2016 PLP 1 (YLRN)

SHAHNAWAZ TARIQ, J.

Through the captioned Constitution petition, petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of Constitution of Pakistan, and assailed the order dated 26.3.2013, passed by learned III-Additional District Judge, Karachi East, whereby FRA No.114 of 2012, filed by petitioner was dismissed and order dated 04.7.2012, passed by learned IX-Rent Controller, Karachi-East in Rent Case No.394 of 2009, was maintained.

2. The relevant facts spelt out from the instant petition are that under the verbal tenancy agreement, petitioner is tenant of respondent No.3 regarding the second floor of house constructed on Plot No.104-F, Block No.II, P.E.C.H.S, Karachi, (hereinafter referred as to "the demised premises") at monthly rent of Rs.5,000/-, payable in advance including Electric, Gas and Municipal charges etc directly to the concerned authorities.

3. It is further averred that petitioner remained irregular in payment of monthly rent as well as Municipal taxes etc and ultimately stopped payment of rent from the month of May, 2005, and in spite of repeated demands, he failed to pay the rent. Thereafter on 01.12.2005, in presence of respectable persons, petitioner promised to pay the rent along with arrears from the month of May, 2005, within one week but he failed to adhere his promise and started depositing rent in MRC No.20 of 2006. It is further stated that the demised premises is required in good faith for personal use of her son and petitioner was repeatedly requested to vacate the same but all in vain. Respondent No.3 ultimately filed ejectment application against the petitioner.

4. Petitioner filed his written statement and raised preliminary legal objections with regard to maintainability of application as no fresh cause of action was accrued to the landlady, as her previous ejectment application bearing Rent Case No.473 of 2005 filed against petitioner on the same ground of personal need, was dismissed in default. It was further stated that respondent No.3 has no need of the demised premises for bona fide personal use and rent application has been filed with ulterior motives only to compel the petitioner to enhance the rent. It is further averred that respondent No.3 had failed to discharge the burden of holding up of marriage of her son namely Atif due to shortage of accommodation, while petitioner is an old tenant and has been depositing rent regularly and vigilantly in MRC No. 20 of 2006 w.e.f. January 2006.

5. To substantiate her case, respondent No.3 filed her affidavit in evidence as Ex:A. Petitioner filed his affidavit in evidence as Ex:O. After hearing arguments of the parties, learned Rent Controller allowed ejectment application. Petitioner agitated said order by filing FRA which was also dismissed by learned appellate Court.

6. Learned counsel for petitioner has agitated the only point of maintainability. He contended that the earlier rent case filed by respondent No.3 was dismissed for non- prosecution but she failed to file restoration application and after lapse of 4 years, she has again filed present rent application on the same cause of action as such instant rent application is barred by the principle of res judicata.

7. Learned counsel for respondent No.3 vehemently contended that she had filed her earlier rent case for eviction of petitioner on the grounds of willful default and personal bona fide need of her son whose marriage was stuck up for want of accommodation. He further contended that respondent's earlier rent case was dismissed for non-prosecution as such instant rent case is not barred by res judicata. He relied on 1989 CLC 2003 and PLD 2012 Sindh 449.

8. I have heard arguments advanced by learned counsel for the parties and scanned the material available on record. It has reflected that respondent No.3 being landlady of the demised premises had previously filed rent case No.473 of 2005, which was dismissed for non-prosecution without recording the evidence of the parties and touching the merits of the case. Thereafter respondent No.3 again filed the instant rent case on both same grounds i.e. willful default committed by petitioner in payment of the monthly rent as well as non-payment of Municipal taxes and requirement of the demised premises for personal bona fide need to accommodate her son whose marriage was being delayed for want of proper accommodation. 9 For appropriate conclusion in view of the principle of res judicata, section 11, C.P.C. is reproduced as under:-- "

11. Res Judicata.

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

10. The mechanism evolved in section 11, C.P.C. for the principle of res judicata reflects that while dealing with bar imposed in said principle, the Court has to strictly examine and keep in mind that the dispute or issue directly or substantially must be between the same parties or any person/legal representative claiming under them under same title for the same cause of action which was finally decided on the merits in former lis by the competent Court. The wisdom behind the scheme of section 11, C.P.C. is that no person should be vexed twicely for the same cause of action and there should be finality of the litigation and also the end of hardship of an individual. It is well settled that if rent case filed earlier by landlord against tenant, which was not finally decided on merits but dismissed for non-prosecution, there would be no bar for seeking eviction of the tenant on the same grounds and principle of res judicata would not be attracted. In case of Mobin Rafique and another v. Rashid Ahmed and 2 others, PLD 2012 Sindh 449, it was observed that dismissal of application or suit or any other litigation or proceedings for default or for non-prosecution cannot operate as res judicata and it is for such reason that fresh suit has been held to be competent in case where earlier matter was dismissed for non-prosecution or default and not disposed of on merits. Principle and question of res judicata applies only if previous lis or proceedings were disposed of or decide on merits and which had directly or substantially decided controversy between the parties. In case of Raza Ali Shah v. Agha Hassam ul Haq and another (1989 CLC 2003), it was observed that grounds of default impairing subletting, and personal requirement in good faith, raised in earlier case dismissed in default being an accruing cause of action, fresh proceedings on same cause, held, would be competent. Earlier case having been dismissed in default, subsequent case was maintained irrespective of question whether principle of res judicata was or was not applicable to proceedings under Sindh Rented Premises Ordinance, 1979. Consequently, in view of the dicta laid down in above case law, undeniably in the case in hand, the earlier rent case filed by respondent No.3 was not finally decided on merits, therefore, the contention raised by learned counsel for petitioner has no legal substance to be considered.

11. Considering the facts and circumstances and case law referred supra, I am of the considered view that second rent case filed by the respondent landlady on same grounds against petitioner is not barred by the principle of res judicata. Petitioner has failed to point out any illegality or material irregularity in the concurrent findings passed by both the Courts below, hence same are just, proper and do not call for any interference. Consequently, instant Constitution petition stands dismissed. ZC/T-5/Sindh Petition dismissed.