1. ' This is first appeal under section 21 of the Sind Rented Premises Ordinance, 1979 from the order of learned VIth Rent Controller Karachi, dated 20th October, 1980 whereby he had allowed the ejectment application filed by the respondent against the appellant and directed the appellant to vacate the premises in question within 30 days.
2. ' The rented premises is a house bearing No, 1-J-68/4 situated at Muslim League Quarters/Nazimabad, Karachi. Formerly it belonged to one Sarwari Begum from whom it was purchased by the respondent. The appellants were already occupying this house as tenants of the former owner and continued to be tenant of the respondent.
3. ' The case of the respondent as set up in her ejectment application was that appellants are defaulters in paying rent, that they made alteration in the building and impaired the utility of the same, that they have converted the premises wrongfully to commercial purposes without the consent of the respondent and that the respondent required the premises for her bona fide use. It was alleged by the respondent that she had been living in the house of her sister Thaira Sohail as licensee and that his sister has revoked licence and asked her to leave her house.
4. ' The appellants did not specifically denys the relationship of the landlord and tenant. They have pleaded that the premises were reined out by the former owner for commercial purpose and that they have been depositing rent regularly in the Court of Rent Controller. They have also denied that the respondent requires the house for her bona fide use.
5. ' So far as the question of default is concerned it was not pressed by the appellant before the Rent Controller. The appellants have admitted that they have made an additions and alterations in the premises, but they have denied these alterations etc. Have impaired the value or ultility of the premises. According to them these alterations have added to the value of the building. The learned Rent Controller had simply referred to alterations and additions admitted by the same must have materially impaired the value of the building. The evidence on this point is only of Waqar Ahmed (Exh. 7) husband of the appellant who had simply stated that some alteration etc. Have been made by the appellant A in the building, but he does not state that these alterations etc. Have in any way reduced the value of the building. The finding of the learned Rent Controller cannot, therefore, upheld as it is based on no evidences on this issue.
6. ' The main contention raised by Mr. Habib-ur-Rehman, learned counsel for the appellants is that the premises have been rented out for commercial purpose and as such the respondent is not entitled to obtain possession of the same for residential purpose. The question that now arises for determination is whether the premises was let out for residential purpose as contended by the respondent or for the commercial purpose as contended by the appellant. So far as the location of the premises is concerned it is admittedly situated in residential area. In all the documents relating to this building, the premises has been described as a 'house'. The main document relied upon in this connection is sale deed whereby the respondent had purchased this building from Sarwari Begum. This deed has been produced by the respondent as Exh. 5-B which describes the premises as a 'house'. Even the appellant No, 1 Naimuddin who is proprietor of appellant No, 2 has admitted in his affidavit that the premises in question were rented out to him for business as well as for residential purpose. This admission of appellant No, 1 is quite contrary to the plea in the written statement that they had taken the premises on rent purely for commercial purpose. Now definition of a "non-residential building" according to section 2 (d) of West Pakistan Urban Rent Restriction Ordinance, 1959 is a building used solely for the purpose of business or trade. The appellants have admitted that the premises are not being used solely for trade or business. According to the admission of appellant No, 1 in his affidavit the premises are partly used for residential purpose and partly for business. The premises will, therefore, not fall within the definition of non-residential building.
7. ' In support of the above view reliance has been placed on Muhammad Amir Bux v. Pir Muhammad Khan (1) in which it has been held that a house let for composite purpose viz. Partly for business and partly for residence shall not be deemed to be not residential building and that landlord of such building shall be entitled under section 13 (3) (a) to have the tenant evicted from the entire building and get its possession for his own personal use.
(1) PLD 1965 Lah. 385 ' Learned counsel for the respondent has in this connection also relied on the case of Raja Qurban Khan v. Begum M. M. Sharif and another (1) in this case Supreme Court has held that a house originally constructed for residential purpose cannot be converted for non-residential purpose. It has further been held that a residential building cannot be converted into non-residential without the permission of the Rent Controller according to section 11 of the said Ordinance under which the ejectment case was filed. The relevant observations of the Supreme Court made in the above case may be reproduced with advantage which are as under :- "Quite apart from this position by the examination of the original rent deed which was placed before us by respondent Mian Muhammad Sharif, it transpired that the suit house had been let out to the petitioner as a house and not to be used for commercial purposes. The learned counsel for the petitioner did not dispute this position. But nevertheless urged that since the petitioner had been using the suit house., as an hotel, with the tacit approval of the respondents, the same must be held to have acquired the character of a non-residential building, and so it could not be got vacated for the residence of the respondents. There is no force in this contention for more than one reason. Assuming for the sake of argument that the respondents had acquiesced in the use of the suit house by the petitioner as an hotel, even then it would be insufficient to sustain the said contention urged on his behalf, as under section 13 (2) (ii) (b) the petitioner, even if there existed no legal bar in his way, could not have put the suit house to commercial purposes without the written consent of the respondents, which however, is lacking in this case."
8. This being a legal position the premises in question must be held to be a residential building and as such the respondent shall be entitled to apply to the Rent Controller for eviction of the appellants and for possession of the building for her bona fide requirement.
9. The next question is whether the respondent has proved her bona fide requirement for the premises in question. Her husband Vaqar Ahmed had deposed in evidence that he and the appellant are living in the house of respondent's sister Thaira Sohail as their licensee and that the latter has asked them to leave her house. This fact is supported by the evidence of Mst. Tahira Sohail who has been examined as witness of the respondent. She has stated that she has given two rooms of her house to the respondent and that now she is feeling inconvenient, therefore, she has asked the respondent to leave the house. This evidence stands unrebutted on the record. It has not been alleged by the appellants that the respondent has got any other house. She is, therefore, entitled to get possession of her house for her own requirement. The learned Rent Controller had, therefore, rightly decided this issue in favour of the respondent.
10. For the above reasons the appeal is dismissed with costs. The appellants are directed to vacate the premises within three months.
(I) 1980 C M R 590