' This is a second rent appeal filed by the tenant/appellant. Briefly the facts are that Rent Case No, 1344/71 was filed by the landlord/respondent against the appellant for his eviction from the shop in question located in the house of the respondent in Nazimabad Karachi. The respondent, who is the owner of a house in Nazimabad Karachi, converted the accommodation in his house facing the main road into two shops. One of the shops was rented out to the appellant in 1965 on a monthly rent of Rs,
100. The other shop was given on rent to another tenant. Since 1965, the appellant has been carrying on business in the shop in question. In 1971 the respondent filed the aforesaid ejectment case on the ground of personal requirement for converting the shop in possession of the appellant into a garrage for parking his car for which purpose the respondent had obtained a revised building plan approved by K.M.C. Apart from the two shops, the other accommodation has been in the use and occupation of the respondent and his family as their residence, The case of the respondent was that he was working as a secretary in a private firm and maintaining a car for the purpose of his business, which car he had been parking on the road but sometime before filing of the ejectment case the police challaned him and he had been advised to park his car in a garrage. His ejectment application was allowed by order dared 31-5-1977 of the Rent Controller, Karachi ordering ejectment of the appellant. The appellant filed Rent Appeal No, 338/75 but this appeal was dismissed by the learned IV Additional District Judge, Karachi by order dated 3-12-1978.
This Second Appeal challenges the aforesaid orders of the Rent Controller and the First Appellate Authority. I have heard Mr. Rasheed A. Rizvi Advocate for the appellant and Mr. Asad Bilgirami Advocate for the respondent.
2. There is a concurrent finding of the two tribunals in favour of the respondent and against the appellant. The only point which requires consideration is whether under the rent law, the respondent can get an order of ejectment of the appellant from a shop on the ground that the respondent requires the shop, located in his house for parking his car, after converting the shop into a garrage. In my view the requirement of the respondent is to use the shop in question for residential purpose of parking the car of the respondent. The contention of the learned counsel for the respondent was that by converting a portion of his residential house into a shop, the house of the respondent did not lose its character of a residential building and the respondent was entitled in law to make an application to the Rent Controller for obtaining possession of the shop for use by the respondent/landlord for residential purpose. In support of his contention, learned counsel for the respondent relied upon the case of Suba v. Siraj Din (1), decided by a learned Single Judge of the Lahore High Court. In that case the learned Single Judge of the Lahore High Court was of the view that if there was a building of composite character that is partly used for purpose of business or trade and partly for other purposes, it still remains a residential building. Reliance was also placed by learned counsel for the respondent on a recent judgment of Mr. Justice Ajmal Mian in the case of Dr. Bano Abedin v. Dr. Haq Nawaz Arbab (2). In that case the landlady had rented out the ground floor of her house to the tenant for running a clinic. An ejectment case was filed on various grounds including the ground of personal requirement of the landlady for residential purposes. It was observed by Ajmal Mien, J. That in order to determine whether a particular premises are non-residential or residential inter alia the following facts are to be taken into consideration-
(i) Whether the building is situated in a residential area ?
(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 1959 Ordinance ?
' The learned Judge then observed as follows:- "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 fact that the ground floor {{FOOT NOTE}}
(1) PLD 1977 Lab. 1263 (2) PLD 1982 Kar. 818 {{FOOT NOTE}} was rented out for running a polyclinic will not debar the appellant from applying for ejectment on the ground of personal requirement for residential purposes. 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 of the Rent Controller for converting the purpose under section 11 of the late Ordinance, it will mean that for all time to come, be 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 use the said portion of the bungalow for other purpose than the residential purpose 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."
3. On the other hand Mr. Rasheed A. Rizvi, learned counsel for the appellant, relied upon Muhammad Bashir v. Sultan Mahmood Khan (1) decided by a learned Single Judge of the Lahore High Court. It was held there that the portion let out to the tenant will form a building by itself under section 2 (a) of the 1959 Rent Ordinance and since the portion in that case was being used exclusively for non-residential purpose, it was covered by the definition of "non-residential building" and as such could not be directed to be vacated for the use by the landlord for residential purposes. It was contended by learned counsel for the appellant that the respondent could not apply for ejectment of the appellant from the shop on the ground that the respondent required the same for residential purposes.
4. In the instant case, the respondent let out a shop to the appellant It is no doubt true that the portion let out to the appellant as also to the other tenant were parts of his house but the fact remains that the respondent carved out two shops from that portion of his building which faced the main road and let out the same to the tenants as shops. Under section 2 (a) Of the 1959 Ordinance, a, part of the building can also be a building. In my view the A shop in question became a "building" within the definition of section 2 (a). As this building has been used, since it was let out, for the purpose of business and trade only, it became a "non-residential" building under section 2
(d) of the 1959 Ordinance. It has come in evidence that the shop is situated on the main road in Nazimabad, Karachi and that the area in question has become commercial. In my view, under section 13 of the 1959 Ordinance, a landlord could not maintain an application for ejectment of a tenant from a shop located in a commercial area, which shop was rented out as a shop to the tenant, on the ground that he required the shop for residential purposes. In such cases an application could be maintained only if the landlor4 required the rented shop for non-residential purposes. PLD I 1977 Lah. 1263 does not supprot the respondent as the prosent is a case of a shop which has been let out as such and has to be treated as a non-residential building.The case reported in PLD 1982 Kar. 818 is distinguishable as the premises there were located in residential area and the ground floor had been let out for running a polyclinic. The learned Single Judge himself noted the difference between a shop and a clinic having residential accommodations for patients and the staff.
5. It is held that the ejectment application filed by the respondent was not competent. This appeal, therefore, must succeed. Second Appeal No, 500 {{FOOT NOTE}}
(1) PL D 1975 Lab. 254 {{FOOT NOTE}} of 1978 is allowed and the orders of the Rent Controller and the First Appellate Authority are set aside. There will, however, be no order as to costs.
Appeal allowed.