' JAVED IQBAL, J.---These two appeals with leave of the Court are directed against judgment, dated 27-2-1996 passed by learned Single Bench of the High Court of Balochistan, Quetta whereby two appeals preferred on behalf of appellant under section 15 of the Balochistan Urban Rent Restriction Ordinance (VI of 1959) (hereinafter referred to as Ordinance VI of 1959) whereby ejectment order passed by learned Rent Controller on 31-12-1992 was upheld. The above two appeals shall be disposed of by this common judgment as the facts in both the appeals are same.
2. Precisely stated the facts of the case as enumerated in the impugned judgment are that on 30th December, 1989 and 23rd December, 1990, respondent Haji Shaista Khan, instituted two separate eviction applications, seeking ejectment of appellant from a cabin and shop constructed upon Khasra No,1203/2 situated at Band Road, Pishin, on the ground of reconstruction and personal bona fide use and occupation. It was his case that both Khokha and shop are of temporary construction, therefore, reasonably and in good faith, he requires that same, for reconstruction of new building/shop, for which, he has already obtained approved plan and permit vide approval No,987, dated 20th December, 1989, from Municipal Committee, Pishin, it was also disclosed that besides the disputed premises, he is already in occupation of a Khokha situated on the other side of shop, but the same is not sufficient to meet his requirement, therefore, after reconstruction, he intends to utilize the same for his personal use and occupation. Both the eviction applications were contested by appellant, raising number of preliminary objections, including the one, that eviction application pertaining to Khokha is barred, under the principle of res judicata. It is noteworthy that appellant did not deny that shop and cabin (disputed premises) are constructed on one Khasra Number' i.e, 1203/2. However, bona fides of respondent, concerning reconstruction and thereafter occupying the same for personal bona fide use, were challenged on merits. Out of the pleadings of parties, the learned Controller, framed following issues:--
(A) Issue framed in matter pertaining to Khokha
(i) Whether the Khokha in question is reasonably and in good faith required by applicant for reconstruction and for personal use and occupation?
(ii) Relief.
(i) Whether the property in question consists of two units i.e, a shop and a cabin?
(ii) Whether the application is hit by res judicata on the ground of personal bona fide requirement?
(iii) Whether the property in question is a packka construction and also has been constructed by the respondent at his own expenses?
(B) Issues framed in matter pertaining to shop
(i) Whether the present eviction application is not maintainable in view of P/Os 'A' and 'B' of the written statement?
(ii) Whether the applicant is owner/landlord of the disputed shop and Khpkha?
(iii) Whether the applicant wants to demolish and reconstruct the disputed shop and Khokha for his personal bona fide use and occupation?
(iv) Relief.
' Both the parties, led for and against evidence, in support of their respective pleas. Ultimately learned Controller, vide separate impugned judgments dated 31-12-1992, directed ejectment of appellant. These orders were challenged before this Court by appellant. After hearing the appeals, eviction order was set aside by this Court on 15th April, 1993. The respondent went in appeal before Hon'ble Supreme Court, by filing Civil Appeals Nos.76 and 77-Q of 1993, which were allowed on 15th February, 1995. Relevant observations therefrom are reproduced hereinabelow:-- "4. In our view, the High Court should have adverted to the questions, whether the cancellation of the approved plan by the Chairman was bona fide or mala. Fide, and whether the same could be ignored by the High Court. It should have also examined the other submissions of the respondent including the question of bona fide of the appellant to seek ejectment on the ground of reconstruction in the background of the above facts and also the question of res judicata and other allied questions raised by the respondent.
5. In our view, it will be just and proper to remand the case to the High Court with the directions to decide the above F.A.Os. Afresh taking into consideration the aforesaid observations. In case the learned Judge, who may hear the above appeals, feels that the record of Municipal Committee in respect of the grant of sanction for the plan and its cancellation is necessary, or hearing of the representative of the Municipal Committee is warranted, he may do so.
3. The learned High Court after remand of the case by this Court got recorded the statements of Jan Muhammad (Revenue Assistant) and Abdul Aziz (Chief Officer, Municipal Committee Pishin) and after completion of necessary formalities the appeals were dismissed, hence these appeals.
4. Leave was granted by means of order, dated 16-6-1996 which is reproduced hereinabelow for ready reference:-- "Leave to appeal is granted in the above mentioned two petitions to consider inter alia the contention of the petitioner that whether the subsequent application for eviction filed by the respondent before the Rent Controller on the ground of personal and bona fide requirement of the shop alongwith a "Khokha' was barred on the principle of res judicata contained in section 14 of the Rent Restriction Ordinance, 1959, as the previous application filed by the respondent for eviction of petitioner from. 'Khokha' on the ground of personal and bona fide requirement was dismissed on merits which attained finality. Status quo to be maintained till the . Hearing of the appeal."
5. It is mainly contended by Mr. Tahir Muhammad Khan, learned Advocate Supreme Court on behalf of the appellants that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice and more so, that the learned High Court has misconstrued and misinterpreted the provisions as contained in section 4 of Ordinance VI of 1959 as the previous eviction application filed by the respondent from Khokha on the grounds of personal bona fide need was dismissed and accordingly the fresh application was hit by the principle of res judicata as enshrined in section 14 of the Ordinance VI of 1959. It is next contended that the building was not in dilapidated condition and thus no reconstruction was required which aspect of the matter escaped notice and resulted in serious prejudice. It is also mentioned that the appellant cannot be evicted simultaneously from the Khokha and shop being two separate units.
6. Mr. M.K.N. Kohli, learned Advocate-on-Record appeared on behalf of respondent and supported the impugned judgment being free from any illegality or infirmity. It is contended vehemently that the entire evidence which has come on record has been read minutely by the learned High Court and hence the question of any misreading or non-reading of evidence-does not arise. Learned counsel for the respondent further contended that in view of the changed circumstances and needs of the respondents the bar as contained in section 14 of Ordinance VI of 1959 is not applicable. It is also argued that the property in question was in dilapidated condition and reconstruction whereof was essential for which all the legal requirements were completed. The learned counsel has referred the following case-law:--
(i) Maula Bakhsh v. Fazal Din PLD 1982 SC 201.
(ii) Rehmat Shah v. Amir Gul 1995 SCM R 139.
(iii) Altaf Hussain v. Nuzhat-un-Nisa PLD 2000 SC 67.
7. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of Ordinance VI of 1959 and record of the case. We have minutely perused the impugned judgment. A bare reading of leave granting order would make it manifestly clear that the moot question was regarding the applicability of section 14 of Ordinance VI of 1959 to consider as to whether order passed in previous round of litigation by learned Rent Controller on 1- 12-1990 does constitute res judicata for filing fresh eviction application which was previously rejected. In our considered opinion the previous order of learned Rent Controller that Khokha was not required for personal bona fide use would not constitute a bar as contained in section 14 of Ordinance VI of 1959 for filing fresh eviction application which would be examined in the light of changed scenario and decided on its own merits. There is no denial of fact that circumstances cannot remain static and uncahnged for an indefinite period which cannot be ignored and thus the repeated and successive eviction application can be filed subject to the availability of changed situation. Mr Tahir Muhammad Khan learned Advocate Supreme Court has not seriously contested the proposition that in a changed circumstances the provisions as contained in section 14 of the Ordinance VI of 1959 would not constitute a bar but attempted to persuade us to accept his submission that factually no change had occurred in the circumstances and thus the bar as enumerated in section 14 of Ordinance VI of 1959 would be applicable. We are not persuaded to agree with the, said submission as the first eviction application was filed on personal bona fide use regarding the Khokha but subsequently another eviction application was moved on the main ground of reconstruction coupled with personal bona fide use of the Khokha as well as the shop and thus it was maintainable. In this regard we are fortified by the dictum laid down in Dost Muhammad v. Muhammad Shabbir Hussain (1981 SCM R 528) wherein it was held that "circumstances having radically changed after dismissal of first application question of maintainability of second application, held, fell to be examined in context of changed circumstances and case did not fall within mischief of section 14", We have also surveyed the case- law in this regard which supports the above position. A similar proposition was discussed in case titled Malal Khan v. Mir Hassan (1980 CLC 1422) and while examining the provisions as contained in section 14 of Ordinance VI of 1959 it was observed as follows:-- "12. A cursory glance over the text of section 14 would show some substance in the contention of the respondent but this provision of law, if so interpreted as to place on absolute bar to the subsequent application on the matters earlier decided under subsections (2) and (3) of section 13 of the Ordinance, can lead to some very inconvenient; if not absurd results. For example, if an application earlier moved under section 13(2) for ejectment of the tenant on the ground of default in payment of rent does not succeed for one reason or the other, subsequent default would not entitle the landlord to invoke, once again, the jurisdiction of the learned Rent Controller for ejectment of the tenant on the very same ground. Similarly, if this rule of law is stretched to that extent to which the learned lower Court has done, on earlier plea for ejectment of a tenant for subletting the tenanted property on its failure would act as a bar to fresh application on a later subletting by the tenant, Thus the bar contained in section 14 of the Ordinance would act as a perpetual injunction against the landlord debarring him for ever from the exercise of his right to knock at the door of the Rent Controller for redress of the grievance which he might suffer after the failure of the first attempt.
The cardinal rule of interpretation of the statute is such a construction as is most agreeable to justice and reason. In this connection a passage from Maxwell on Statutes (page 199 of the 12th Edition) would not be without help:-- ' "In determining either the general object of the Legislature, or the-meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reasons, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational construction. The question of inconvenience or unreasonableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent events."
' Similarly, the presumption in interpreting a provision of law would be against intending injustice or absurdity. In this context Maxwell on Statutes can, once again, be quoted with profit (page 208 of the same Edition):- ' "Whenever the language of the Legislature admits of two constructions and, if construed in one way, would lead to obvious injustice, the Courts act upon the view that such result could not have been intended, unless the intention to bring it about has been manifested in plain words. If the Court is to avoid a statutory result that flouts common sense and justice it must do so not. By disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice."
13. The rule of constructive res judicata as enunciated by section 14 of the Ordinance, in view of the above-quoted rules of interpretation has to be applied in such a manner as it only does not defeat the interest of justice but also does not result in inconvenience or absurdity. It is in this context that the words used in the section under discussion 'which raises substantially the same issue as have been finally decided in a former proceedings under this Ordinance' are to be interpreted. These words came for consideration in Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai (PLD 1979 Kar. 597) in somewhat different context. In that case the question which came for consideration before the High Court was whether the requirement of a landlord at a particular time and under certain conditions can be considered to be substantially the same issue as a requirement of the successor landlord some years later or even the requirement of the same landlord on a different occasion and under different conditions. The High Court held that the requirement of previous tenants could not be quoted with the requirement of the sub-tenant unless all the circumstances which go to make up such requirement are identical in both the cases which was most unlikely. Mr. Justice Z.A.
Channa, J. On comparison of the rule of constrictive res judicata as contained is section 14 of the Ordinance with that enunciated in the Code of Civil Procedure, 1908 rebutted the contention raised before him that a substantial similar issue as the one which has finally been decided under the Ordinance cannot be raised and is barred, even if the former issue was between the parties other than the parties between whom subsequent issue has arisen, in the following passage from his above-cited judgment:-- ' "On a cursory reading of section 14, the argument may seem attractive, by reason of absence of any reference in section 14 of the requirement of the two issues being between the same parties as required in section 11, Code of Civil Procedure, but a closer examination of the provisions of section 14 of the Ordinance leaves no room for doubt that the requirement of one landlord of premises in the occupation of a tenant for his personal use or the use of his children can and will not only be different from the requirement of a successor landlord, who may have purchased the premises for the purposes of personal occupation, but even the requirement of the same landlord at different times could be different. For instance, a landlord may have been found not to be bona fide requiring the accommodation in the occupation of his tenant, because he is then occupying suitable accommodation, either rented or given to him by Government or by his employers.
However, if the tenant is ejected from the accommodation in his occupation, either on account of proceedings taken against him by his landlord or on account of his retirement from service or similar valid reasons, the requirement of the landlord will then completely be changed and he would clearly be requiring his own house for his personal occupation. It cannot be said that the issue of his requirement on the former occasion, when he was occupying suitable accommodation, and his requirement on the subsequent occasion, when he has been ejected from his former accommodation and may be particularly on the streets, is the same."
' It was further held that "the moment it is established that intention behind the institution of this later application is bona fide, the bar of section 14 of the Ordinance would not come into play as, a landlord who failed to establish good faith on his part or genuine need to reconstruct in moving the earlier application could not be said not to have bona fide need to do the same after the efflux of about 12 years in case he successfully establishes his bona fide intention. In the matter in hand, the issue in the earlier proceedings was the bona fide intention to reconstruct at the time while in the latter proceedings the matter in issue was whether the property at this stage needed construction or the petitioner genuinely intended to do the same. It is thus clear that rejection of an earlier application will not always act as a bar under section 14 of the Ordinance even in case where eviction is sought for reconstruction as every fresh need or desire to reconstruct would give a fresh cause of action. The law of constructive res judicata as enunciated by the section under reference would only come to play when on identical reasons and in identical circumstances, after the earlier unsuccessful attempt, the ejectment of the tenant is subsequently, once again, sought. It does not need much imagination to appreciate that a building which did not need demolishing at a certain time would not become so deteriorated after the lapse of a dozen or so years, as to warrant demolition or reconstruction". The provisions as contained in section 14 of Ordinance VI of 1959 were examined in a comprehensive manner in case titled Bashirud Din v. Additional District Judge (PLD 1985 SC 220) as under:-- "3. It was vehemently argued by the learned counsel for the petitioner that even earlier, in 1973, the respondent-landlord had sought eviction of the petitioners from the shop in question on the ground of personal need, but that application hadkeen dismissed and, that, as such the subsequent application filed in May, 1980 (out of which the present petition has arisen was barred in view of the provision of section 14 of the Punjab Urban Rent Restriction Ordinance, 1959, which reads as follows:-- '14. Decisions which have become final not to be re-opened.---The Controller shall summarily reject any application under subsection (2) or under subsection (3) of section 13 which raise substantially the same issue as have been finally decided in a former proceeding under this Ordinance' ."
' We are, however, unable to agree with this submission. Through this section, principle similar to that of res judicata is sought to be applied to proceedings before the Rent Controller, but it is well established that principle of re judicata would not apply where the cause of action on which the second suit (or application) is based, has arisen after the disposal of previous proceedings. For example where an ejectment application filed by a landlord on the ground of default in payment of rent by the tenant has failed once, he is not debarred by section 14, from filing another ejectment application on the same ground i.e, default, if after the dismissal of the first ejectment application, the tenant again commits default in payment of rent. The same principle could apply in other cases where fresh cause of action accrues to the landlord after his first application has failed. It has been herd in Dost Muhammad and another v. Muhammad Shabbir Hussain and another (1981 SCM R 528) that where the first application on the ground of personal requirement has failed but there has been such change in the circumstances which calls for the matter being decided anew, section 14 would be no bar to a second application on the fresh cause of action. This stands to reasons because with the passage of time the requirement of a landlord may change substantially and a person who is found at one time to be in possession of a premises having sufficient accommodation for himself or is found to be in occupation of other suitable premises at one time, may after some reasonable period of time be found to be in bona fide need of more or better accommodation either because the size of his family has increased or his need has increased or he is no longer in occupation of another suitable premises. In such a case all that is to be seen by the Rent Controller is whether the circumstances have not substantially changed after the dismissal of the previous application and whether in the existing circumstances the requirement of the landlord is bona fide. In case the finding is in the positive the earlier application will not constitute a bar to the second (or even a third) ejectment application. The same view was taken by the Peshawar High Court in Haji Malal Khan v. Mir Hassan (1980 CLC 1422).
4. It may also be noted that the plea of subletting had not been taken by the respondent landlord in the earlier ejectment petition filed in 1973. Obviously therefore, this was a fresh ground which has been accepted by the learned Rent Controller and upheld by the learned Additional District Judge.
Therefore, the order of petitioner's eviction on that ground would be effective notwithstanding the dismi. It of landlord's earlier application which was based on the ground of personal need."
' It is well-settled by now that ground for personal need and reconstruction are ever recurring.
(Muhammad Rafiq v. Khalid Rauf 1984 CLC 2135, Maula Bakhsh v. Fazal Din PLD 1982 SC 201).
8. An abortive attempt has been made by Mr. Tahir Muhammad Khan learned Advocate Supreme Court; on behalf of appellant to show that Khokha and shop being different entities are not located on one and the same Khasra number and, therefore, the appellant could not have been evicted from both but the record negates the said version. The appellant has never denied in the written statement that shop and Khokha were not located on one and the same Khasra number i.e, 1203/2.
The sanction (Exh:A/1-A) for reconstruction also pertains to Khasra No,1203/2 relating to Khokha and shop. It can, therefore, be concluded that Khokha and shop are having one and same Khasra number. It is also contended half-heartedly that the shop and Khokha were not in dilapidated condition and no reconstruction was required which hardly needs any consideration as it is not obligatory for the landlord to prove that the disputed premises were in dilapidated condition and more-so, no such embargo has been laid down in section 13(2)(vi) of Ordinance VI of 1959 to prove the dilapidated condition of the premises. There is no civil to the proposition that "it is the desire of the landlord to reconstruct and not the condition of the building which is relevant for the decision when the vacation of property is sought by the landlord, for reconstructing the same. The Court has to determine whether the landlord requires it for the construction in good faith. The moment it is established that intention behind the institution of this later application is bona fide, the bar of section 14 of the Ordinance would not come into play as a landlord who failed to establish good faith on his part of genuine need to reconstruct in moving the earlier application could not be said not. To have bona fide need to do the same after the efflux of about 12 years in case he successfully establishes his bona fide intention". (Malal Khan v. Mir Hassan 1980 CLC 1422).
9. The necessary formalities to get the building reconstructed had been completed and the only irresistible conclusion which could be drawn is that respondent/landlord wants to get it reconstructed. It is noteworthy that even the witnesses produced by the appellant namely Agha Jan and Muhammad Ilyas have mentioned in a categoric manner that the shop in question was having the Katcha roof.
10. In view of what has been discussed hereinabove the appeals being devoid of merits are dismissed.