1. Through the present appeal under section 24 of the Cantonments Rent Restriction Act, 196?
2. (hereinafter referred to as the Act), the appellant has impugned the order dated 27-2-1999 passed by the Controller of Rent, Clifton Cantonment, Karachi, in Rent Case No. 149 of 1996 filed by the respondent against the appellant, whereby the appellant has been directed to vacate the premises within 30 days from the date of the order.
3. The fact leading to the present appeal are that the respondent is owner/landlady of House No.30.II, 6th Commercial Street, Phase-V, D.H.A., Karachi (hereinafter referred to as the premises), which was rented out to the appellant under agreement, dated 7th March, 1986 at the rental of Rs.4,250, which was enhanced subsequently to Rs.4,750, excluding water conservancy, electric, Gas, Telephone charges. Earlier ejectment application (No.63 of 1989) filed on the grounds of default and personal requirement was dismissed. The respondent filed an eviction application on 25-11- 1996 on the ground of (i) bona fide requirement of the respondent for her own use as well as use thereof by her family members, (ii) subletting of the premises illegally and unlawfully without written consent or approval and in violation of the terms and conditions of the tenancy by parting with the physical possession to Syed Nazar ul-Hasnain. The appellant alongwith his entire family has migrated/shifted to USA about two years prior to filing of the application, (iii) the appellant also avoided/failed/neglected to pay water conservancy charges.
4. The appellant filed written statement through attorney wherein he has controverted the facts pleaded by the respondent and maintained that Rent Case No.63 of 1989, filed by the respondent against the appellant on the ground of default and personal need has been dismissed, no appeal was filed. The application on the same ground has been filed without change in circumstances. It was further pleaded that the applicant has permanently shifted to Canada and intends to sell this property and other one in PECHS. Her mother is not dependent. The requirement of the house for her occasional visit to Karachi is neither bona fide nor genuine. She owns another house in PECHS, Karachi, for which she has not explained her position. Sub-letting was also denied and it was pleaded that the appellant had gone to USA in the month of October, 1996 temporarily for bone marrow treatment of his wife. Regarding arrears of utility bills, it was pleaded that he has not received bills from Cantonment in spite of letters written by him to the Board to send him bill and pleaded that there was no wilful default on his part.
5. At the trial the respondent examined Khaliq Ahmed, who was her attorney by filing his affidavit-in- evidence whereas the appellant filed affidavit-in-evidence of his attorney Muhammad Ishaq but failed to appear for cross-examination, as such the side was closed and the application was granted. The appellant filed F.R.A. No.662 of 1998 in this Court. In appeal case was remanded by order, dated 3rd November, 1998 with direction to give opportunity to the patties to file their affidavit-in-evidence, if any, for fresh cause of action.
6. On remand the respondent filed her own affidavit-in-evidence, whereas appellant's attorney appeared for cross-examination. Syed Nazrul Hasnain after service appeared through Advocate but neither filed written statement nor participated in the proceedings.
7. Out of the pleadings of the parties, the learned Controller formulated the following points:-- (1)Whether the premises in question is genuinely; bonafidely and in good faith required by the applicant for her own use, use of her family members and use, occupation and possession thereof by her ailing dependent mother?
8. (2)Whether the opponent No. 1 has sub-let the premises in question and has parted with possession thereof in favour of the sub-tenant?
9. (3)Whether the opponent No.2 is in possession, use and occupation of premises in question, if so, in what capacity.
10. (4)Whether the opponent No. I has executed power of attorney dated 15-10-1996 in favour of M.
11. Ishtiaq son of M. Salahuddin?
12. (5)Whether Mr. Ishtiaq had prepared forged and fraudulent power of attorney to contest the present case if so, to what effect?
13. Learned Rent Controller after considering evidence decided issues against the appellant, resultantly the application was allowed by the impugned order. The appellant was ordered to vacate and hand over the possession of the premises to the respondent within 30 days. Hence the present appeal.
14. I have heard the learned counsel for the parties and also perused the record.
15. Learned counsel for the appellant has contended that previous Rent Case (No.63 of 1989) filed by the respondent on the ground of default and personal requirement was dismissed by order, dated 22-12-1993. The order was not appealed, as such it attained finality and subsequent application for ejectment on the ground of personal bona fide requirement is barred by the provisions of res judicata.
16. To meet this contention, learned counsel for the respondent took me through the pleadings of the respondent. He maintained that earlier application for eviction was filed on the ground of default and personal requirement in good faith for respondent's own occupation and occupation of old ailing mother namely, Saeeda Qadri and referred para. 9 of Rent Application No. 63 of 1989 (Exh.B), which reads as under:
9. That the demised premises in occupation of the opponent is required by the applicant in good faith for her own use, occupation and of her ailing aged dependent mother namely Saeeda Qadri."
17. Whereas he contended that the requirement is not the same as pleaded in earlier application and has referred paras. 5 to 7 of the present Application No. 149 of 1996) wherein the respondent has stated the fact about personal bona fide requirement of herself and her family including ailing mother.
18. Paras. 5 to 7 reads as under:-- "5. That the premises in question is genuinely, bonafidely and in good faith required by the applicant for her own use as well as use thereof by her family members, including ailing mother, who is in Karachi for the last about two years and living with her brother in a rented house. "
19. "6. That, at the same time, as and when the appellant and her family members visit Pakistan, they have to live in other's house or in hotels, instead of applicant's own house, i.e. The premises question; the applicant and her family members feel unbearable inconvenience, hardship, torture, agony and distress as well as monitory loss due to non-availability of their own house with them, which was rented out only for a period of 11 months, in the year 1988, but is still out of applicant's reach, use, occupation and possession. The applicant's need, as such, is very much genuine and bona fide, having been purely made in good faith. "
20. "7. That the applicant is not occupying any other residential building in any local area or cantonment area, in the vicinity or locality, and she or any of her family members has not vacated any such building in the said area, vicinity or locality. The applicant has legal and lawful right to have the premises for immediate use thereof by herself and her other family members during their occasional visits."
21. It may be mentioned here that the earlier application for eviction was filed in the year 1989, whereas the present application was filed in the year 1996 about 8 years and the personal requirement has been pleaded in changed circumstances.
22. It is now settled law that the principle of res judicata in rent case would not apply when the cause of action of second application arises after disposal of the previous application. In Muhammad Ahmed v. Mst. Sakina (1984 SCMR 881) the landlord's two applications for eviction were dismissed and the third was allowed. The Supreme Court observed that the third application of the landlord was not barred on account of previous litigation. On subsequent cause of action, fresh application was maintainable.
23. It may be noted that section 14 of the repealed Ordinance, 1959 contains provisions for summarily rejection of eviction application, which raises substantially the same issue which was decided finally in the former proceedings under the said Ordinance. In fact, it was like the principle of res judicata. In the present Ordinance, however, there is no such provision. So far as the proceedings under the Ordinance are concerned, it can be said that the principle of res judicata in changed circumstances would not apply.
24. I am unable to persuade myself to subscribe to the plea taken by the learned counsel for the appellant that the second eviction application, which has been filed in changed circumstances after considerable period of time with fresh ground (of subletting) as well would be barred by principle of res judicata. Is am supported by the view taken in Muhammad Mustaqeem v. Saeeda Khatoon (1988 MLD 2565), where in the principle of res judicata was not applied by observing that the Court while applying res judicata should decide whether the need urged in subsequent eviction application was bona fide or there is change in the need.
25. On merit, the learned counsel for the appellant has assailed the finding on personal need on the ground that the landlady has permanently settled in Canada and landlady has other properties.
26. The personal need has been pleaded by the landlady in paras. 6 to 7 of the application that the appellant and her family on visit to Pakistan had to live in other's house or in a hotel instead of applicant's own house and they feel inconvenience, hardship, torture, agony and distress as well as mental torture.
27. To prove the above facts, the landlady has examined her attorney Khaliq Ahmed and herself. In paras. 7 to 9 of the affidavit of attorney, it has been stated by him that the applicant and her family members, on visit to Pakistan had to live in other's house or hotel instead of applicant's own house, which causes inconvenience, hardship, torture, agony and distress as well as mental loss. He has also given details of 5 visits of the applicant to Pakistan during the last four years. The applicant also examined herself by filing her affidavit. She has stated that her ailing mother is permanent resident of Karachi. Earlier she was residing in a rented house in PECHS and has shifted to North Nazimabad, Karachi, who is serious patient of arthritis. She further deposed that as and when she or her family visited Pakistan, they have 'to stay with their relatives which not only causes harassm ent to her but also embarrassment to the family and she wants the house in question vacated so that she may live there whenever she or her family visit to Pakistan, can live in their own house instead of creating trouble or relatives. Her family consists of herself, her husband, two sons and two daughters all up and his ailing mother. She has further stated that her family regularly visit Pakistan. Copies of passport were also placed on record to prove visits. She has also given details of her visit. She, at present, is staying with her relatives Her daughter Uzma had to stay with relative on her visit to Pakistan for want of accommodation.
28. Apart from evidence, attorney of the appellant has also admitted that the present eviction application has been filed on the personal need of the applicant and her family as well as on subletting and non-payment of water charges. He has also admitted that the mother of the applicant is residing at Karachi in a house owned by her relative but denied if the mother of the applicant is suffering from arthritis and Doctor has advised her to live in the country having warm climate. He has also admitted, that the applicant and her family members regularly visit Pakistan.
29. He has admitted that the applicant had visited Pakistan four times after filing of the present application and during proceedings they were in the country. He was not able to give description of the property owned by the applicant and her family nor produced anything to show that the applicant and her family own other properties in Karachi.
30. The above evidence on the issue of personal need is consistent with the application and not shaken in the cross-examination and/or disapproved in rebuttal, which is sufficient to prove bona fide. The appellant's witness has also admitted that the respondent has visited Pakistan about four times during the pendency of the application. Now the question which requires consideration is whether a landlady who is residing abroad can file eviction application on the ground of personal requirement to live in the premises during their visit to Pakistan?
31. Learned counsel for the respondent has referred the case of Mian Brothers v. Sulemen (1989 CLC 494) wherein in similar situation, the requirement was found to be valid in respect of landlord who used to visit Karachi casually. The above view was expressed by following the view taken by the Supreme Court in Ahmed-un-Nisa v. Parveen Siraj (1985 SCM R 2012) that the requirement of landlord for stay in his own house even temporary was considered valid one. The following observation may be useful which runs:-- "We wholeheartedly agree with these views, for, otherwise the provisions of the Ordinance would be rendered nugatory in cases where a landlord residing outside Pakistan bona fide requires his own house in Pakistan for his own occupation or use, or for the occupation or use of his spouse or any of his children when they come to visit Pakistan or return for permanent abode. "
32. Following the rule laid down in Ahmed-un-Nisa, I am of the view that the bona fides of the landlady who is residing abroad cannot be doubted for her requirement of the premises to live therein temporarily on her visit to Pakistan, as such the finding of the learned Rent Controller need no interference.
33. The learned counsel for the appellant has also criticised the finding of the learned Controller on the issue of subletting. It is admitted fact that the tenaat has left for America in the month of October, 1996 till date he has not returned. The attorney who is contesting the matter on his behalf has admitted that he is not related to the appellant end has also admitted that the utility bills such as gas, electricity, telephone are being received regularly with heavy amount which raises a strong presumption that the premises is in use and occupation. He has also admitted that Nazar-ul- Hasnain is looking after the property on his instruction but has denied that the same is in his occupation.
34. The counsel for the appellant has criticised the findings and maintained that in the application the factum of subletting has been stated that on visit of the premises by the applicant's mother she found Syed Nazr-ul-Hasnain and his family in possession of the premises and contended that she has not been examined as such subletting has not been established.
35. Conversely, learned counsel for the respondent maintained that Syed Nazr-ul-Hasnain was joined as opponent No.2 by showing his address of the premises and the notice was served personally on him and he referred the notice issued by the office of the Rent Controller to Syed Nazar-ul-Hasnain, which was received by him on 12-2-1997 at 3 p.m. (Page 7 bf Part III R & P of the lower Court) and urged that Syed Nazr-ul-Hasnain hid engaged a counsel and the appellant's witness Has admitted that said Nazr-ul---Hasnain is looking after the property. It has been contended by him that toe circumstances lead to inference that the appellant has sublet the premises. He further contended that if tenant without permission of the landlady leaves the property in possession/occupation of third person that amounts to subletting and maintained that in the present case, the appellant has left Pakistan after handing over possession of the premises to third person without consent of the landlady and the attorney is defending case on behalf of the tenant and claiming to be lawful attorney. The power of attorney is also doubtful, as such in the circumstances it amounts to subletting and placed reliance on cash of Muhammad Yousaf v. Moosa (1987 CLC 981) wherein it was observed that "it has been admitted that respondent had left Pakistan in 1979 and since then, has not returned, so much so that even the case was defended by respondent No.2 on his behalf.
36. Although the respondent No.2 has claimed to be lawfully constituted attorney of the respondent No.1, but the photocopy of the power of attorney produced by him not even attested and its authenticity has not been established. Without going into the question, whether this power of attorney was valid or whether the written statement could be signed by the respondent No.2 on behalf of the respondent No.1, the circumstances indicated above clearly raise a very strong presumption that the premises in question had been sublet by the respondent No.1 to respondent No.2. It, therefore, required proper rebuttal from the, respondents. It was further held that once the tenant admits possession of somebody else in the tenement, burden of proof then lies upon him to explain in what capacity the other person is occupying the tenement. It was further held that under such circumstances the Rent Controller could be justified in concluding the subletting has been proved.
37. Applying the above rule in the present case admittedly the tenant has left Pakistan in the year 1`996 and has not returned even the attorney is paying rent. The tenant appellant without permission of the landlord has parted with possession, therefore, the learned Controller was justified in concluding that subletting has been proved. The finding needs no interference.
38. The learned counsel for the appellant also assailed the findings recorded by learned Rent Controller that power of attorney dated 15-10-1996 was not executed by appellant in favour of Ishtiaq. The learned Rent Controller arrived on such finding after comparing the admitted signature with disputed signature. The objection taken was two-folds, firstly that the application to send the documents for expert opinion was dismissed and, secondly the exercise was done without opportunity to the attorney.
39. The above contentions are untenable as it is within the power of the Court to compare the disputed signature with the admitted signature and to form its view as permissible under Article 84 of Qanun-e-Shahadat Order, case of Ghulam Rasool v. Sardarul Hasan (1997 SCM R 976) can be referred. I have also compared the signature on power of attorney (disputed) with signature on rent agreement (admitted) available on file of the lower Court. I am also of the same view that both signatures are of different persons.
40. So far as the default on the ground of non-payment of utility bills is concerned, admittedly the tenant was required to pay utility bills to the department concerned directly in terms of clause 4(b) of the agreement of tenancy. In default thereof tenant was responsible for any additional expenditure involved.
41. On the basis of the above learned counsel or the appellant contended that utility bills were directly to be paid and cannot be basis of default due to its non-payment. Somewhat similar situation was considered in Bedrauddin v. Muhammad Yousaf (1994 SCM R 1900) by the Supreme Court, Ajmal Mian, J. (as he then was) who authored the report observed as under:-- ---We may also point out that if under the terms of tenancy the tenant is liable to pay directly the electricity and or gas charges to the company concerned and there is no liability on his part to pay the same to the landlord; in that event, the landlord cannot press into service the ground of default on the ground of non-payment of electricity and/or gas charges though he may be entitled to press into service the breach of the terms of the tenancy for seeking ejectment, if on account of default in payment of electricity and/or gas charges, the company concerned disconnects the supply and thereby impair the utility and the value of the demised premises.--- As a result of the above discussion, the appeal has no merits and the same is dismissed in limine with no order as to costs with the listed application.