' This position has been filed in the constitutional jurisdiction to call in question an order of ejectment passed against the petitioner by the Rent Controller, Lahore, on 11-2-1979, and affirmed in appeal by the Additional District Judge, Lahore, on 2342-1979.
2. The ejectment petition had been brought by Mst. Khurshid Begum in respect of the western portion of the ground floor of the building, which portion had been rented out to the petitioner, Sh.
Muhammad Asif. The grounds taken were personal use of her children, default in payment of rent and damage to the property. The petition having been contested, a number of issues had been framed but the one material to the case was Issue No, 2 relating to personal use. The case of the landlady was that she was living in the upper storey of the building, comprising two rooms, one store and two harsatis, with her husband, parents-in-law, five sons of whom one was married and two daughters, that her other sons were of marriageable age and that the accommodation at present with her was not sufficient. An attempt was made by the tenant, on the basis of Exh. P. W.
4/7, which is an extract from the Assessment Register, to show that she actually had five rooms but the document was held to be not dependable on account of cuttings and deletions without any initials. Both the Courts below came to a concurrent finding in favour of the landlady.
3. It is to be noted that the ground floor of the building is in two parts, the western being with the petitioner and the eastern with one Munir Ahmad against whom also the landlady had successfully moved an application for ejectment which has given rise to Writ Petition No, 7381 of 1980.
4. Learned counsel first assailed the order of the appellate Court on the ground that the same was not a speaking one. I find no substance in it because the order does contain the relevant facts and the reason for the conclusion reached.
5. It is next contended that the petitioner had not been afforded proper opportunity to rebut the evidence produced by the other side. It appears that the appellate Court, while hearing the appeal,' had discovered that the evidence of Mst. Khurshid Begum, P. W. 6, and her husband, P. W. 5, had been recorded in one case and copied out in the other without those witnesses having been separately examined. The appellate Court had felt that although, according to the observation of the Rent Controller, this had been done on the oral prayer of the parties, the procedure adopted was not legal and as such by order dated 26-5-1979, it had directed the Controller to record evidence of the two witnesses afresh and to refer the same back to that Court. Their evidence was accordingly recorded on 23-6-1979. The petitioner then applied for producing evidence in rebuttal.
The appellate Court on 15-11-1979, permitted his own evidence to be recorded which was done on 22-11-1979. The appeal was, thereafter, heard and decided. The plea that the petitioner should have been allowed to examine his witnesses also, does not carry any weight. The matter concerned the need of the landlady for which she had made out no new case in her subsequent evidence and the petitioner had already had opportunity to produce witnesses. Moreover, her assertion that she had a large number of members in the family and that the accommodation available with her was not sufficient, did not require the production of a number of witnesses for rebuttal. I, therefore, reject the contention.
6. Learned counsel for the petitioner then argued that the premises having been rented out for non-residential purpose, it cannot be got vacated for residential purpose. The plan filed shows that there are five independent shops abutting on the road but that the premises in dispute itself is constructed in the manner of a residential premises as it has rooms, verandahs and courtyards.
Structurally, therefore, the disputed premises is a residential building. The contrary has not been shown. The contention, however, proceeds from the fact that it had been let out for the purpose of a bakery. P. W. 5 did admit that "{{URDU TEXT}}". The question is whether, the fact of the use to which the residential premises is put by the petitioner with the agreement of the landlord, would have the effect of converting it into a non-residential building. Learned counsel relied on Tamil Ahmed v. Mst.
Sultana Jehan Begum (1), Muhammad Bashir v. Sultan Mahmood Khan (2) and Gul Afzal Khan v.
Muhammad Hanif Aril (3). The first cited case does not answer the point because the premises in dispute there had been a shop and let out as such for doing business of a watchmaker and in this context it had been held that possession of such premises could not be given to the landlord for residential purposes. In the second cited case of this High Court, a Single Bench had held that since the disputed portion was being used exclusively for non-residential purpose it was covered by the definition of "non-residential building" and cannot be directed to be vacated for the use of the landlord for residential purposes. The same view had been reiterated by the same Bench in the third cited case of Gul Afzal Khan. A "non-residential building" is defined In section 2(d) of the Punjab Urban Rent Restriction Ordinance, 1959. To mean "a building being used solely for the purpose of business of trade", The words "being used" are. To my mind, to be interpreted in a permanent sense rather in a sense of for the time being. There is a clear distinction between a non-residential building and a residential building. Section 79 of the Punjab Local Government Ordinance lays down that "except with the prior sanction of an urban local council, no building shall be put to a use other than that shown in the sanctioned building plan according to which it was erected or re-erected". The law, therefore, does not envisage the conversion of a residential building into a non-residential one without prior sanction of the municipal authorities. There is a similar prohibition contained in section 11 of the Ordinance itself which reads, "no person shall convert a residential building into a nonresidential building, except with the permission in writing of the Controller". A contravention of this provision is punishable under section 19 of the Ordinance. If, therefore, the parties for their convenience put a residential premises to non-residential use that would not render the building as nonresidential. This view finds support from Muhammad Amin Beg v. Pk Muhammad Khan (4). In this case, a two-storeyed building had been rented out, the ground floor as business premises and the upper one for residential purpose. It was held that :- "The house in question well was let for a composite purpose, namely, business and residence will, therefore, fall under the latter definition {{FOOT NOTE}}
(1) PLD 1974 Kar. 319 (2) PLD 1975 Lah. 254
(3) PLD ly79 Lah. 398 (4) PLD 1965 Lah. 385 {{FOOT NOTE}} ' and under section 13 (3)(a) the respondent could apply to the Rent Controller for the eviction of the appellant from the entire building."
' In a recent case reported as Raja Qurban Khan v. Begum M. M. Sharif and another (1), where the building had been let out not for residential purpose but for using it as a hotel, the Supreme Court had expressed the view that :- "We are, therefore, in agreement with the concurrent view taken by the two Courts below, as well as the High Court, that in the absence of any permission having been obtained from the Controller under section 11 of the Ordinance in this case, the suit house would continue to retain its character as a house, notwithstanding the fact that it was actually being used as an hotel."
' I am, therefore, confirmed in my view that in the circumstances of the present case, Mst. Khurshid Begum was entitled to seek ejectment of the petitioner on the ground of her requirement for residential purposes.
7. Two more objections were raised by learned counsel for the petitioner, one was that the premises having been rented out in September 1976, the need of the landlord could not be said to arise only a year or so thereafter, that is, on 15-12-1977 when she moved the ejectment petition, and secondly that she was on the same ground not only seeking the vacation of the premises rented out to the petitioner but also of the premises rented out to Munir Ahmad which would mean in all 17 rooms, for which she could not be said to have made out any proper case. He stressed that the bona fide of the landlord has to be scrutinized carefully before directing the ejectment and that, in the circumstance, her move to get the entire ground floor vacated could not be held to be bona fide. These are questions of fact and relate to B appreciation of the landlord's need. The need can be said to arise when the question of marriage of her sons comes up. I am, therefore, not inclined to interfere with the finding of the Courts below in this regard.
8. In the result the petition is dismissed though I make no order as to costs. {{FOOT NOTE}}
(1) 1980 SCMR 590 {{FOOT NOTE}}