' M. M }moos AHMAD, J.-This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, read with Article 2)3 and section 115 of the Code of Civil Procedure is directed against judgment dated 16-6-1980 passed by the learned Additional District Judge, Lahore.
2. The facts necessary for the purposes of this petition, briefly stated, are that respondent No, 3 instituted an application for ejectment of the petitioner from the ground floor of property No, S-71- R-1 known as 3, Edward Road, Lahore, on the grounds of bona fide requirement of the same by the respondent for her personal use and occupation and damage caused to the property by the petitioner whereby its utility had been impaired, inasmuch as, certain additions and alterations in the building were made without the permission of the landlady in violation of terms of tenancy. The tenancy admittedly commenced on 10-4-1972 under a written rent-note.
3. This application was resisted by the petitioner. He also raised two preliminary objections to the effect that the petition has been mala fide filed with a view to have enhancement of rent and that respondent No, 3 had concealed certain material facts and had not come to the Court with clean hands.
4. The petitioner also instituted an application under section 10 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for providing of amenities by respondent No,
3. This application in turn was resisted by respondent No, 3.
5. On the divergent pleadings of the parties,, the following issues were respectively framed in the aforementioned two applications :- ' In Ejectment Application.
(1)Whether the petition is mala fide ? 0. P. R.
(2)Whether the property in dispute is bona fide required by the petitioner for self use and occupation ? 0. P. P.
(3) Whether the respondent has damaged the property in dispute as alleged in para. 2-B clauses
(i) to (iv) ; if so, with what effect ? 0. P. P.
(4) Relief.
In Application under section 10 of the Ordinance.
(3-A) Whether the present petition is not maintainable? 0. P. R (3-B) Whether the respondent is entitled for restoration of alleged amenity as envisaged in para. No, 5 of the petition? O. P. R.
6. In the ejectment application, respondent No, 3 produced three witnesses including herself whilst the petitioner produced six witnesses including himself. In the application under section 10 of the Ordinance, the petitioner produced three witnesses in addition to himself appearing as his own witness whilst respondent No, 3 only appeared herself as R. W.
1.
7. The learned Rent Controller in view of similarity of the questions involved in the two applications and for the reason that the parties are the same decided them by one order. Issue No, 2 was decided in favour of the petitioner and against the respondent and so were the findings on issues Nos. 1 and 3. As regards issues Nos. 3-A and 3-B, the learned Rent Controller decided the first of these against respondent No, 3 whilst the other was decided against the petitioner.
8. As a result of the above findings on the issues involved in the two applications, the learned Rent Controller by his order dated 6-3-1979 dismissed the ejectment application of respondent No, 3 and also dismissed the application of the petitioner under section 10 of the Ordinance. The parties were, however, left to bear their own costs.
9. Feeling dissatisfied with the above-mentioned order of the learned Rent Controller, respondent No, 3 went up in appeal before the learned Additional District Judge, Lahore, who by his impugned judgment dated 16-6-1980, accepted the same, reversed the order of the Rent Controller dated 6- 3-1979 and ordered the eviction of the petitioner from the disputed premises and directed him to hand over the vacant possession of the same to the respondent within a period of one month, leaving the parties to bear their own costs.
10. The petitioner feeling aggrieved has come up in the present Constitutional petition before this Court.
11. The learned counsel for the petitioner contended : ' First, that the provisions of section 13(2) (iii) of the West Pakistan Urban Rent Restriction Ordinance, 1959, are not controlled by the provisions of section 13 (2)(ii) of the Ordinance. He, elaborating his contention, submitted that if the value of the property is increased by additions and alterations then eviction under section 13 (2)(iii) of the Ordinance could not be ordered. It was also urged by him that the purpose of tenancy was to use the building as non-residential and as such suitable changes in conformity with the intended use were made immediately on commencement of the tenancy; that the same were carried out to the knowledge of the landlady and that making of such changes had not impaired the value but had increased the same. He relied on Haji Fazal Elahi (represented by heirs) v. Muhammad Ayyub and others, 1982 SCMR 8 in support of his above contention ' Secondly, that the conversion of the property from residential to nonresidential having been done by the tenant (petitioner) with the tacit approval of the landlady, the landlady (respondent No, 3) cannot seek eviction on the ground of personal need of the premises for residential purposes.
Reliance was placed in support of this contention on Gui Afzal Khan v. Muhammad Hanif Arif PLD 1979 Lah. 398, Muhammad Bashir v. Sultan Mahmood Khan PLD 1975 Lah. 254, Seth Girdhari Lal v.
Mst. Marzia Bano and another PLD 1963 (W. P.) Quetta 25 and Jamil Ahmad v. Mst. Sultana Begum PLD 1974 Kar.319 ; ' Thirdly, that the observation of the learned Additional District Judge that the proving of bona fide requirement was not an essential ingredient to return a finding on the issue pertaining thereto, is not warranted by law ; and ' Lastly, that the findings of the learned Additional District Judge are based on misreading rather non-consideration of the material on record and have been arrived at by ignoring the reasons which weighed with the learned Rent Controller.
12. On the contrary, the learned counsel for respondent No, 3 made the following submissions :-
(i) That the tenancy is in writing and the rent-note has been produced by the petitioner himself as Annexure (A) to this petition ; that it had also been placed on the record of the trial Court ; that all the conditions on which the premises was held by the petitioner are given in the said rent-note and that at more than 3/4 places the property has been described as a house. It was urged that in view of the above facts, the nature of the demised premises would remain as "house" and it has of necessity to be inferred that the portion had been rented out as such, especially when there is no mention at all in the rent-note that the same could be used by the petitioner for purposes other than residential ;
(ii) That in the context of the above position that there is no mention that the property could be used for purposes other than residential and contradistinctively the word "house" and "Makan" having been used a number of times qua the portion in dispute, the admitted conversion thereof is illegal and does not have any validity for the purposes of putting up a defence that the portion is not a residential premises. Reliance was placed in support of the above contention on Ch. Anwar Sipra v. Malik Muhammad Din Etc. PLD 1981 SC 491 and Muhammad Saleem and others v. Begum Musarrat Bashir-ul-Hasan and another PLD 1981 SC 578.
(iii) That by the making of admitted additions and alterations suiting to his business, the petitioner- tenant has not only impaired the utility of the property, inasmuch as, its use as residential premises has been effected but the law on the subject has also been infringed by him by using the residential premises for non-residential purposes in violation of section 11 of the Ordinance and, therefore, the eviction could be sought by respondent No, 3 on this basis alone. The learned Rent Controller, it was urged had misdirected himself in deciding Issue No, 3 against respondent No, 3 whilst the learned Additional District Judge rectified his error on the point and ecided the matter in consonance with the law laid by the superior ourts on the subject. The learned counsel relied on Mst. Akhtar Sultna v. Dr. Abdur Raoof Nagi, PLD 1978 Lah. 347 to support his above contention;
(iv) That the findings of the lower appellate C urt are not liable to be interfered with in the Constitutional jurisdiction of this Court as those are in accordance with the provisions of the law on the subject and have been returned by following judgments of the superior Courts. It was further submitted that even if the findings of the lower appellate Court had been erroneous, those would not be open to question as held in Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139: and Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246;
(v) That the character of the property as residential has not been changed even if it be assumed that for convenience the parties had put the residential property to use as non-residential property and, therefore, respondent No, 3 could seek eviction of the premises in dispute for residential purposes. Sh. Muhammad Asif v. Mst. Khurshid Begum and 2 others 1981 CLC 562; and Raja Qurban Khan v. Begum M. M. Sharif and another 1980 SCMR 590; were cited in support of this contention;
(vi) That the learned Rent Controller had erred in recording a finding on Issue No, 2 adverse to respondent No,
3. He failed to appreciate that while deciding this issue, fundamental importance had to be attached to the statement of the landlady and respondent No, 3 having made a statement that she needed the property for personal use and occupation, could not be denied the right of having the property for that purpose, especially when her testimony on this point had been corroborated by independent witnesses. Reliance was placed on Muhanimad Zaman v. Mehboob Elahi PLD 1981 Lah.
609.
13. In reply, the learned counsel for the petitioner submitted that the judgments cited by the respondent viz. PLD 1981 SC 491; and PLD 1981 SC 578; are distinguishable on the facts of the present case. It was urged that in the first of these cited judgments there was no conversion from residential to non-residential and that in the first case the house was changed to an office of a lawyer whilst in the second only a press had been installed. The second point of distinction brought out was that in these two cases there was no permission of the Rent Controller, whereas in the case in hand the Rent Controller had, vide his judgment which was reversed by the lower appellate Court, granted the sanction. Reliance was pinned on Suba v. Siraj Din (1).
14. The learned counsel for the petitioner also submitted that he also relies on PLD 1981 Lah. 609; to contend that the learned District Judge while reversing the finding of the Rent Controller on Issue No, 2 did not adhere to the principled laid in this decision.
15. To meet the contention of the learned counsel for the contesting respondent that the judgment of the lower appellate Court cannot be interfered with by this Court in the Constitutional jurisdiction because even erroneous findings by Tribunals of exclusive jurisdiction both on points of law and facts are not open to question, the learned counsel for the petitioner placed reliance on Muhammad Abdullah and another v. Muhammad Raza Zaidi and another (2), and Taj Din v.
Mehmooda Begum etc. (3).
16. It has been urged on behalf of the petitioner that by the additions and alterations which were made to suit the requirements of the petitioner,
(1) PLD 1977 Lah. 1263 (2) 1982 CLC 1201 {{FOOT NOTE}}
(3) PLD 1982 Lah. 126 {{FOOT NOTE}} ' the value of the property had not been impaired, UT the same had been increased and as such the eviction could not be ordered on that basis. I am afraid this contention has no force. The reel ant provision in this connection is section 13(2)(iii) of the W. P. Urban Rent Restriction Ordinance (VI of 1959) which reads as under: "A landlord who seeks to evict his tenant shall ape 'lee to the Controller for a direction in that behalf.
If the Cont. Oiler after giving the tenant a reasonable opportunity of showing can se against the application is satisfied that
(1) ..
(ii) . .
(iii) the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented Ian.; ' the Controller may make an order directing the the ant to put the landlord in possession... ."
17. Now, for determination of the controversy a. To whether a landlord is entitled to seek eviction of a tenant on the above ground, what has to be seen is whether the tenant has committed such act which are likely to impair materially the value or utility. It, therefore, follows that even if it be assumed that by the acts of the tenant the value of the property has not been impaired but the utility of the premises only h. s been impaired, the eviction could be ordered. The two words, viz. Aloe" and "utility" have to be read as having been used as independent alternates and it is not essential that the two conditions have to co-exist.
18. Now, the case of the landlady as set up in the ejectment application A in the above context is only to the effect that the respondent has damaged the property in suit and reduced it in its utility t a great extent and has carried out certain additions and alterations in the building without her permission and in violation of the terms of the any. To the same effect is the evidence of the landlady on this subject. That being so, it cannot be validly said that since the value has been increased by the additions the landlady could not seek eviction even if the utility has been impaired. The learned counsel for the petitioner also did no urge anything in this regard and possibly could not have said anything as t e admitted additions and alterations did convert the premises and that al o admittedly from a residential to non-residential premises which by itself shows that the utility for residential purposes has been impaired. additionally, it may be observed that it has been conceded that structural changes were made in the demised premises, such as the laying of a beam, he removal of the wall between the two rooms to make it one, the removal doors of the rooms so as to install bigger door to give it a look of a cop II metrical premises and using of toilet etc. For storage purposes. These are the precise considerations which weighed with the learned Additional District Judge to hold that the value of the property so far as its utility is concerned has been impaired. While arriving at this finding, the learned Addition I District Judge also took into consideration the evidence of the parties. I am not called upon in the present proceedings as held in PLD 1981 C 246 to appraise the evidence to uphold the findings of the learned Ad optional District Judge on the point and suffice by saying that nothing has emerged from the contentions raised on behalf of the petitioner, which may warrant interference in the impugned judgment. As a passing reference, I may observe that the findings of the Rent Controller on this issue to say the least are based on cursorily consideration of the matter and are also not in accordance with the law laid on the subject by the superior Courts.
19. The same position obtains as regards the findings on Issue. No, 2 viz. The bona fide requirement of the premises for personal use and occupation. The learned Additional District Judge while returning the finding on this issue had discussed the evidence of the parties. He clearly held that the witnesses of respondent No, 3 had corroborated the testimony of the said respondent and that the evidence of the petitioner's witness's viz. R. Ws. Was not enough to nullify the effect of the testimony of the A. Ws.
20. The learned counsel for the petitioner in order to show that the impugned judgment as regards findings on this issue is based on misreading of the law and the record, referred to the following portion of the said judgment appearing in para. 7:- "A mere assertion by the landlord that he requires the premises for his personal use and occupation is generally considered to be enough for discharging the onus ' He contended that the learned Additional District Judge by observing as above had held that the proving of bona fide requirement was not an essential ingredient for returning a finding on this issue in favour of the landlord. This contention of the learned counsel is obviously not tenable for the reason that while making the same he appears to have ignored the further observation of the learned Additional District Judge to the effect.
"Unless of course his claim stands controverted by the evidence led on behalf of the adverse party."
' The learned Additional District Judge after observing as above discussed evidence of the respondent and came to the conclusion that the same in no manner was enough to discredit the testimony of the A. Ws.
21. On merits, the only point that is now left to be dealt with is whether there was any conversion of the property from residential to nonresidential as envisaged by law and whether the landlady could take the premises which was being used for non-residential purposes so as to use it for her residence. It is well-settled that a composite building has to treated as a residential building and that even if a portion of such a building has been put to use for non-residential purposes it would not detract from the character of the same remaining residential. This has been held to be so notwithstanding the position that the landlady may have been a consenting party to the use of the premises for non-residential purpose. The above view has been taken because the conversion of a property from residential to c non-residential is violative of the law on the subject, viz. Section 11 of the Ordinance and is against public policy. Refer 1980 SCMR 590, a judgment by a Full Bench of for Judges of the Supreme Court.
22. The contrary view has been advanced by the learned counsel for the petitioner on the basis of another Supreme Court judgment reported as 1982 SCMR 8. This;, authority on closer examination is found to have not much bearing on the facts of the present case and is distinguishable. In the cited case, the main point which fell for consideration was whether a concurrent finding of fact could have been altered by the High Court under section 100 of the Code of Civil Procedure in absence of any special error or defect in the decision of the case upon merits. It had been concurrently held in that case by the Courts below that the lease of the disputed premises was obtained for a hotel and not only that as observed at page 150 of the cited case this finding was also affirmed by the High Court. Now in the case in hand, the learned Additional District Judge in para. 9 of the impugned judgment have categorically held that the demised premises were not let out for commercial purposes.
22. The learned counsel attempted to distinguish ' PLD 1981 SC 491; and PLD 1981 SC 578 from the facts of the present case. I find it difficult to agree with the learned counsel for the reason that there are a large number of points common in the a forfeited two judgments and the case in hand, for example:---
(i) Mention of the premises in the lease-deed as a house; s loft saw .aW
(ii) Absence of mention as to the use to which the Premises was` intended to be put;
(iii) The assertion of the tenant that the landlady had acquiesced in the use of the premises for, commercial purposes and the counter-assertion was of the landlady that it w given for residential purposes and that the conversion was without her consent and permission;
(iv) The location of the premises in residential area and
(v) The admitted use of the premises for residential purpose prior to its letting out.
23. In the above view of the matter, the rule laid in the cited judgments squarely applies to the facts of the present case and, in fact, the case in hand is on a stronger footing, in that, in this case the landlady in her statement had categorically stated that the conversion was made in her absence and that she had never acquiesced therein. This part of the testimony of respondent. No, 3 has also gone unquestioned and in the cross-examination nothing could be elicited from her to discredit her statement on this point.
24. The learned counsel for the petitioner had also pressed into service PLD 1977 Lah. 1263 to contend that there is permission of the Rent Controller in the case in hand under section 11 of the Ordinance for conversion. I am afraid I cannot accept this contention either. However, even if it be assumed that this question could be considered by the Rent Controller in proceedings under section 13 of the W. P. Urban Rent Restriction Ordinance, 1959, he has not applied his mind as such to this aspect of the matter. The observation "4. In the order of the learned Rent Controller appears to have been made in a different context i. e. That he took for granted the premises in dispute as non-residential which could not be obtained by the landlady for residential purpose.
25. Another fundamental point requiring consideration in the present case is whether the order of the learned Additional District Judge, Lahore is assailable in the Constitutional jurisdiction of this Court or not. The learned counsel for the petitioner made 1982 CLC 1201 and PLD 1982 Lah. 126' as the main plank for his contention that the impugned order is assailable in the aforesaid jurisdiction of this Court. I am afraid, the cited cases would not be of any help to the case-of the petitioner, especially in view of the D rule laid down in the authority cited on behalf of respondent No, 3 viz. P L D 1981 SC 246. In this judgment of the Supreme Court which was delivered in a matter arising out of proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, as the present case is, it has been held at page 248 as under:- "In or view the jurisdiction of the High Court to interfere in matters of the kind involved in the present case is a very limited one an confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the la relating thereto as laid down by the superior Courts."
26. It may be observed that the learned Additional District Judge while deciding both the material issues involved viz. Issues Nos. 2 and 3, not only kept in view all the relevant provisions of the statute such as sections 13 and 11 of the Ordinance but also followed the applicable judgments of the E superior Courts. It appears that under Issue No, 2 insofar as it relates to the character of the premises in dispute as residential, the findings are based on well-considered judgments reported as 1981 CLC 562; 1980 SCMR 590, PLD 1969 Quetta 21 and PLD 1965 Lah.
385. Therefor applying the above principle laid down in the Supreme Court judgment reported as PLD 1981 SC 246 to the case in hand it can only be held that the impugned order is well-warranted in law and calls for no interference by this Court in its Constitutional jurisdiction.
27.
The finding under the same issue as to the bona fide requirement of the premises in dispute by the landlady which otherwise also has not been shown to be vitiated on the basis of any accepted principle is also based on the enunciation of this point by the superior Courts and would on the same premises be not open to question in the constitutional jurisdiction.
28. Similarly the finding on Issue No, 3 which relates to the damage to the property whereby its utility had been impaired is also unexceptionable having been arrived at after due appraisal of the evidence on record.
29. In the light of the above discussion I have no hesitation in holding that this petition has no merit.
Additionally I am of the view that it does not merit to be entertained in the Constitutional jurisdiction of this Court. The result is that this petition is dismissed