PLD 1989 Peshawar 39 (PLP)

‑--S.13‑‑Ejectment of tenant‑ Bona fide requirement of members of amity of landlord‑‑Plea of requirement specifically taken by landlord‑ Effect‑‑Evidence of landlord regarding bona fide requirement of property for his own use in good faith remained unrebutted by any convincing evidence‑‑After death of such landlord his legal heirs were not required to take such plea afresh either by amending the ejectment application or by filing a fresh one. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ‑‑S.13‑‑Constitution of Pakistan (1973), Art. 199 Constitutional jurisdiction‑‑Concurrent findings of Courts below‑‑Concurrent findings of Rent Controller and Appellate Court in regard to bona fide personal need of landlord based on proper appreciation of evidence‑‑Case did not suffer from any legal infirmity or jurisdictional error‑‑Findings would not call for interference in exercise of "Constitutional jurisdiction‑‑Constitutional petition being devoid of merit was dismissed in circumstances. Abdur Rehman Khan for Petitioners. Muhammad Shaft and Hamid Hussain Durrani for Respondents Date of hearing: 20th April, 1988. INAYAT ELAHI KHAN, J.‑‑The facts giving rise to this Constitutional petition are that Sethi Abdul Latif landlord sought eviction of his tenant Haji Shamsher Khan for the godown in dispute, which is located on the ground floor of his residential building, mainly on the ground of his bona fide personal requirement and that of his family members. In the disputed property the tenant was dealing in food grain business which, according to the landlord, also caused nuisance to him and his family members. The ejectment application was vehemently opposed by the tenant and the learned Rent Controller in view of the evidence adduced by the parties came to the conclusion that the allegations of nuisance made by the landlord were not proved. However, it was found that the property was in good faith required for the personal use of the family members of the landlord as the godown is situated on the ground floor of the residential building of the landlord who wanted to use it as a drawing room of his house. It was also noticed that the residential accommodation in possession of the landlord was not sufficient to meet the requirements of his family members. The eviction order prayed for was, therefore, granted in favour of the respondents on 9‑7‑1984. The appeal filed by the petitioners was also dismissed by the learned Additional District Judge, Peshawar on 3‑2‑1986 affirming the finding of the Rent Controller regarding the bona fide personal need of the family members of the landlord. The aforesaid orders of the Rent Controller and the appellate Court are impugned in this Constitutional petition.

2. It may be mentioned that during the pendency of the ejectment proceedings both the landlord and the tenant died and, therefore, their legal representatives were brought on the record.

3. In support of the writ petition it is contended that since the earlier ejectment application of the landlord on similar ground was not pressed and a compromise was effected on payment of enhanced rent vide order of the Rent Controller dated 19‑5‑1969, the present application was barred by the rule of res judicata and liable to be summarily rejected under section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959. This argument is without force as no decision was made by the Rent Controller on the relevant issue between I the parties after holding due inquiry in the matter as the case was compromised and there was no decision on merits. The principle of res judicata is, therefore, not attracted and the present application is not barred on this account. Section 14 of the Ordinance is also not applicable for the reason that the question of bona fide personal need of the landlord was never finally decided in the former proceedings. In Allah Rakha v. Muhammad Shaft (1978 S C M R 437) it was held by the Supreme Court that withdrawal by the landlord of his previous ejectment application on the basis of some private settlement with the tenant does not amount to a "decision" of the l Rent Controller so as to attract the bar of section 14 of the Ordinance to subsequent ejectment application. The next contention on behalf of the petitioner is equally without force that since the landlord had sought eviction on the ground of his personal need, the cause of action being personal in nature did not survive on his death to his legal representatives and they ought to have sought eviction of the tenant on the ground of their own personal requirement by amending the ejectment application or by filing a fresh one. From the perusal of the ejectment application it is clear that Sethi Abdul Latif, deceased landlord, had sought eviction of the tenant on the ground that the property was bona fide required by him for residential purposes because his residential house was not sufficient to meet the requirements of his family members. Mat. Hussan Ara, widow of the deceased landlord, stated that eviction of the tenant was sought by her husband on the ground of personal need because the godown in dispute was located on the ground floor of their residential building which was in good faith required for the use of their children who are of school going age. Since the plea of bona fide requirement of the embers of his family was specifically taken by the landlord in the eviction application, in our view, it was not essential for his legal heirs to have once again alleged their personal need either by amending the eviction application or by filing a fresh one. The contention that the bona fide personal need of the respondents was not proved from 'the evidence is also without any substance. From the evidence of Mst. Hussan Ara P.W.1 and Sheikh Noor Muhammad P.W.2 it is clearly established that the property in dispute was in good faith required by the respondents for their personal use'. The petitioners failed to prove that the real object of the respondents was to enhance the rent or they owned some other residential property suitable for their need. The evidence of the respondents that the property is in good faith required for their personal use stands unrebutted by the petitioners by any convincing evidence. It has been rightly found by the forums below that Mst. Hussan Ara, widow of the landlord, has got four school going children and that she in good faith wanted to use the godown as a drawing room for the benefit of her children.

4. In this view of the matter, the concurrent finding of the Rent Controller and the learned Appellate Court in regard to the bona fide personal need of the respondents is based on proper appreciation of the evidence and does not call for interference in the exercise of our Constitutional jurisdiction. The case does not involve any misreading or non reading of the evidence nor does it suffer from any legal infirmity or jurisdictional error. The writ petition, having no merit, is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. A.A. /661/P Petition dismissed.