1. ' These two First Rent Appeals are filed by appellant Sajjad Ali Khan, who is landlord, against dismissal of his applications for ejectment filed under section 13(2) of Sind Urban Rent Restriction Ordinance, 1959 against respondents/tenants namely Pervez Mirza and Fahimuddin. Premises in question are two shops situated side by side on the plot of land belonging to the landlord. Since facts and questions of law are same with the exception of tenants only and the evidence involved is also same, I propose to dispose of both the appeals by this single judgment.
2. ' Briefly stated the relevant facts are that the landlord filed two ejectment applications in the Court of IInd Rent Controller at Karachi on 25-11-1979. They were registered as Rent Case No, 4685/1979 against tenant Pervaz Mirza and Rent Case No, 4686/1979 against tenant Fahimuddin. Ejectment of tenants from both the shops was sought on the common ground that the landlord wanted the same for demolition and fresh construction of residential accommodation for his own use and use of his family members. Landlord also produced approved plan of proposed construction from K. D.
3. A. First a joint written statement was filed by both the tenants, which is in the record of Rent Case No, 4685/1979 but subsequently in Rent Case No, 4686/1979 separate written statement was filed by Fahimuddin. In any case defence taken by both the tenants is same denying that the landlord required premises bona fidely for his personal use and that of his family members for residential purposes. Two issues were framed relating one to requirement of premises for personal bona fide use and the other whether premises were required for reconstruction. Landlord examined himself and his son Mahmood Ali Khan in both the eases while on the other hand tenant Pervez Mirza examined himself in his case and closed the side and in the other case tenant Fahimuddin examined himself and one other witness Akhtar Rasheed, who was previously tenant in the same premises. On both issues findings of the learned Rent Controller are negative and against the landlord hence ejectment applications were dismissed and consequently the present two rent appeals have been filed by the landlord. It may be mentioned here that during the pendency of appeals landlord died and his L. Rs, have been brought on the record.
4. ' There is absolutely no dispute about the fact that both tenements are shops and were let out as such. Landlord in his applications for ejectment has very clearly stated that Shop No, 1 was let out to Pervez in July 1967 @ Rs, 150 p.m. And shop No, 2 was let out to Fahimuddin in May, 1972 @Rs, 150 p.m. Fahimuddin stated in the written statement that before him his tenement was occupied by Captain Akhtar Rasheed who was doing business of Motor Parts and in the other Rent Case it is stated in the written statement that tenement in occupation of Pervez Mirza was being used as Washing Factory by the previous tenant. Landlord stated in his affidavit of evidence before the Rent Controller that he was allotted the plot in question in 1952 as residential plot and subsequently on 21-6-1974 lease of this plot as residential Quarter No, 1/551 was registered. He raised temporary construction covered with zinc sheets for residence in 1962-63. He was employed in K. D. A. And was posted at Gharo and Damloti, hence he had let out one room to Pervez Mirza in 1967 and another room to Fahimuddin in 1972. Both of them agreed to vacate the rooms whenever he wanted to occupy them. Landlord then stated that his family consisted of nine members and his eldest son was married and has two children and his other two sons were also grown up aged 26 and 23 years. This whole family lived at the back portion of the plot, total measurement of which is 90 sq.
5. Yards. Landlord further stated that he wanted to demolish temporary construction and wanted to raise a proper R. C. C. Construction for his residence and residence of his three sons and their families. In this context landlord had got approved plan by K. D. A. For construction and deposited necessary fees. It is clear from the affidavit of evidence of landlord that he has not used the word shops for the tenements. Mahmood Ali Khan, who is son of landlord, stated in his affidavit of evidence before the Rent Controller that he was working as Manager, National Bank of Oman at Musqat and after termination of his service had come back to Karachi with his wife and two minor children and wanted to live in the house of his father. Before the Rent-Controller in the cross- examination landlord has admitted that tenements were in fact shops which he rented out to Pervez Mirza in 1967 and Fahimuddin in 1972. He also admitted that shop of Pervez Mirza was previously with Rasheed as Laundry. Landlord denied that he took money for change of receipt in favour of Pervez Mirza. Landlord also admitted that he increased rent from Rs, 70 to Rs, 150 p.m. He further admitted that there were other shops in the locality upto post office including Razi Building and other buildings. He admitted that it is correct that Electric bills of the tenements in question were issued at commercial rate. Mahmood Ali Khan in his cross-examination stated that he was in service of Oman Bank at Musqat where he used to get salary of Rs, 9,000 p.m. Now his younger brother is working in the Bank of Oman at Musqat and would reside with his father after his marriage. This witness further admitted that if accommodation was built on the first floor, it would be sufficient for their families. Tenant Fahimuddin stated that he has been in occupation of the premises since 1972 and paid the rent @ Rs, 70 p.m. Then Rs, 80 p.m. Then Rs, 95 p.m. And now Rs, 150 p.m. As the rent was increased by the landlord from time to time. He produced receipts to show that. He further stated that he spent Rs, 30,000 on improvement, renovation, fittings and fixtures etc. With the consent of the landlord. He denied the claim of the landlord to be bona fide that premises were required for his residential purposes and stated that landlord wanted to increase the rent. He stated that to a reasonable extent he was prepared to co-operate and advance reasonable amount of money to help landlord to raise R. C. C. Roof and construction on the first floor for his family as the landlord's son Mahmood Ali Khan had already agreed that accommodation on the first floor would be sufficient for their needs. Tenant further stated that the plot in question was commercial or in any case residential-cum-commercial and was let out to him as commercial and could not be acquired by the landlord for residential purposes. Exh. A-5 is Rent Agreement in both the rent cases showing that shops were let out as such and further terms and conditions were also in respect of running them as shops. In rent case of Fahimuddin witness Akhtar Rasheed stated that in 1972 he handed over possession of vacant shop to Fahimuddin with consent of landlord and accepted Rs, 25,000 from Fahimuddin for fittings and fixtures. He paid Rs, 3,000 to the landlord for change of receipt in favour of Fahimuddin.
6. ' It appears from the other documents produced by the landlord that the plot in question was allotted to him originally as residential as is manifest from Exh. A-4 but the landlord himself rented out front portion as shops to the tenants. Subsequently he applied to the K. D. A. For construction as residential accommodation but did not disclose that the plot in question was residential-cum- commercial. In such circumstances approval of building plan is not so helpful to the landlord particularly when it is admitted fact that he himself is employee of K. D. A. Which has approved the plan. Learned Rent Controller also held that the landlord failed to produce any sanction from competent authority to show that commercial plot was converted into residential. On the other hand it appears from the evidence produced by the landlord that this fact was suppressed from Authorities that plot in question was being used partly as commercial and partly as residential.
7. ' Before me issue of reconstruction was not pressed and the main argument was that premises in question being composite unit partly residential and partly commercial can be treated as residential by the landlord who is competent to acquire the same for residential purpose and in support of the proposition reliance was placed on the case of Haji La! Bux v. Tlfistry Allandad (1). It was further argued on behalf of the landlord that such being the legal position in the light of ruling quoted above, landlord in the instant case can validly acquire rented shops for
(I) 1980 CLC 984 conversion to his residential accommodation as the landlord himself is residing in the back portion of the same plot. This contention is not correct for the reason that composite unit would be understood to be only that which is rented out and would include therein accommodation partly commercial and partly residential. If the landlord resides in part of the plot and the other part is rented out, then the, whole plot cannot be considered as composite unit. Section 2(a) of Urban Rent Restriction Ordinance, 1959 defines "building" to mean any building or part of building let for any purpose. It is quite obvious that provisions of the rent ordinance would be attracted only when the building is let out or any part of it is let out and the emphasis is very clear on the word "let".
8. Building is further clearly defined as "non-residential building", which means building used for business or trade and "residential building", which is for residential purposes. Section 11 of the said Ordinance further provides that no person shall convert a residential building into non-residential building, except with permission in writing of the Controller. Section 13 of the said Ordinance further prescribes separate procedures for acquiring eviction in respect of residential building and non- residential building. Under subsection (3) (a) (i) (a) of section 13 landlord may apply to the Controller for eviction of the tenant on the ground that requires residential building in good faith for his own occupation or for the occupation of any of his children. Similarly on the same lines eviction in respect of non-residential building can be acquired by the landlord for his own use or for the use of any of his male children. From what is stated above, intention of the legislature is clear that Controller has jurisdiction in respect of only those premises which are let out, they may be residential or non-residential. If the building let out is partly commercial and partly residential then the whole building is a composite unit. Composite unit will not travel outside the building "let" as is clearly defined in the definition of building in section 2 of the Urban Rent Restriction Ordinance, 1959. Landlord cannot extend the scope of composite unit by including in it any part of the building which is not let out.
9. ' In the instant case, it is contended on behalf of the landlord that one part of the plot is rented out as shops and in the other part of the plot landlord himself lives as such it becomes a composite unit and can be treated as residential. In support of this proposition reliance on the reported case of Haji Lal Bux v. Mistri Allandad mentioned above is misplaced. Judgment in that reported case is mine and proposition defined therein is that in the composite unit if accommodation is partly residential and partly commercial, then it is to be treated as residential but this would apply only when the whole unit is rented. The facts of that case were that landlord Haji Lal Bux purchased property bearing Survey Nos. 2456 and 2457 in Ward 'B' Larkana in the year 1962 from Settlement Department and at that time Mistri Allandad was already in occupation of those premises composed of residential house and the shops. Landlord served notice under section 3,) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 whereby Mistri Allandad had become statutory tenant. It is very clear from the facts of that reported case that whole composite unit partly residential and partly commercial had been let out. Therefore it was held that the landlord can acquire the whole composite unit as residential. Reliance in that case was further placed by me on the case of Muhammad Amin Baig v. Pir Muhammad (1). In that case it was held by Mr. Justice Muhammad Yaqoob Ali (as he then was) that if the house was let partly for residential and partly for non-residential purposes then landlord is entitled to apply for eviction of tenant from the entire building for his residential purpose. In that case also a house in Sialkot City was rented out at a rent of Rs, 70 p.m. For two years under an arrangement that ground floor would be used as business premises and upper floor would be used for residential purpose. Proposition laid down in the reported rulings mentioned above will not apply to the facts of the instant case for the reason that in the instant case accommodation let out is only commercial as such the same can be acquired only for commercial purposes and not for residential purposes. Secondly in the instant case it cannot be said that it is composite unit including both corn metrical as well as residential accommodation because only commercial accommodation is let out and residential accommodation is not let out as such is not part of composite unit to be covered by the definition of building as contemplated in section 2 of Urban Rent Restriction Ordinance, 1959. It therefore follows that legally speaking part of the building in occupation of landlord for residential purpose cannot be treated as composite unit with other part of the building which has been let out for commercial purpose and vice versa. On the other hand, if whole accommodation is let out partly as commercial and partly as residential then the same can be acquired by the landlord for residential purposes. Accommodation only let as commercial, cannot be acquired by the landlord as residential.
10. ' View stated above stands fully supported by plethora of case-law. In the case of Seth Girdharilal v.
11. Mst. Marzia Bano and others k2), it is held that non-residential building rented out can be claimed by landlord for his own business but not for his residence. Emphasis was laid on tLe fact that different requirements are contemplated under section 13(3) of W. P. U. R. R.
12. 0., 1959 for acquiring accommodation for these purposes. Residential accommodation can be acquired by the landlord for himself and for any of his children. Non-residential accommodation can be acquired by the landlord for himself or any of his male children. In Manzoor Ahmad and others v. Muhammad Haneef and others (3), it is held that the definition of "building" in section 2(a) of W. P. U. R. R. Ordinance, 1959 would show that the emphasis is on its having been "let for any purpose". If the whole building is let for any purpose to the tenant, then the whole premises would constitute a building, but if a huge, building is let in parts then each part so let is a building by itself.
13. In Muhammad Bashir v. Sultan Mahmood Khan (4) Aftab Hussain, J. (as he then was) supporting view stated above further held that the portion which remained in occupation of landlord, although part of the same building in the ordinary parlance will not be building in terms of section 2(a) of W.
14. P. U. R. R.
15. 0., 1959. It was further held that tenement let out for commercial purpose cannot be acquired by the landlord for residential purpose. The same learned Judge again in the case of Gul Afzal Khan v.
16. Muhammad Hanif Arif (5), after making reference to a large number of rulings on the subject in his elaborate judgment reiterated the same view stated above and further held that section 13
(1) PLD 1965 Lah. 385 (2) PLD 1963 Quetta 25
(3) PLD 1970 Lab. 391 (4) PLD 1975 Lab. 254
(5) PLD 1979 Lah. 398 of W. P. U. R. R.
17. 0., 1959 shall not help the landlord if he seeks on the ground of personal requirement, ejectment of non-residential building for residential purpose. In this context further reference can be made to the case of Jamil Ahmad v. Mst. Sultana Jehan Begum (1). In the case of Dr. Bano Abedin v. Dr. Hag Nawnz Arbab (2), learned Single Judge of our High Court Ajmal Mian, J. (as he then was) on this point noticed cases of Jamil Ahmad v. Sultana Jehan Begum, Muhammad Bashir v. Julian Mahmood Khan and Gul Afzal Khan v. Muhammad Hanif Arif. Later two cases have been decided by learned Single Judge of Lahore High Court Aftali Hussain, J. (as he then was) as stated above.
18. My learned brother Ajmal Mian, J. In his reported case has stated legal position on the point under discussion as canvassed in the repotted cases mentioned above and did not express any cavil with it. In this context on page 822 of the report, relevant portion from his judgment is reproduced as under :- ' 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 Polyclinic which is a non-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.
19. 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."
20. ' Then the learned Judge proceeded to decide the question whether part of building rented out by the landlady as Clinic was residential accommodation or not for the reason that in the Clinic there was arrangement for residential accommodation of patients and staff. In the circumstances stated above case of Dr. Bano Abedin has different facts and is distinguishable from the present case.
21. ' Lastly I would also refer to the case of Sabir Hussain v. Munir Malik (3) in which my learned brother Nasir Aslam Zahid, J. Has also taken similar view that shop let out by the landlord facing main road in commercial area cannot be acquired by him for residential purpose.
22. For the facts and reasons and the legal position stated above, I hold that in the instant case it is not open to the landlord to demand eviction of tenants from their shops let out in the same building in part of which he himself lives on the ground of personal requirement for residential purposes. No interference is called for. In the result impugned orders are upheld and both appeals are dismissed with no order as to costs.
(1) PLD 1974 Kar. 319 (2) PLD 1982 Kar. 818