P L D 1988 Supreme Court 76 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑‑Appellant is the owner/landlord of a portion of property No. 53‑A, Haider Road, Rawalpindi, and the respondent is the tenant of the appellant in respect of the aforesaid portion of the property comprising a hall, two rooms and a stare at a monthly rent of Rs.1,

250. The property is admittedly let out f6: commercial purpose and is being used as a shop. The other portion of the property is in occupation of some other tenants. On 29th June, 1982, the appellant filed an application for ejectment against the respondent in respect of the aforesaid premises on the ground of personal need which was dismissed by an order dated 20th October, 1983, by the Rent Controller and this order was upheld by the Additional District Judge vide judgment dated 11th December, 1984. The order of the Rent Controller dismissing the ejectment application is not on record but from the appellate order, it appears at the relevant time the appellant, who is a qualified advocate, had a law office in the Satellite Town which he shared with another Advocate Kh. Akhtar Ali. It seems in his ejectment application the appellant had only pleaded that the premises were required in good faith for his personal occupation, but when he appeared in evidence as his own witness he asserted that he required the premises due to the fact that he is handicapped on account of impairment of hearing and therefore could not successfully carry on his legal profession. On this basis it was contended by the respondent before the appellate Court that his testimony was not in consonance with his pleadings and as such his plea was not bona fide. The other argument was that the appellant had not mentioned the fact that he was occupying another premises in the same urban area which he had to prove was not sufficient for his need. The learned Additional District Judge accepted this argument as a ground besides other reasons to uphold the finding of the Rent Controller against the appellant. In his judgment in this regard he observed:‑‑ "The appellant in his application for ejectment simply mentioned that he requires the disputed premises for his personal need. The appellant when appeared as his witness deposed that he is hard of hearing and cannot adjust himself in the legal profession. Therefore, he wants to do his business in the disputed shop; but this explanation was not mentioned by him in his application."

2. These two orders passed against the appellant were challenged in a writ petition in the High Court of Lahore, Rawalpindi Bench, Rawalpindi, but this petition was dismissed as per order dated 10th July, 1984, with the following observations:‑‑ "Learned counsel states that he would like to bring fresh application for ejectment on a new ground that the petitioner being hard of hearing has not been able to establish himself as a Lawyer in the legal profession and that he needed the shop in dispute for personal need to run some business. In the ejectment petition out of which the present writ arises, he had pleaded that he required the shop for personal use without explaining his physical disability and inability to establish in the legal profession. Obviously if these two grounds could not be raised so far in the present petition, there may be justification to raise them because both relate to questions of fact. It is, of course subject to all just exceptions. With these observations the writ petition is dismissed as withdrawn. "

3. In view of the above the appellant brought a fresh ejectment application on 25th July, 1984, out of which the present appeal has arisen, in which he took the following specific pleas:‑‑ "That the respondent is liable to ejectment from the shop in its occupation as the petitioner requires the same in good faith for his own use in that he intends to start a business of his own in the shop in question of electrical goods and appliances. The petitioner is an Advocate but because of being hard of hearing, he is handicapped and for this reason has not been able to make any headway in the legal profession. He has accordingly decided to abandon the legal profession, and to start the aforesaid business in the premises in occupation of the respondent. Although there is a set of three other shops adjacent to the shop in dispute belonging to the petitioner as also 4 shops on the rear of the main building, belonging to the petitioner, yet the shop in occupation of the respondent is more suited to his requirement than the other shop. Hence the proceeding for its eviction." In this fresh application, appellant also faithfully described his previous attempt to obtain the premises on the ground of personal need and the grounds on which the same was rejected. The respondent contested this fresh ejectment application and filed a written statement in which, besides, controverting the averments made by the appellant on facts, it took up a preliminary legal objection that the fresh ejectment application was barred under section 23 of the Cantonments Rent Restriction Act, 1963, (hereinafter referred to as "the Act"). The learned Rent Controller on the pleadings of the parties framed the following two material issues:‑‑ "(1) Whether the petition is barred under section 23 of the Cantonment Rent Restriction Act, 1963? O.P.R. (2) Whether the petitioner needs the premises for his bona fide personal use? O . P . A . " Having reached a finding in the negative on the first issue and in the positive on the second issue, the learned Rent Controller by his order dated 26th May, 1985, accepted the application of the appellant and ordered the ejectment of the respondent.

4. Being aggrieved the respondent challenged the decision of the Rent Controller in an appeal before the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was dismissed by a learned Single Judge of that Court vide judgment dated 24th November, 1985. The learned Judge took the view that section 23 of the Act was a bar to the filing of the fresh application and in this behalf the reasons that prevailed with him were summarized in the following portion of the judgment:‑‑ "Thereby, issue about the landlord's requirement of the shop for his personal use was decided against him on merits and his failure to plead the abovementioned two factors was mentioned as one of the reasons to disbelieve his evidence. Former application was not dismissed on any technical ground, therefore, the bar embodied in section 23 of the Act was squarely attracted to the present petition and the Controller's finding under issue No. 1 is not sustainable and it is accordingly reversed."

5. Learned Single Judge also re‑examined the finding of the Rent Controller on the second issue on facts and took a contrary view holding that the appellant had failed to establish the bona fides of his claim. In this regard the line of reasoning adopted by the learned Judge is as follows:‑‑ "Under issue ho. 2, which relates to the question whether the landlord needs the premises for his bona fide personal use, learned Controller has pronounced with regard to his intention, as being bona fide on account of two factors, firstly, that he has expressed his readiness, upon securing possession of the shop in dispute, to surrender his licence to practice as an Advocate, secondly, that in case he did not start the business as pleaded, the tenant will have a right to take back the possession of the shop. These factors may have sufficed for a conclusion under subsection (5) of section 17 of the Act that claim of the landlord to be put in possession is bona fide ‑but, by themselves, they could neither absolve the landlord from his duty to establish his case within the contemplation of subsection (4) ibid nor could, without anything more, establish that the shop was 'needed' by him in 'good faith' for his personal use. Although the term 'good faith' does not convey anything materially different from 'bona fide' yet, the context in which they are used in the two subsections, their implications are different. It can well be that a landlord may in good faith need a premises for his personal use, yet, his request for being put in possession thereof may not be bona fide. Therefore, the Controller's conclusion in this case, that 'the intentions of the petitioner are bona fide', however, well‑founded it may be, could not have led him to the conclusion also that the landlord 'in good faith needs' the shop for his personal use. His findings with regard to the intention of the landlord betrays his incorrect approach to the case. Although he particularly noticed the absence of 'scientific data of clientage/income', yet, he felt satisfied with regard to his bona fides on the basis of the abovementioned two factors but has not at all attended to the question whether the landlord 'needs' the shop in dispute."

6. Being dissatisfied the appellant approached this Court and leave to appeal was granted in order to consider whether the learned Single Judge of the High Court correctly interpreted section 23 of A the Act in the facts and circumstances of this case and whether the appellant was not entitled to the relief sought by him even when he expressed his readiness to surrender his licence to practice as an advocate and start business in the shop in question.

7. Before dealing with the arguments of the learned counsel appearing for the parties section 23 of the Act may be set out for the sake of convenience:‑‑ "Section

23. Decisions which have become final not to be re‑opened.‑‑The Controller shall summarily reject any application under subsection (2) or under subsection (4) of section 17, (or under section 17‑A) which raises substantially the same issues as have been finally decided in former proceeding under this Act." On the legal question it has been urged on behalf of the appellant that the learned Judge in the High Court was not justified to hold that the appellant's petition was barred under section 23 as there was no adjudication of the specific issue raised in the fresh ejectment application in the previous proceedings. On the other hand learned counsel for the respondent submitted that the appellant having chosen to file a writ petition to challenge the appellate decision in the first round of the litigation between the parties, which was dismissed by the High Court, he did not pursue his remedy further, with the result that the finding of fact as regards personal need of the premises by the appellant attained finality and was therefore, immune from challenge by filing a fresh ejectment application on the same ground. In this context he relied upon subsection (4) of section 24 of the Act which lays down that no order of the Controller except by an appeal and no order of the appellate Court made under the Act shall be called in question in any Court by any suit, appeal or other proceedings. So far as subsection (4) of section 24 is concerned we do not find the provisions thereof to be relevant in the controversy before us. These provisions are in the nature of ouster of jurisdiction of the ordinary civil Courts from calling in question the orders passed by the Controller or appellate authority in respect of matters within their jurisdiction. The proceedings filed afresh by means of the second ejectment application by the appellant were not directed to challenge the orders passed in the previous proceedings. Therefore, the more appropriate provision of law to consider in this respect is section 23 of the Act which indeed was relied upon by the High Court in accepting the appeal of the tenant. Now, the provisions of section 23 contain and give statutory effect to the rule of res judicata in its most general form. The mandate of the section is that the Controller shall summarily (which means without adjudicating the matter on merits) reject an application under the specified provisions of the Act, which raises "substantially the same issues", as have been finally decided in a former proceedings. The words put within the inverted commas are important and are to be kept in mind, in order to understand the real import and the meaning of the section. As explained in Wasi Ahmed Rizvi v. Federation of Pakistan P L D 1982 S C 20, Res judicata is a part and a form of estoppel. Res judicata in this sense arises in three ways and it is necessary only to mention the general way in which it arises which has been mentioned as the first category I of cases where such a question comes up as a bar in judicial proceedings as a procedural provision. It has been stated that such cases are "where an issue of fact has been judicially determined in a final manner between the parties by a tribunal having jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties (this is sometimes known as cause of action estoppel). The Principle which the doctrine of res judicata has been applied in the category of cases aforementioned, is that all suits are based upon a cause of action and upon judgment being pronounced the cause of action merges into the judgment and thereafter the same cause of action cannot sustain a second suit, for that no longer exists, unless the cause of action is fresh or recurring one. It is important to note that it is the ground of the decision that operates as res judicata, and a decree without a judgment will, therefore, not be res judicata.

8. The question now is whether the facts and circumstances ?fl this case satisfy the above‑said tests. There is no doubt that in his deposition while appearing as a witness in support of his first application the appellant did assert that because he was hard of hearing he was unable to make any headway, in the legal profession and therefore the necessity had arisen for him to obtain possession of the premises for establishing a business. But as observed earlier and as will appear from the appellate judgment reproduced above, the Court refused to consider this part of the evidence of the appellant, on the ground that such a plea was not specifically raised by him in his application for ejectment. The reason for discarding this evidence and the refusal of the Court to adjudicate the question whether these grounds were sufficient to support the plea of the appellant for possession of the premises on the ground of personal need, was obviously based on the principles underlying Order XIV, rule 1, CPC for framing of issues. One of the categories of materials from which issues arise is the allegations made in the pleading by one side and denied by other. It is obvious from the judgment of the appellate Court in the first round of litigation between the parties that the Court declined to go into this question on the ground that no such plea was taken in the application. In other words the refusal of the Court was based on the fact that the facts asserted by the appellant for the first time in his evidence were not pleaded in the application for ejectment. The plain inference that arises from this is that the issue that was subsequently raised by taking such pleas in the second appliction for ejectment, was not finally decide in the former proceedings as required by section 23, and therefore, cannot be. barred under the said section from being tried in the second proceedings finally. We are, therefore, of the view that the specific issue whether the requirement of the appellant was bona fide on the ground that, on account of the impairment of his hearing he is unable to pursue his career in the legal profession and therefore wishes to establish a business in the premises and is willing to surrender his licence to practice law, not having been finally decided in the former proceedings, the bar contained in section 23 of the Act was not attracted in the present case. See Maula Bakhsh v. Fazal Din (PLD 1982 SC 201).

9. Be that as it may there is another principle of law that comes into play in the facts of this case. It has been laid down by the superior Courts of this country that a party litigating in Court or quasi‑judicial tribunal is required to be consistent and cannot be t allowed to approbate and reprobate or what is called in common parlance, to blow hot and cold in regard to the same matter. In the prior proceedings for ejectment the application of the appellant was dismissed, as discussed above, on the ground that the appellant had not pleaded the facts in his pleadings on which he relied in his oral evidence. The objection to this effect was raised by the respondent himself. In other words the respondent by his own plea prevented the Court from adjudicating the merits of the claim of the appellant on the aforesaid grounds. Having succeeded on that basis in the previous proceedings, the respondent cannot be allowed to turn round t and plea the bar of section 23 to once again shut out the appellant from obtaining relief even when he took up the pleas specifically in his pleading in consonance with the principle pressed at the bar by the respondent. For illustration of this principle, see A.R. Khan v P.N. Boga through legal heirs (PLD 1987 SC 107) and Muhammad Sharif v. Chief Administrat Auqaf etc. (1975 SCMR 104). The argument of the learned counsel for the respondent that the Court did not rely solely on the objection raised by the respondent but reached an independent conclusion that the requirement of the appellant was not in good faith, is without substance because the,reading of the judgment of the learned Additional District Judge in the previous proceedings clearly shows that one of the grounds which influenced the learned Judge in his decision was that facts disclosed in his evidence were not pleaded by the appellant in the application for ejectment and there is no discussion regarding the veracity or sufficiency of those facts qua his claim for bona fide personal need. We are accordingly of the firm view that the plea in bar taken up by the respondent in this case was not available to him.

10. Learned counsel for the respondent argued that the learned Judge in the impugned judgments also disbelieved the evidence of the appellant in this case with regard to his claim for personal need. On reading the judgment however, we find that the learned Judge made certain general observations with regard to the interpretation of the words 'need', 'good faith' and 'bona fide'. He, however, did not apply the law as he postulated to the facts and the evidence in the case. This is clear from para 7 of the impugned judgment in which the learned Judge made the following observations:‑ "In view of my finding under issue No.l that the petition for ejectment is itself incompetent, a detailed consideration of the merits of plea covered by issue No.2 is not called for." We are, therefore, of the opinion that the learned Judge did not undertake a fuller and complete examination of matters arising under issue No. 2 regarding the claim of personal requirement by the We would, therefore, not like to go into this question and would like the parties to avail of the benefit of a decision by the High Court on this issue. We would not like to make any observation with regard to the interpretation of the words mentioned above as they occurred in section 17 of the Act and leave the matter open for a fresh decision even as regards the law in that behalf. It may be clarified and indeed the demand of fairness deem it proper that we also should not be necessarily understood to approve of the view of the law taken by the learned Judge in regard to the second issue. For instance F the proposition laid down by the learned Judge in the following passage of the judgment is rather difficult to subscribe to: "It can well be that a landlord may in good faith need a premises for his personal use, yet, his request for being put in possession thereof may not bel bona fide".

11. With these observations this appeal is allowed, the judgment of the learned Single Judge dated 24th November, 1985, is set aside and the case is remanded to the High Court to re‑register the appeal and decide the same afresh in accordance with law. In the circumstances of the case there will be no order as to costs. M. B. A./F‑26/S 'Case remanded.