1990 PLP 861 (SCMR)

Nemo for Respondents. Date of hearing: 18th February, 1990. AJMAL MIAN, J.‑‑‑Leave to appeal is sought against the judgment dated 25‑10‑1989 passed by a learned Single Judge of the Lahore High Court in Writ Petition No.377 of 1983 allowing the respondent's above petition against the order dated 26‑7‑1983 passed by the learned Additional District Judge, Rawalpindi, maintaining the order of the learned Rent Controller dated 3‑4‑1983 though on different ground.

2. The brief facts leading to the filing of the above petition are that the respondent filed aforesaid rent application under section 17 of the Cantonments Rent Restriction Act, 1963 (Act No.XI of 1963) hereinafter referred to as the Act on the ground of personal requirement of the landlord's wife i.e. predecessor‑in interest of the respondent. The above application was dismissed by an order dated.21‑11‑1979 on the ground that the above ground was not provided as a ground for ejectment in the Act. After hardly 2‑3 weeks the landlord filed the second rent application on 16‑12‑1979 on the ground of his personal requirement, which was dismissed by the learned Rent Controller by his order dated 3‑4‑1983 on the ground that after having failed in the earlier application the second application was not competent. Against the above order, the landlord filed the afore d appeal which was disposed of by the learned Additional District Judge by his order dated 26‑7‑1989, whereby he did not agree with the learned Rent Controller that the second rent application was barred by res judicata but held that merits there was no case. He recorded a finding of fact that the landlord failed to prove bona fide personal requirement and, therefore, dismissed the appeal by the above order. Against the above order the landlord riled the aforesaid writ petition, which was allowed in the above terms and the case was remanded. The petitioner has, therefore, filed the present petition for leave to appeal.

3. We have heard Kh. Muhammad Farooq, learned A.S.C. and it seems that the High Court proceeded on the wrong premise that the learned Additional District Judge in the appeal had also held that the second rent application was barred by res judicata, though factually it was not so as the learned Additional District Judge did not agree with the learned Rent Controller on the above point. The relevant observations of the learned Additional District Judge on the above question are as follows:‑‑ .....The second ejectment petition was filed on the ground that the shop in dispute is requried for appellant‑petitioner Syed Ahmad Farooq to run business. It is obvious that the matter in dispute in both the petitions was different. Therefore, it cannot be argued that in the second petition the issue was same old one. The question worth consideration was whether or not the new claim regarding the personal use of the shop in dispute inspired any confidence through evidence produced by the appellants/petitioners." In this view of the matter, the High Court has not exercised its jurisdiction in accordance with law. We, therefore, grant leave to appeal to consider the question whether the High Court was justified in setting aside the order of the learned Additional District Judge in spite of the fact that the learned Additional District Judge had already concluded that the second rent application was not hit by res judicata. Security in the sum c; Rs.5,

000. Status quo will continue. The appeal shall be prepared on the present record with the direction to the parties to file necessary documents, if any, for the disposal of the above appeal. A.A./M‑1258/S Leave granted.