ASLAM RIAZ HUSSAIN, J.--This appeal is directed against the judgment of the Lahore High Court accepting the respondents' ' S. A. O. In a rent matter.
2. The facts leading to the present appeal, briefly, are that Ch. Muhammad Anwar Sipra, took on lease the first and the second flours of a house in Lahore from Mst. Saeeda Zahoor Fatima, the owner of the house. Lease Deed (Exh. AW-3/1) was executed between them on 10-6-1970.
3. According to, the appellant, who is an Advocate, 'he started residing in the said premises alongwith his family and also established his office in a portion thereof. Mst. Saeeda Zahoor Fatima sold the property in question to Malik Bahauddin, Advocate (respondent No. I who was the predecessor---in-interest of respondents 2 to 6), on 7-6-1972. Malik Bahauddin sent a notice under section 13-A of the Rent Restriction Ordinance, 1959, to the appellant. The latter thereupon attorned him as the landlord, and started paying the rent to 1him.' After a period of about 1i years, on 1-12-1972, Malik Bahauddin (respondent No. 1) filed an ejectment application against the appellant on the grounds of--
(1) requirement of the premises for personal use ;
(2) making an unauthorised construction on the top floor
(3) causing damage to the property as a result of the aforementioned unauthorised construction, and
(4) default in payment of rent.
The tenant (appellant) denied the above-noted assertions and pleaded that since he was using a portion of the house as his lawyer's- office, it has become a "scheduled building" and as such the landlord could not get It vacated for his residence.
4. On the basis of the pleadings of the parties the following five issues were framed :- "(1) Whether the petitioner requires the property for his personal use and for his family member ? O. P. A.
(2) Whether the respondent has made some unauthorised construction and has violated the terms of tenancy and is liable to be ejected 7 O. P. A.
(3) Whether, the respondents have damaged the property and its value and its utility is impaired ? O. P. A.
(4) Whether the respondent has paid or tendered the rent in accordance with law ? O. P. R.
(5) Whether the property in dispute is a scheduled building and what is its effect 7 O. P. R.
(6) Relief."
5. By his order dated 9-7-1977, the learned Rent Controller decided Issue No. 1 in favour of Malik Bahauddin (respondent-landlord). With regard to Issues Nos. 2 and 3, he held that unauthorised construction had been made by the tenant but had not caused any damage to the property. With regard to Issue No. 4, he held that the default in payment of rent had not been proved. With regard to Issue No. 5, he held that since the premises in question was a "scheduled building", it could only be got vacated for scheduled purpose, but he held further that it was evident from the statement of Malik Bahauddin made during the cross-examination that. He wanted the premises for use as a scheduled building, i.e. not only for his residence but also for use as office, because his present office was insufficient for his needs and requirements. By order dated 9-7-1--77, the learned Rent Controller, ordered the appellant's ejectment on the ground of personal need as a scheduled building.
6. The appellant-tenant filed an appeal against this order before the District Judge, which was accepted by the learned Additional District Judge, on 7-3-1978, who held that since the house in question had been converted into a 'scheduled building' it could not be vacated for residential purpose, Specially, when Malik Bahauddin, respondent, had his own office in the same building and he had not alleged that that portion was insufficient for the said purpose. He held further that mere unauthorised construction was not sufficient for ejectment of the tenant under section 13(2)(iii) of the Rent Restriction Ordinance, 1959, without proving any damage to the building or impairment of its value or utility, which the landlord had .Failed to prove.
7. It may be mentioned that while arguing the appeal before the learned Additional District Judge, the counsel for the appellant-landlord (respondent No. 1) had conceded with respect to Issue No. 2, that ejectment could not be directed merely on the ground of unauthorised construction, unless it was shown that the said construction had materially impaired the value or utility of the premises in question.
7-A. Aggrieved by this judgment of the Additional District Judge, Malik Bahauddin (landlord) challenged it through an S. A. O. In the High Court which was accepted vide the impugned judgment dated 2-6-1979.
The High Court observed that the above-noted concession before the learned first appellate Court had been made, by the landlord's counsel due to misconception with regard to provision of, law applicable to the case, inasmuch as he had erroneously believed that the provision applicable to the case was section 13(2)(iii) of the Rent Restriction Ordinance, according to which the unauthorised construction must be shown to have caused damage to the demised building or to have impaired its value before ejectment can be ordered on the ground of such construction, whereas, in fact, the provision applicable to the case was section 13(2)(ii)(b) (second portion), which provides that a tenant can be evicted where the Rent Controller is satisfied that- "(ii) the tenant has, without the written consent of the landlord-
(b) used the building or rented land for purpose other than for which it was leased or has infringed any conditions of the tenure on which the building or rented land is held` by the landlord."
The learned Judge in Chamber proceeded to observe that although the rent deed (Exh. A. W. 3/1) does not specifically mention any clause prohibiting any construction by the tenant without prior permission of the landlord, the conditions of tenancy would be governed by the principles underlying section 168(p) of the Transfer of Property Act. The learned Judge observed that although the Transfer of Property Act is not in force in the Punjab yet the principles underlying the provisions, which are in consonance with justice, equity and good conscience, can be invoked. The learned Judge then observed that applying the principles behind section 108(p) of the Transfer of Property Act, a tenant cannot be allowed without the consent of the landlord to deal with the tenanted property as if he was its owner, and to interfere with the structural construction by making additions or alterations thereto. He, therefore, held that the tenant in this case had violated a term of the tenancy, in contravention of section 13(2)(is)(b) and ordered his (i.e. petitioner's) ejectment from the premises in question.
8. The appellant then filed a Civil Petition before this Court and Leave was granted vide order dated 25-6-1979, to consider whether the learned High Court had not erred in holding that the above-noted concession on Issue No. 2, made by the landlord's counsel was purely on a question of law and could he allowed, to be withdrawn and, secondly, whether the High Court had erred in applying the principles of clause (p) of section 108 of the Transfer of Property Act, to the case in hand, for coming to the conclusion that the unauthorised construction in the present case amounted to infringement of a condition of the lease and as such came within the mischief of section 13(2)(ii)(b) of the Rent Restriction Ordinance.
9. We have heard the counsel - for the parties at length and considered the aforementioned question. We are of the view that even if the provisions of clause (p) of section 108 of the Transfer of Property Act, were not to be invoked, the tenant in this case would be liable to ejectment under section 13(2)(ii)(b) of the Rent Restriction Ordinance. It would be noticed that the premises had been mentioned in the lease deed as a house. Although the lease deed is silent about the use to which the house was to be put, yet considering that it is mentioned in the Lease Deed as a house, secondly that the premises in question consist of the first and the second floor of the building, it is evident that the said premises were leased out on the condition that it would be used for residential purpose. Therefore, by putting it to a different use by converting a part of it into a lawyer's office, the appellant had evidently infringed the first part of clause (b) of section 13(2)(ii) which prohibits a tenant from using a building for a purpose other than for which it was leased out. Moreover, he can also be deemed to have infringed one of the conditions on which he had evidently taken the house on lease, i.e. To use it for his residence. As such he was also guilty of contravening the second portion of clause (b) of section 13(2)(11).
Again, since the Lease Deed does not contain any clause permitting. The tenant to make any construction on the building without the landlord's, consent, therefore any construction made by the tenant without the permission of the landlord would evidently be against the written agreement.
10. Moreover, we are of the view that there is sufficient evidence on the record in this case to show that the landlord wanted the premises as a scheduled building, i.e. for the use of his office as well as for his residence.
The parties have not placed on the record the pleadings and statement of the witnesses but it is evident from the following observations in the judgment of the learned Rent Controller that the landlord wanted the premises as a scheduled building :- "Petitioner has admitted in the cross-examination that his office is situated in the same building but (has stated further that) his present office is insufficient of his needs and requirements. He (the petitioner) has deposed in his statement that he needs the disputed premises in good faith, partly for his residence and partly for his business (the running of his office)."
As such, the finding of the learned Rent Controller that the landlord (respondent herein) needed the building, for personal use as a scheduled building, was correct and was wrongly set aside by the learned Additional District Judge.
11. In view of the above discussion we hold that the learned first appellate Court was not justified in setting aside the decision of the learned Rent Controller. Consequently, we feel that irrespective of whether or not the concession by petitioner's counsel before the Additional District Judge, with respect to Issue No. 2, has been wrongly allowed to be withdrawn by the High Court or whether the High Court has erred in applying the principles underlying the provisions of clause (p) of section 108 of the Transfer of Property Act, the order of ejectment passed by the Rent Controller is maintainable for the reasons given in para. No. 6, above.
12. The Appeal is consequently dismissed and the order of the learned Rent Controller restored.
The petitioner is, however, given two months time to vacate the premises, subject to payment of rent.