This is second appeal against the orders dated 7-4-1979 and dated 21-8-1980 passed by the learned Rent Controller Ii, Karachi and learned 5th Additional District Judge, Karachi respectively, in Rent Case No. 2926/73 and Rent Appeal No. 292/79.
The relevant facts leading to the filing of the above appeal are that the appellant, who is a landla3y of a bungalow situated at Father Gemeni's Road Jamshed Quarters, Karachi, had let out the ground floor to the respondent for running a Poly clinic. The above rent case was filed for ejectment on the grounds of default, making alterations and thereby impairing the value of the property, subletting and personal requirement. The above application was resisted by the respondent.
The appellant in support of her application examined herself and also examined her son Nasir Wahab, whereas, the respondent examined himself in opposition to the above application. The learned Rent Controller through his aforesaid order dated 7-4-1979 dismissed the above rent case on all the above grounds. The appellant being aggrieved by the above order filed the aforesaid Appeal No. 292/79, which was also dismissed by the learned Vth Additional District Judge, Karachi.
The appellant being aggrieved by the above two orders has filed the present appeal.
2. (a) In support of the above appeal Mr. Munawar Abbas has urged the following two points
(i) That there was no justification to condone the default of 16 days by the two Courts below.
(ii) That the personal bona fide requirement was proved and, therefore, both the Courts below misdirected themselves in holding that the appellant failed to prove her bona fide personal requirement.
(b) On the other hand, Mr. Nisarally, learned counsel for the respondent has urged following points
(i) That the finding on the question of default is in consonance with the evidence on record and that both the Courts have rightly exercised the discretion in declining to grant the ejectment on the above ground.
(ii) That the bona fide personal requirement was not proved inasmuch as admittedly the appellant was in possession of the first floor having 7 rooms.
(iii) That in any case the appellant's application on the ground of personal requirement could not have been granted as wanted to convert a non-residential building into a residential building.
3. Reverting to the first contention of the learned counsel for the parties on the ground of default, it may be observed that the finding of the two Courts below seems to be in consonance with law. 1t has come on record that the respondent had issued a cheque (Exh. 15) dated 21-12-1973 for a sum of Rs. 2,000 towards the rent for the month of November and December, 1973 which according to the respondent was not encashed by the appellant. Furthermore, the respondent has also produced the coupons of the money --orders Exhs. 16, 17, 18 and 19, which indicate that he had remitted the rent which was not accepted. Thereafter, he filed an application namely, Rent Case No. 225/74 for depositing of the rent in the Court and has been depositing the same. It maybe observed that according to the learned counsel for the appellant there was default of 16 days in payment of rent for the month of November, 1973 as the rent case was filed on I1-12-1973. In my view, both the Courts below have exercised discretion properly in view of the fact that the respondent made various efforts to tender rent. Furthermore, it is highly improbable that the respondent would not have been willing and ready to tender rent, particularly in view of the background of the case, namely, that the parties were not on good terms as there were some criminal cases pending between the parties in respect of the tenement in question. The above concurrent finding does not call for any interference by this Court in a second appeal.
4. Referring to the question of personal requirement, it may be observed that the appellant case was that she was living on the first floor and was in occupation of four rooms and that she needed the ground floor in order to accommodate herself and her son with his wife and four children. It may be observed that the appellant during the pendency of the present litigation, obtained possession of 3 remaining rooms on the first floor from her tenant by filing an ejectment case. It also seems that during pendency of the rent case her husband who used to reside in Iraq and used to visit Pakistan after every year or two had expired. The following facts stand proved.
(i) That the appellant is putting up alone on the first floor and is in possession of 7 rooms.
(ii) That her married son Nasir Wahab along with .His wife and four children is putting up in a rented premises.
It has been urged by the learned counsel for the respondent that since the appellant is in possession of the entire first floor having 7 rooms she was unable to prove her bona fide personal requirement. It seems that the appellant was in possession of 4 rooms and the remaining 3 rooms on the first floor were let out to one Najmul Hassan. 1t has come on record that the appellant had filed an ejectment case against the said Najmul Hassan and had obtained an ejectment order. The appellant has confirmed before me that she has obtained the possession of the above 3 rooms about a year back. The number of the rooms now available with the appellant may be sufficient accommodation to accommodate her and her son's family, but according to the learned counsel for the appellant she being an old lady wishes to occupy the ground floor and that choice rests with her and not with the tenant. In support of the above submission Mr. Munawwar Abbas has referred to the cases of Adamali Hussainali v. Rubab Bai (PLD 1965 Kar. 408), .Sabumal v. Kikaram alias Humandas (1973 SCMR 185), Punjab Hardware & Machine Tools Ltd., Karachi v. Hyderalt (PLD 1976 Kar. 233) and Mis. Honest Trading Company Karachi v. Mst. Sana (PLD 1977 Kar. 80
5. (a) As regards the case, reported in PLD 1965 Kar. 408, it may be observed that Qadeeruddin, J.
(as he then was) while construing section 13(3) (i)(a) of late West Pakistan Urban Rent Restriction Ordinance, 1959 held that the expression "for his own occupation" is to be given liberal interpretation as to include not only the need of family, dependents and persons essential for such occupation; but also all other genuine requirement of the landlord, including the requirement for better and more convenient accommodation. In the above case .The landlady had applied for ejectment on the ground of per--sonal requirement for the reason that her husband was ill and the tenement in dispute was suited to her requirement. The ejectment application was granted on the above ground.
(b) With reference to the case reported in 1973 SCMR 185, it may be stated that in the above case the Supreme Court while declining to grant leave to appeal observed that "if a landlord possessed more than one house in the same urban area, the choice as to the house in which he would like to live himself is-surely a matter within his prerogative and discretion and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside".
(e) Referring to the case, reported in PLD 1976 Kar. 233, it may be mentioned that a learned Single Judge of the erstwhile High Court of Sind 8t Baluchistan while construing section 13 (3) (a) (ii) held that the landlord's option to chose suitable premises is his prerogative and could not be denied by the tenant or the Rent Controller.
(d) With reference to the case, reported in PLD 1977 Kar. 80, it will suffice to observe that a learned Single Judge of this Court while construing sections 13(2) and 15 (4) held that for non-residential accommodation a landlord can apply on the ground of personal requirement for himself or for his male children. It was further held that the above provision of law does require that the landlord's male children should be economically dependent upon the landlord.
6. As pointed out hereinabove, that it has been proved that the appellant is putting up alone and her son with his wife and four children are living in rented premises. It is true that normally 7 rooms on the first floor would have been sufficient accommodation to accommodate the appellant and her son's family, but since she is an old lady of about 60 years she wishes to reside on the ground floor. As observed in the above Supreme Court and Karachi cases that choice rests with the landlord or with the landlady, and, therefore, she could have applied for the ejectment on the ground of her per--sonal requirement for the ground floor. Both the Courts below have misread the evidence and have erred in holding that the personal requirement of the appellant has not been proved. It may also be pertinent to observe that during the course of arguments the learned counsel for the appellant submitted that as a matter of fact the respondent was not using the premises as he has constructed a very big clinic in Gulshan-e-Iqbal, Karachi and the tenement in question was lying vacant. In order to verify the correctness of the above submission, I by an order dated 18-4-1982 appointed the Nazar of this Court as commissioner to visit the site and to submit his report. The Nazar in compliance with the above order has submitted his report dated 22-4-1982, which indicates that only three portions of the floor P. e. (1) passage used as secretary's room, (fl) main hall used as sitting room, (iii) consultation room of the doctor appeared to be in use for clinical purposes, whereas the remaining portion of the floor consisting of 6 rooms were not being used for clinical purposes, but they were either lying vacant or used as Chowkidar's rooms and servant quarters. He also reported that there was no medicine of any kind in the premises, there was no nurse or compounder present at the time of the visit by the Nazar between 1-30 p. m. And 2-05 p. m. Even if I were ignore the above report of the Nazar on the ground that in a second apps additional evidence cannot be looked into without complying with the provisions of Order XL1, rule 27, C. P. C. I am inclined to hold that the personal requirement of the appellant stood proved on the basis of the evidence on record.
7. (a) Reverting to the contention of Mr. Nisarally that admittedly tire premises in question were let out for running a Poly-clinic and, therefore, the appellant is not entitled to apply for ejectment on the ground of personal requirement for residential purpose as the premises in question are non- residential, it may be observed that he has referred to the cases of Jamil Ahmed v. Sultana Jehan Begum (PLD 1974 Kar. 319), Muhammad Bashir v. Sultan Mahmood Khan (PLD 1975 Lah. 254and Gul Afzal Khan -v. Muhammad Hanif Arif (PLD 1979 Lah. 398
(i) In the above first case of Kar. Of 1974 it was held by a learned Single Judge that non-residential building such as shop cannot despite the existing of good faith be given to a landlord for residential purposes,
(ii) As regards the case reported in PLD 1975 Lah. 254. It may be stated that a learned Single Judge of the Lahore High Court while construing the provisions of sections 2 (g) and 2 (d) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, observed that the word "building" means even a part of the building and that portion of a building let out by a landlord and used by the tenant exclusively for non-residential purposes despite the fact that the rust of the building is used by the landlord for residential purposes would not render the portion let out to the tenant as residential building and the landlord would not be entitled to secure vacation on the ground of his personal use for residential purpose.
(iii) Referring to the last case reported in PLD 1979 Lah. 398, it will suffice to observe that the same learned Single Judge of the Lahor6--High Court (Aftab Hussain, J. As he then was) reiterated his previous view, reported in the above Lahore case of 1975.
(b) It may be observed that the respondent in his written statement has not raised any plea to the effect that the appellant cannot apply for ejectment on the ground of personal requirement for residential purpose for the reason that it was used for non-residential purpose, nor there is any discussion on this aspect, in the two orders under appeal. However, Mr. Nisarally, learned counsel for the respondent has urged that since it is a legal point as it is an admitted position that the premises in question were let out for running a Poly-clinic which is a ton-residential purpose, he is entitled in law to raise the above point as this Court will have to take into consideration whether the application on the ground urged is sustainable in law. The above legal position canvassed by the learned counsel for the respondent seems to be correct. However, I am inclined to hold that in order to determine whether a particular premises are non-residential or residential inter alia following facts are to be taken into consideration
(i) Whether the building is situated in a resident[al area 7
(ii) What is the type of construction of the building, whether it was intended to be used as a residential unit or as a commercial unit ?
(iii) For what purpose it was used ?
(iv) Whether the purpose was changed with the permission of the Rent Controller under section 11 of the late Ordinance.
It is an admitted position that the building in question is residential bungalow having two storeys, situated in a residential locality surrounded by residential bungalows and not on the main road but in a lane. It is also admitted position that the above bungalow was constructed for residential purpose and that its purpose was not changed with the, permission of the Rent Controller under section 11 of the late Ordinance. The first floor of the bungalow has been used for residential purpose. In my view, merely the fad that the ground floor was rented out for running a Poly-clinic will not debar the appellant from applying for ejectment on the ground of personal requirement for residential purpose. If I were to accept the contention of the learned counsel for the respondent, it will lead to absurd result. In other words, if a landlord lets out a portion of a bungalow, which is a residential unit for operating a clinic or for any other purpose without the permission o the Rent Controller for converting the purpose under section II of the to Ordinance, it will mean that for all time to come, he cannot apply for ejectment of the tenant on the ground that he and his family need the tenement for residential purpose and, that he will be bound to continue to us the said portion of the bungalow for other purpose than the residential pus in spite of contravention of building bye-laws or of the approved building plan. Furthermore, a clinic having residential accommodations for the patients and the staff cannot be equated with a commercial premises like shop etc.
8. For the aforesaid reasons I allow the appeal on the ground of per--sonal requirement, but I grant four months time to the respondent from today on the condition that he shall continue to deposit rent in terms of the Rent Controller order till the expiry of the above period. Furthermore, in case the respondent fails to deposit rent of any month the appellant shall be entitled to file an execution application without waiting for the expiry of the four months period. Furthermore, in case the respondent fails to vacate the premises in question on the expiry of four months period, the Rent Controller shall issue a writ of ejectment without any further notice to the respondent.
There will be no order as to costs.