' IFTIKHAR MUHAMMAD CHAUDHRY, C J. -This petition for leave to appeal has been filed against the judgment dated 4th March 2005 passed by Lahore High Court, Lahore whereby Writ Petition filed by petitioners has been dismissed.
2. Facts in brief, leading to filing of instant petition are thatpetitioner Munir Ahmad Naulakha etc. Filed an ejectment petition seeking eviction of the respondents from the suit property comprising two flats situated on the 1st Floor, Fazal Building, Cooper Road Lahore, on the averments that the premises in dispute is bonafidely required to them for their personal use and occupation for the expansion of their business. Respondents contested the ejectment petition by filing written reply.
Learned Rent Controller, after framing issues arising out of the pleadings and recording evidence, so adduced by the parties, dismissed the application vide order dated 21st July, 1999. The said order was reversed vide judgment dated 13th March, 2000, in appeal filed by the petitioners before the Additional District Judge Lahore and the respondents were directed to hand over the vacant possession of the suit property to the appellant within four months from the date of passing of the judgment. Feeling aggrieved the petitioners approached the learned High Court by way of filing writ petition, which was allowed vide judgment dated 20th July, 2001 and the order passed by the learned Appellate Court was set aside as a result whereof the case was remanded to the Trial Court for a fresh decision by providing an adequate opportunity to petitioners to cross-examine the respondents as required under the law. In post-remand proceedings, learned Trial Court again dismissed the application of petitioners vide judgment dated 22nd January, 2002. Petitioners, feeling dissatisfied from the judgment/order of the Trial Court, preferred appeal before the Appellate Court, who vide judgment dated 8th September, 2003 set aside the dismissal order passed by the Rent Controller and allowed Ejectment application. Being aggrieved from the judgment of the Appellate Court, respondents preferred Writ Petition before the Lahore High Court Lahore, which has been accepted vide impugned judgment. As such instant petition has been filed.
3. Learned counsel appearing for petitioners contended that in a composite building, a residential accommodation can be used by the landlord for non-residential purposes without seeking permission of the Controller in terms. Of section 11 of the Punjab Rent Restriction Ordinance 1959 [hereinafter referred to as "the Ordinance. According to him, in the cases in which ejectment has been sought by the landlord for personal bona fide use and occupation of a residential premises, for the purpose of using it as non-residential purposes, the section 11 of the Ordinance envisages no prohibition in this behalf.
4. Learned counsel appearing for caveat contended that status of a composite building i,e, residential and non-residential, cannot be changed unless permission has been granted by the Court.
5. We have heard learned counsel for the parties and also gone through the impugned judgment carefully. From the arguments so advanced by both of them, question emerges for examination "as to whether in instant case, petitioners were obliged to obtain permission from the Controller for the purpose of using a residential flat for nonresidential purposes, which is being used as an office of M/s. Aattir Enterprises, being run by the predecessor-in-interest of the respondents. Sections 2(d) and 2(g) of the Ordinance define non-residential and residential buildings as follows:-- "2(d)"non-residential building" means a building being used solely for the purpose of business or trade.
2(g) "residential building" means any building which is not a non-residential building."
A perusal of above provision of law suggests that status of a residential building is distinct and different from non-residential building. So far as, the non-residential building is concerned, this definition includes the buildings which are used for commercial purposes e.g. Shops etc. Whereas residential building includes the area which meant/declared for dwelling purposes.
6. From the above definition yet another type of building can be identified namely 'composite building' which includes its residential and non-residential portion. As per the facts of instant case, the flats, subject-matter of the proceedings are located on the first floor of the building, whereas there are statedly a good number of shops on the ground floor. Thus the status of the portion of the building i,e, residential and non-residential, would remain intact, unless changed otherwise. At this juncture, reference to section 11 of the Ordinance would not be out of context, which prohibits conversion of residential building and non-residential building, subject to permission in writing of the Controller. Violation of this section calls for imposition of penalty under section 19 of the Ordinance. (Ordinance VI of 1959). Thus, it is held that status of non-residential building cannot be changed into residential building, notwithstanding the fact whether commercial activity is going on therein or not. Learned counsel for petitioners candidly conceded that no permission had been obtained for changing the status of the building under section 11 of the Ordinance but simultaneously explained that there was no necessity to do so because personal requirements of a person to use a building according to his choice, including non-residential.Purposes would not attract to the provision of section 11 of the Ordinance. We are not inclined to associate ourselves to the arguments advanced by learned counsel. This Court has examined the proposition under discussion in the case of Qurban Khan v. Begum M.M. Sharif (1980 SCM R 590). Relevant para therefrom is reproduced hereinbelow for convenience:- "Furthermore, the petitioner seems to be faced with another difficulty, and in that behalf reference may be made to section 11 and section 19 of the Rent Ordinance 1959, which respectively run as under:--
11. No person shall convert a residential building into a nonresidential building, except with the permission in writing of the Controller, and
19. (1) If any person contravenes any of the provisions of subsection (1) of section 10, section 11 or section 18 he shall be punished with fine which may extend to one thousand rupees."
' The above view of this Court has been reiterated in the case of Amjad Ali Shah v. Iqbal Ahmad Farooqi (PLD 1985 SC 242) as well as in the case of Habib Bank Ltd. v. Anis Ahmad (2001 SCM R 981).
Relevant para.From the last mentioned judgment is reproduced hereinbelow:-- ' We regret we cannot concede to thishyper technical objection, particularly when this was not taken up before the High Court. It is not denied that the building comprising of the rented premises was originally residential building. The change in character of residential building into non- residential building it would imply that although the building may be residential, the same or part thereof may be let from non-residential purpose. It would not be implied that the said conversion will permanently change the character of the building for the purpose of the eviction on the ground of personal requirement."
From above discussion it is concluded that petitioners had no authority to convert flats, in dispute, into non-residential premises for the reasons that the tenant had already running an office of M/s. Aattir Enterprises because such activity can be considered as an ancillary one, in a building which is otherwise a residential building and for such reason, the High Court had rightly declined to grant relief to the petitioners.
' For the foregoing reasons, petition is dismissed and leave declined.