the findings of the learned Rent Controller on the point of incompetency of the petition held that "Abdul Ghani (P.W.2) the Managing Director of the appellant (respondent before us) had the complete authority to file the eviction petition and that the Resolution Exh.P.1 could not have not been discarded from consideration inasmuch as no objection had been raised regarding its mode of proof at the time of recording of evidence. On the point of multifariousness it was held by the learned Judge that as "the dispute was of the saint nature between the same parties and related to the two portions of the same building", it could not be possibly held that the application for his ejectment suffered from some multifariousness. The learned Judge further held that there was no evidence on the record to substantiate the plea that the appellants' predecessor-in-interest was doing a protective business at the third floor presently and that the documents Exh.R.1 and Exh.R2 which were the anchor-sheet of the 'tenant's claim' clearly proved that two premises were being occupied by two different concerns, namely, Ferozesons Limited, Rawalpindi (respondent herein) and the Ferozesons Limited which was a different concern altogether and which company was working at Peshawar Road. In consequence, the findings of the learned Rent Controller on both the pleas were set aside holding that the application for ejectment was not barred under the third proviso to section 17(4) of the Act and further that no notice was required to be served upon the petitioners in terms of the aforesaid proviso before filing the ejectment petition. The learned Single Judge reached the conclusion on the plea of bona fide requirement of the premises by the respondent-firm holding that in this case "it has been proved by positive evidence that the appellant was in a bona fide need of the premises in question for its use and occupation". According to the learned Judge, merely because the respondent was in occupation of a portion of the building, did not disentitle it to get the tenant ejected. According to the learned Judge, the bona fide requirement of the landlord had to be looked into by the Court in the circumstances of each case and that in the matter in hand the nature and severity of the need as explained by the witnesses produced by the respondent-firm clearly proved that the premises in question were required by the respondent in all bona fides for personal use and occupation. On issue of subletting, the learned Single Judge also disagreed with the finding of the learned Rent Controller and observed that the stand of the tenant stood negatived that the premises were being used personally by the four independent concerns which belonged to him. According to the learned Judge, this stand was belied by the statement of Muhammad Yousaf (R.W.2) who had conceded in the cross-examination that he was not working in the premises as an employee but was doing his own business in the premises and was paying commission to the tenant and thus set aside the finding of the learned Rent Controller holding that the tenant was proved to have sublet the premises in question. On the issue of default in payment of rent which has been discussed perhaps by inadvertence under issue No,8, the learned Single Judge upheld the finding of the learned Rent Controller that the deposit of rent in the Court with the permission of the Rent Controller was a sufficient tender to the landlord and upheld the findings of the learned Rent Controller. On the plea of impairing the utility and value of the premises by the tenant, the learned Judge opined that structural changes to sub-divide the property into four portions by the tenant without the consent of the landlord rendered the tenant liable to ejectment from the disputed premises. The plea that the petition suffered from mala fides was answered in the negative by the learned Single Judge holding that there was nothing on the record to show that the petition lacked the element of bona fides.
5. As a result of these findings, while setting aside the impugned order passed by the learned Rent Controller, the appeal was accepted and an order of ejectment was passed against the appellants with the direction to hand over the vacant possession of the premises to the respondent-firm within four months.
6. Leave to appeal was granted to consider, inter alia, whether in the A presence of the dismissal of the earlier application for eviction of the predecessor-in-interest of the appellants' fresh application on the same grounds was maintainable.
7. The objection raised by the appellants that two earlier petitions for eviction on the ground of bona fide personal need of the premises by the respondent-firm were unsuccessful and, therefore, the petition in hand was barred under section 23 of the Act, was not sustained by the learned Rent Controller holding that "the previous ejectment petitions were never finally decided but were dismissed for non-prosecution and non-production of evidence". It was further concluded that "any decision less than final never operates as res judicata".
8. The learned Single Judge in the High Court had affirmed this finding saying that "admittedly the first ejectment application was dismissed as withdrawn whereas the second one was dismissed for default" and that, therefore, "it cannot be said that the present application is barred by the principle of res judicata".
9. We are inclined to uphold these findings of the two forums below. A bare reading of section 23 ibid would show that an application under subsection (2) or under subsection (4) of section 17 or under section 17-A of the Act which raises substantially the same issues as have been finally decided inthe former proceedings under the Act would be summarily rejected. (Underlining is for the sake of emphasis). The two forums below have rightly held that the earlier two petitions having not been finally adjudicated and decided either accepting or rejecting the pleas, raised therein the present application was not liable to rejection summarily. We have also given our anxious consideration to the proposition. We are of the considered view that where an application for eviction is dismissed for default of appearance or for failure to produce evidence, a subsequent petition on the same cause of action claiming the same relief is not barred under section 23 of the Act, in that, in both these eventualities the element of final adjudication on merits is lacking.
10. Sahibzada Ahmad Raza Khan Qasuri, learned counsel for the appellants, has reiterated before us the contentions which were raised before the High Court and maintained that the learned Single Judge has completely ignored the evidence on the record in reaching his conclusions reproduced in para.5 ante. In this context, he urged that the ejectment petition had been filed by an incompetent person inasmuch as the respondent was a corporate body and had to act through the resolution and its common seal and that having ' omitted to comply with these legal' requirements, the petition has been incompetently filed. We tend to disagree with the contention of the learned counsel. The learned Rent Controller while deciding this issue has completely misdirected himself and has been a victim of extraneous consideration, namely, that the resolution had not been filed with the ejectment petition or that the Managing Director had gone all the way to Karachi in order to get this resolution passed in 'mono-item' agenda. The findings of the learned Judge in the High Court on this plea are thus perfectly justified. We also concur with the finding of the learned Judge on the point of multifariousness. Merely because the tenant has occupied two portions of the same building at two stages and for different purposes, the ejectment sought by the landlord cannot be said to be an act of multifariousness. We are also of the considered view that the concept of multifariousness within, the contemplation of the Code of Civil Procedure, 1908 stricto senso is not applicable to the ejectment proceedings under the Act, in that, the Rent Controller under the Act does not act as a Civil Court but as a 'persona designat'. .
11. The learned counsel for the appellants then contended that the 'learned High Court has erred to hold that no notice was required to be served on the respondent under the third proviso to subsection (4) of section 17 of the Act. In order to appreciate the contention of the learned counsel, the third proviso to section 17 is reproduced below:-- "Provided also that this subsection shall not apply to Serais, hotels, dak-bungalows, lodging- houses, boarding-houses, residential clubs, restaurants, eating-houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sale or production-of materials of books of educational and cultural value except where the landlord requires and such building to carry on any such business of his own, in which case he may make an application under this subsection after having served two years' notice on the tenant; but no building which is not, on the commencement of this Act, being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord."
' The learned counsel for the appellants contended that the words `premises dealing in sale or production of materials of books of educational and cultural values' in the proviso should not be read in literal sense but should be read in a wider sense as the object of the Legislature in the enactment of the said provision was to afford protection to the pursuit of educational and cultural activities and to save them from sudden disruption in the larger interest of the community. The contention of the learned counsel had received our anxious consideration. . Unfortunately, the protection afforded by the proviso applies only to "premises dealing in sale or production of materials of books of educational and cultural values". It does not apply to premises where only a monthly Journal under the title of `Dehat' is said to be published notwithstanding the fact that it was not substantiated by any cogent evidence. Be that as it may, we tend to uphold the finding of the learned Judge to Chamber that both the portions of the disputed premises were not let out to the appellants for the publication of this Journal. One portion was admittedly let out for his use a show-room for the sale of second hand cars while that on the third story for use as office was being occupied for residential purposes. On the other hand, the case of the respondent is well established that it required this premises to carry on business of production of books of educational and cultural value. Again the phraseology employed at the end of the proviso, namely,...."being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord" is significant. It is not established on the record that the respondent-firm had let out the premises to the predecessor-in-interest of the appellants expressly for the purposes of publication of Journal. The learned Rent Controller has thus fallen into a grave error to uphold the objection rose in this context by the appellants. The learned High Court was, therefore, justified to set aside the finding of the learned Rent Controller on this score and no possible exception can be taken thereto.
12. Much stress was led on the bona fide requirement of the respondent-firm. In this respect, the existence of another concern, namely, Ferozesons Limited (on Peshawar Road) was alluded to. The learned Judge in Chamber found that the disputed premises and the one at Peshawar Road were being occupied by two different entities and has rightly referred to the admission of R.W.4 who in his cross-examination conceded that he had no knowledge about the ownership of the property situate at Peshawar Raod. Again it is not for the tenant to determine the sufficiency or otherwise of the requirement of landlord in a commercial-cum-residential building. It is for the landlord to urge and for the Court to determine as to the propriety of requirement of the landlord. The objection that the respondent-firm was occupying a portion of the premises for publication etc. And that, therefore, it did not require any more premises is not of any consequence. There is credible evidence on the record to suggest that the machinery imported by the respondent-firm for its business of publishing was awaiting installation. It is an admitted fact that Ferozesons Limited, the present concern, was a celebrated firm of the country in publication business and had to be partitioned on account of death of predecessor-in-interest of the respondent-firm and as a result thereof, the disputed property had fallen to its share which had come into existence as an independent concern. The findings of the learned Judge in Chamber on this score are indeed well- founded and call for no interference. .
13. The findings of the learned Judge in Chamber on subletting of the premises for a purpose other than that for which it was leased has also been criticized by the learned counsel for the appellants by saying that the predecessor-in-interest of the appellants had five sons and that he was justified to have used it as four independent concerns. The learned Judge in the Leigh Court has rightly referred to the admission of Muhammad Yusuf (R.W.2) who categorically stated that he was not working in the premises as an employee of the appellants but was doing his own business and was paying them the commission. . The learned counsel has stressed that payment of commission by the tenant to the occupants of the premises was not tantamount to subletting. We regret, we are unable to accept this interpretation of subletting by the tenant. The term 'sublet' has been used in general sense covering all cases of subletting whether by way of 'sublet' or 'assignment' without the permission of the landlord. In the instant case, the tenant had delivered the possession of a portion of the premises to Muhammad Yusuf (R.W.2) for a consideration of 'commission' without the tacit or implied consent of the respondent-firm. This fact clearly shows an unlawful subletting and transfer of tenancy rights.
14. Again the raising of un authorized structure in the disputed premises has caused physical damage to the premises which has resulted in loss to the respondent-firm. The sub-division of the premises into four portions on the ground floor by raising semi-permanent partitions would fall within the mischief of materially 'impairing the value, look or utility of the premises," therefore, the learned Judge in Chamber was perfectly correct in holding that the appellants had been guilty of acts within the contemplation of section 17(2)(b)(3) of the Act.
15. The learned counsel for the respondent-firm argued that the appellants have got a safeguard under section 17(6) of the Act if the respondent does not occupy the building within a month from the date of obtaining its possession after applying to the Rent Controller for an order that the possession of such building be restored. As rightly contended by the learned counsel for the respondent-firm, the provision of section 17 of the Act has been enacted in favour of the tenant to restore the possession of the demised premises if the landlord has failed to prove by subsequent act that the bona fide requirement as alleged in the ejectment proceedings has not come true. We are conscious of this proviso and undoubtedly the appellants may have recourse to this remedy.
Nonetheless, these provisos do not absolve the landlord to prove affirmatively that he does require the premises for his bona fide requirement or that of his children. In the instant case, however, the respondent had been able to prove its bona fide requirement of the premises. .
16. As no extraordinary circumstance has been made out in the matter to justify our interference at this stage with the discretion exercised by the High Court in the F.A.O., we would dismiss this appeal and would leave the parties to bear their own costs. The appellants would, however, deliver the vacant possession of the premises to the respondent within three months from today.