2020 YLR 1516 PESHAWAR-HIGH-COURT

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Syed YOUSAF ALI SHAH VS SHOAIB KHAN Ss. 13 & 14---Ejectment of tenant---Default in payment of rent---Bona fide personal need of landlord---'Pagri' amount, payment of---Effect---Earlier, ejectment petition filed on behalf of mother of landlord having been dismissed---Res judicata, principle of---Applicability--- Tentative rent--- Non-payment of--- Effect--- Landlord filed eviction petition on the ground of personal need which was accepted by the Rent Controller but Appellate Court dismissed the same---Validity---Question of personal need and default in payment of rent could not be static---Rejection of an earlier eviction petition would not be a bar under S.14 of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959---Constructive res judicata would only apply when there were identical reasons and circumstances after earlier unsuccessful attempt--- Subsequent ejectment petition could be filed subject to availability of changed situation and circumstances---No time limit could be fixed for changed circumstances and personal requirement--Personal need of landlord had to be genuine---Tenant had committed default in payment of rent which had provided a fresh cause of action to the landlord to file eviction petition---Landlord had personal bona fide need of demised premises and he was ready to give surety to hand over the shop in question to the tenant if he failed to establish his own business in the same---Personal need of landlord could not be defeated by adversely interpreting evidence to reach another conclusion as had been done by the Appellate Court---If landlord had failed to start his own business in the demised premises then rights of tenant had been protected under S.13 (4) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959---Sole statement of landlord was sufficient to prove his bona fide personal need---Landlord had prerogative to choose business of his choice---Mere lack of experience and non-disclosure of nature of business would not disentitle the landlord from claiming ejectment of tenant---Tenant had not deposited tentative rent according to the direction of Rent Controller and his defence should have been struck off---Tenant had committed default in payment of rent and he was liable to be evicted from the demised premises---Tenant had neither claimed for return of pagri amount nor there was any direct evidence with regard to payment of the same---Plea of payment of pagri amount would not make tenancy in perpetuity when it had not been created by a registered instrument---Where amount of pagri had been treated as mutual arrangement between the parties then same had no legal sanctity and it could not be adjusted against rent which had to be paid in accordance with the terms and conditions of tenancy agreement---Impugned order passed by the Appellate Court was set aside and that of Rent Controller was restored---Tenant was directed to vacate demised premises within one month and pay rent for defaulted period---Constitutional petition was allowed in circumstances.