' This First Rent Appeal is filed under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) by the landlord as his application under section 15 of the Ordinance, 1979 was dismissed through the impugned judgment which was filed on the ground of personal need, default and material alteration in the tenement.
2. On 29-9-1992, the appellant, who claims to be one of the co-owners and landlords of a building constructed on Plot No,A.M, 9, III-B-12, Muhammad Bin Qasim Road, Karachi, commonly known as Paracha Mansion' for which ejectment proceedings under section 15 of the Ordinance, 1979 was filed against the opponent/respondent who is tenant on the ground floor in the Premises bearing No,15-B comprising two rooms at monthly rent of Rs,90 per month (hereinafter referred to as the tenement in question). Some three grounds were urged in that application; firstly that the tenant/respondent has raised illegal and unauthorised construction without written permission of the appellant/landlord and, therefore, he has violated the terms and conditions of the tenancy.
There is an adverse finding on this point by the learned Rent Contr llerf however, Mr. Zafar Iqbal does not press this point and has mainly argued the appeal on two points; firstly, that the owners require this premises for establishing their office for the purpose of running the affairs of Paracha Mansion comprising of some 70 units. The second ground was that the opponent/respondent has committed wilful default in payment of rent from January, 1987. The learned Rent Controller dismissed the plea of landlord and rejected the ejectment application which has been impugned in the instant appeal.
3. I have heard Mr. Zafar Iqbal Dutt, Advocate for the appellant and Mr. Muhammad Arif, Advocate for the respondent/tenant. I have also perused the record of the case. It was argued by Mr. Zafar Iqbal that the appellant/landlord has successfully established his bona fide and genuine need and that such fact was not displaced by the tenant/respondent. It was further argued that the landlords have no place to run the management of Paracha Mansion and their need is very much genuine to seek eviction of the tenant/respondent on this ground, which facts were, not considered by the learned Rent Controller. On the point of default, it was contended by Mr. Zafar Iqbal that the tenant/respondent was required to deposit the rent of January, 1987 on or before 100 days which was not done in the instant case. He has also disputed the allegation of the tenant/respondent that the applicants ever declined or refused to accept the rent. In such background, it was contended that sending rent through money order was not warranted and uncalled for in the circumstances of the case and it cannot be termed to be valid and lawful denying of rent. Reliance is placed on the cases Nadeem Ahmed Alvi v. Omar Haleem 1996 M LD 791; Bashir Ahmad v.
Muhammad Shafi 1989 SCM R 538 and Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCM R 1296.
4. Mr. Muhammad Arif, Advocate for the tenant/respondent has supported the impugned judgment and contended that the need of the landlord is neither genuine nor bona fide inasmuch as he has filed several proceedings against some other tenants on the same ground. It was further contended that even if there was any need that stands satisfied by the ejectment order of present tenant/respondent in Rent Case No,1473 of 1992 which fact was rightly noted by the learned Rent Controller in the second last paragraph of the impugned judgment. Against that order First Rent Appeal bearing No,93 of 1997 (Muhammad Naeem v. Muhammad Shakeel) was filed which was dismissed in non-prosecution by this Court Against which the respondent has filed special petition for leave to appeal which is still pending. On the point of default, it was contended by him that the assertion by the tenant that the landlord has declined to accept the rent is to be accepted as it has gone unrebutted which fact is very much applicable in the instant proceedings. He has placed reliance on the following cases:--
(i) Abdul Majeed Memon v. Mst. Attiya Rehman 1993 CLC 1350;
(ii) Muhammad Anwar v. Syed Muhammad Sadiq 1993 CLC 1819;
(iii) Muhammad Sanaullah v. Mehran Feed Industries Ltd. And others 1994 CLC 2141;
(iv) Bunyad Ali v. Karim 1990 CLC 999; and
(v) Hassan Malik v. K.R.S. Iyer 1990 CLC 1729.
5. I would like to deal with the question of default first. In para.3 of the eviction petition, it is averred by the landlord that the opponent has failed to tender rents since January, 1989. (It is para. 4 and has wrongly been typed as para. 3). This fact was denied by the tenant through his written statement where it is claimed that the tenant is regularly paying rent and that on refusal by the landlord to accept the same for the month of January, 1987, he started depositing rent in Miscellaneous Rent Case No,6341 of 1987 and is regularly depositing the same. The same position was taken by the parties in their A affidavits-in-evidence. It is pertinent to note that in para. 4 of the written statement, it was categorically stated by the tenant that upon refusal of the landlord/applicant, the rent was sent through money order which was again declined by him. This claim was reiterated by the tenant in para. 5 of his affidavit-in-evidence who also filed receipt/acicnowledgement M.O. Form and the receipts of rents being deposited by him in the Court of IVth Rent Controller, Karachi South in Miscellaneous Rent Case No,634 of 1987. Exh.P/13 indicates that for the first time, rents for the month of January, 1987 to June, 1987 were deposited on 15th April, 1987. The landlord/ appellant were not able to prove the time and period when the respondent/ tenant was required to pay rent in absence of any established practice. In such circumstances, the tenant was required to tender the rent for the month of January, 1987 within 60 days after the rent has become due for payment as provided under section 15(2)(ii) of the Ordinance, 1979. Thus, the rent for the month of January was to be tendered on or before 10th April, 1987, but before that the respondent/tenant sent the money order for Rs,270 as three months' rent on 22nd March, 1987. In this connection, the statement of respondent/tenant on oath which was not denied by the landlord/appellant and production of acknowledgment of postal money order is sufficient proof of payment of rent as provided in section 10(4) of the Ordinance, 1979.
6. Reference to the case of Nadeem Ahmed Alvi by Mr. Zafar Iqbal Dutt, Advocate will not advance the case of appellant/landlord. In that case it was held by a learned single Judge of this Court that in the absence of any evidence to show that the landlord had refused or avoided to accept the rent, a tenant is not entitled to send the rent by money order or to deposit it with the Rent Controller. Be that as it may, if a tenant has deposited rents with the Court under the provisions of section 10 of the Ordinance, 1979, the question which arises for determination would be whether it will be such a default entailing eviction of a tenant or merely a technical one requiring exercise of discretion in favour of the tenant. In this connection reference to the definition of rent as given in section 2(i) of the Ordinance, 1979 would be relevant where it has been defined as including water and electricity charges and such other charges which are payable by the tenant but are unpaid.
Since the parties have not addressed this Court on this point, I leave the same for consideration in a case where such question would be relevant. As a result of the above discussion, I am inclined to hold that no wilful and deliberate default was committed by the appellant/tenant.
7. On the point of personal need, Mr. Muhammad Arif has vehemently contended that the need of the landlord/appellant stands satisfied as in another rent case eviction of the present tenant/respondent was ordered on the personal bona fide use for establishing the office of Messrs Paracha Mansion. The question whether the subsequent rent case was not barred by the principle of res judicata was not considered by the learned Rent Controller. This fact was not even controverted by Mr. Zafar Iqbal Dutt. The relevant portion of the impugned judgment reads as follows:- "It is pertinent to mention that the applicant has filed another rent case being R.C. No,1473 of 1992 against the same opponent on the same ground of personal bona fide use for establishing an office for the management and control of the Building. I have already ordered for ejectment in the said rent case on the ground of requirement for establishment of office and as such the requirement of the applicant stands satisfied as his requirement is for one office for the management and control of the building. The point is, therefore, decided accordingly."
8. Although there is no parallel provision like section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959 or section 23 of the Cantonment Rent Restriction Act, 1963, in the Ordinance, 1979, yet the principles of res judicata will apply for fair administration of justice and to extend finality to the litigation between the landlords and tenants. I am fortified in my view by a decision of a learned single Judge of this Court, Saleem Akhtar, J. (as his lordship then was) in the case of Mohiuddin Ansari v. Muhammad Arif Siddiqui 1991 CLC 72 at 75 where it was further held that, "No party can be allowed to litigate twice on the same cause of action if those disputes have been decided by a Court of competent jurisdiction. "For further reference, see the cases S.M. Hayat v.
Commodore (Retd.) Ikramul Haq Malik and another 1984 CLC 3176, Messrs Allied Bank Ltd. v. Messrs Rahmat Sons Ltd. 1993 M LD 844 at 846 and National Bank of Pakistan v. Muhammad. Ali 1996 CLC
956. In the instant case, the appellant/landlord is seeking eviction of the respondent/tenant on the ground that the tenement in question is required by the landlord to establish their office for running the affairs and management of Paracha Mansion, while in the earlier rent case, the same ground was urged and decided in favour of the respondent/tenant.
' No issue on this point was framed by the trial Court and, therefore, the parties were not able to lead evidence in support and rebuttal of such issue. This issue requires determination aftei affording opportunity to the parties.
9. As a result of the above discussion, this appeal is partly accepted and the impugned judgment is set aside to the extent of the issue of personal need. The case is remanded to the Court of Rent Controller with direction to frame issue on the point of application of bar of res judicata in the present case and after affording opportunity to the parties to lead evidence on this limited question to decide the case within a period of three months from the date of receiving intimation of this order.
10. In the above terms, this appeal stands disposed of.