' The facts giving rise to this constitution petition are that eviction of the petitioner-tenant was sought by the respondent-landlord by moving an ejectment petition under section 13-B of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be called "the Ordinance"). The house in question was renced out at a monthly rent of Rs, 50 in the year 1971 to the petitioner-tenant who retired from service in the year 1975. It was asserted that the respondent-landlord also retired from Government service on 28th July, 1976 and that despite service of notice the petitioner-tenant failed to deliver vacant possession of the house in question needed for personal use within two months as provided by section 13-B of the Ordinance.
2. The petitioner resisted the petition with the assertions inter alia that in view of dismissal of previous ejectment petition seeking ejectment on the same ground of personal requirement, the present petition was barred by section 14 of the Ordinance, that section 13-B applies to the "Residential Building" and not to the "Scheduled Building" as is the case in the instant case because as already held the petitioner while living in the house is using a portion as his dispensary ; and that the house is neither required for bona fide personal use nor a Scheduled Building can be got vacated for residence.
3. The earlier ejectment petition filed on the ground of default and bona fide personal need was dismissed by the learned Rent Controller on 27th April, 1977 inter alia on the ground that the building being a scheduled building cannot be got vacated for residential purposes. The appeal against this order was also dismissed by the learned Appellate Court on 2nd July, 1977. The ejectment petition filed under the newly-added section 13-B was dismissed on 7th September, 1981 by the learned Rent Controller holding that section 14 of the Ordinance applies and the petition was barred by res judicata and that the building in question is non-residential and the same cannot be got vacated on the basis of personal need for residential purposes and that the landlord- respondent does not require the premises in good faith for his personal use. The landlord- respondent filed an appeal which was accepted vide judgment dated 3rd January, 1983 as the Appellate Court was of the opinion that the rejection of the previous application of the landlord- respondent cannot operate as a bar to the petition subsequently filed on the ground made available ender the newly added section 13-B of the Ordinance section 13-B is applicable to the "Residential Building" and if the Legislature had intended To exclude the "Scheduled Buildings" from the operation of section I3-B, then it would have been so stated specifically in the law itself. It was also observed that the landlord-respondent was well within his rights to seek eviction of the petitioner-tenant from the house in dispute on the ground incorporated in section 13-B as he has proved that he has retired from service and had applied for the eviction of the tenant within six months of the Amending Ordinance IX of 1979. The eviction order so passed in appeal has been assailed in the present constitution petition on the ground that section 13-B of the Ordinance applies only to the residential buildings as defined in section 2 (g) and not to the scheduled building (a term which is separately defined in clause (h) of the same section) as is the case in the present proceedings ; that neither any plea regarding bona fide of the alleged personal need was taken in the petition itself nor the same was established on record nor the appellate Court while accepting the eviction petition gave any finding with regard to the "bona fide" of the alleged personal need. Elaborating the submission it was argued that the bona fide of the personal need has to be established before directing eviction even under section 13-B of the Ordinance. In reply, the learned counsel for the respondent-landlord argued that under section 13-B, summary enquiry is to be held and in the said enquiry the question of bona fides of the alleged personal need not be gone into. The plea is that ejectment order will be granted in case it is proved that despite service of notice the tenant has refused to deliver the vacant possession within a period of two months from the date of receipt of notice, in cases where the landlord has died or where the landlord is a salaried employee and has retired or is due to retire within a period of six months. According to the learned counsel for the respondent, nothing else is to be enquired into and determined by the learned Rent Controller as he has to order summary ejectment of the tenant. It was urged that section 13-B is a complete Code by itself for seeking eviction in the cases of the landlords mentioned in the section itself and that in case other considerations are introduced then the same will result in negating the very purpose to achieve which the said section was added to the Ordinance and that the section will lose much of its efficacy.
4. A bare reading of the section reveals that the section provides a complete code by itself and that the provisions made therein shall have overriding effect as subsection (1) says that notwithstanding anything contained in this Ordinance or any other law for the time being in force, in a case where a landlord has died or where the landlord is a salaried employee and has retired or is due to retire within a period of six months, a notice in writing may be given by such landlord or the widow or minor of the deceased landlord, as the case may be, to the tenant of a residential building informing him that he or she needs the building for personal use and requiring him to deliver vacant possession of the building within a period of two months from the date of receipt of the notice. The right to seek ejectment has also been conferred on a landlord of a residential building who is the wife, husband or a minor child of a salaried employee referred to in subsection
(1) of the said section.
5. Thus a landlord referred to in the section has been given the right t seek ejectment on the ground that he or she needs the building for personal use and this right can be exercised within the period prescribed in the section itself. In this view of the matter the decisions rendered in former proceedings under the Ordinance are not relevant as the right to seek ejectment is to be determined in accordance with the provisions of the bisections itself. These provisions are to apply notwithstanding anything; contained in the Ordinance itself or in any other law for the time being in force. The right so conferred has to be determined in the context of the situation provided and contemplated in section 13-B itself and so reliance on section 14 of the Ordinance was misplaced. It will also be noted that the house in question was rented out to the petitioner at the time when he was admittedly in service. He started his medical practice only after his retirement in 1975. The house in question at the time when it was let out to him was admittedly a residential house and was being used for residential purposes till the time that he started practising medicines. In view of the matter above the conversion in use of part of the house later on would not make it a "Scheduled Building Reference may be invited to Ch. Muhammad Anwar Sipra v. Malik Muhammad Din. In this case the lawyer-tenant had put the residential house to a different use by converting the same into lawyer's office. It was held that putting of the house to a different use by converting a part of it into lawyer's office was in violation of the prohibition contained in first part of clause (b) of section 13 (2) (ii) of the Ordinance. Moreover, the plea that the house in question had been converted into a "Scheduled Building" and that it cannot be got vacated for residential purposes was also not accepted. In Raja Qurban Khan v. Begum M. M. Sharif and another the plea as to change in the character of residential permises was not allowed to prevail despite that the acquiescence of the landlord in the use of the house as a hotel was asserted. It was observed that the house could not have been put co commercial purposes without the consent of the landlord.
Again in Nek Muhammad v. Muhammad Shafi and others it was observed that : "We have perused the rent deed dated the 13th of March, 1973, and find that it clearly recites that the petitioner was taking on lease a shop, which would indicate that the entire property was a nonresidential bulding at the time the petitioner took it on rent from the respondents, if subsequently he has also started residing in the Chaubara comprised in the building, it does not mean that it has been converted into a residential building. As the entire property had been taken by the petitioner under a single lease deed as one unit, the Courts below were justified in treating the property as being a shop in accordance with its description and use at the time it was leased out to the petitioner."
It will, therefore, be seen that in the instant case the subsequent user of part of the house as a Clinic would not be sufficient to bring the residential house in the category of scheduled building.
The view which prevailed with the learned Rent Controller and the learned Appellate Court in the earlier proceedings was contrary to the law declared by the Supreme Court. The orders of the Rent Controller and the Appellate Court proceeding on erroneous view of law cannot be allowed to be set up a ground of attack and as a basis for invoking equitable constitutional jurisdiction. The 'B building from which the ejectment was sought by invoking the provisions of section 13-B of the Ordinance is in law a "Residential Building" and has to be treated as such, thus the ejectment petition was competent and maintainable. In this view of the matter the question whether section 13-B applies to "Scheduled Buildings" need not be gone into in this case. This brings me to the question whether "bona fide" of the need of the residential bulding for personal use is to be pleaded and established or that ejectment order is to follow as a matter of course in case and landlord referred to in the section merely establishes refusal of the tenant to deliver vacant possession despite service of notice. I have noted above, the arguments advanced by the learned counsel for the respondent-landlord in this respect. His main plea was that some distinction has to be made between the provisions contained in sections 13-B and 13 (3) of the Ordinance and that under section 13-B summary ejectment of the tenant is to be ordered. No doubt, the intention of the framers of section 13-B is that in cases of landlords referred to in the said section, the Controller is to order ejectment summarily but that does not mean that the "bona fide" of the need is neither to be established nor is to be gone into and that a landlord referred c to in the said section is to get1 2 3 an ejectment order just for the asking. The works "he or she needs the building for personal use" employed in sub-section (1) are not without purpose. Subsection (6) of section 13-B may be reproduced here for ready reference :- "On an application being made to him under subsection (5) the Controller shall issue a notice to the tenant and on being satisfied with the bona fide of the request of the landlord or the widow or minor orphan of a deceased landlord, shall order the summary ejectment of the tenant."
In view of above it is crystal clear that bona fide of the request, i,e,, that the landlord needs the building for personal use, is to be established by producing satisfactory material and the ejectment is to be ordered only when the Controller is satisfied as to the bona fide of the request made. By going into the bona fides of the request, section 13-B would neither lose its effectiveness nor the section would be tendered redundant nor all the conditions which are relevant for seeking ejectment under section 13 (3) o the Ordinance would become applicable to the petition under section 13-B. The distinction in the two sections is apparent and the grounds given for seeking ejectment in one provision cannot be read into the other though some of the grounds provided may seem to be same or similar. I have no doubt in my mind that the question of bona fide of the request has to gone into before ordering ejectment of a tenant. The Additional District Judge while accepting the appeal admittedly did not go into this question and as such the jurisdiction was exercised illegally. In this view of the matter, there is no alternative but to quash the impugned order and to remand the case. The result is that the appeal shall be considered to be pending and shall be decided afresh in accordance with law and the light of the observation made above. This petition is, therefore, accepted but there shall be no order as to costs. PLD 1981 SC 491 1980 SCM R 590 1983 SCM R 180