MUHAMMAD ZAHOOR vs MUSARRAF IQBAL and others
This petition for leave to appeal challenged a Peshawar High Court order directing the petitioner to vacate a shop. The core legal question was whether the withdrawal of an earlier ejectment petition, which involved a dispute over the landlord-tenant relationship, operated as res judicata against subsequent ejectment proceedings initiated by the successors-in-interest of the original transferee. The Supreme Court held that the transfer of the evacuee property to the original owner created a statutory relationship of landlord and tenant between the transferee and the occupant. Furthermore, the Court affirmed the High Court's finding that the previous ejectment petition, which was withdrawn following a compromise, did not result in a determination of the relationship issue; thus, the principle of res judicata did not apply. The Court upheld the High Court's decision, confirming that the statutory relationship persisted after the property's sale to the respondents. The key principle laid down is that the withdrawal of an ejectment petition pursuant to a compromise, without a judicial determination of the contested issues, does not bar subsequent litigation on those same issues under the doctrine of res judicata.
- Does the withdrawal of an ejectment petition pursuant to a compromise operate as res judicata in subsequent proceedings?
- Does the transfer of evacuee property create a statutory relationship of landlord and tenant between the transferee and the occupant?
- Can a successor-in-interest initiate ejectment proceedings if the original transferee's previous petition was withdrawn?
- Section 13, West Pakistan Urban Rent Restriction Ordinance 1959
- Section 30, Displaced Persons (Compensation and Rehabilitation) Act 1958
ORDER
' M.S.H. QURAISHI, J.-- The petitioner is aggrieved by the order of the Peshawar High Court, dated 1- 10-1983, whereby the respondents/ landlords' second appeal was accepted and the petitioner was directed to hand over vacant possession of the shop in question.
2. The shop, which was an evacuee property, had been transferred in favour of one Nizam Din under a P.T.O. And P.T.D. Dated 8-3-1961 and 9-12-1963, respectively. Nizam Din moved an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance for the ejectment of the petitioner on the ground of non-payment of rent. On the petitioner's denial of relationship of landlord and tenant, an issue was framed on that question but before the same could be decided, the parties arrived at a compromise and the ejectment application was, at the instance of Nizam Din, dismissed. He, thereafter, sold the property to the present respondents who later instituted an ejectment proceeding on the grounds of non-payment of rent and personal need. In this proceeding, too, the relationship was denied. The issue was decided against the respondents and in consequence the ejectment application was dismissed by the Rent Controller on 19-2-1979. The reason'for the dismissal was that by the withdrawal of the earlier petition instituted by Nizam Din, in which the question of relationship had been in issue, that question had become res judicata and that since the respondents were claiming under Nizam Din, no such relationship can be said to exist between these and the petitioner. The respondents' appeal before the District Judge failed for precisely the same reason, whereupon they moved the High Court in second appeal which was accepted by the impugned order as aforesaid.
3. It is not denied that the shop in question was an evacuee Property, that it has been transferred under a P.T.D. In favour of Nizam Din, that Nizam Din had served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that the present respondents had purchased the shop from Nizam Din and had themselves also sent a notice to the petitioner. It is also not denied that the petitioner has been in occupation of the property since before the transfer made in favour of Nizam Din. That being so, the High Court was fully justified in holding that the transfer of the property brought into existence a statutory relationship of landlord and tenant between Nizam Din and the petitioner and after its purchase by the respondents, between them and the petitioner. The High Court also found, after examination of the material relevant to the disposal of the earlier ejectment petition of Nizam Din, that the issue of relationship struck in that petition had neither been determined by the Controller nor otherwise dealt with in the compromise and that, therefore, the withdrawal of that petition did not operate as res judicata in regard to that question.
4. Learned counsel lastly urged that there was a plea of estoppel also raised which had yet to be determined but he was unable to mention the basis of such plea.
5. We thus find no merit in this petition which we accordingly dismiss.