' This second appeal has been brought to challenge the order of the learned VIIIth Additional District and Sessions Judge, Karachi, dated 11th of October, 1979 dismissing the first appeal of the appellant, which in turn was directed against the order of the Rent Controller, dated 20-5-1979 granting respondent's application for ejectment. The appeal, therefore, arises out of concurrent findings of fact arrived at by the two Courts below. The facts, as are relevant for the disposal of the appeal, shortly stated, are as under:-
2. The respondent owns a Bungalow No. 38 situated on Plot No.G.M. 2/236 in Amil Colony No.1, Karachi. The appellant has been a tenant in the said building in respect of two rooms each on the ground floor of the main bungalow and its annexe on monthly rent of Rs.150. On 29th July, 1978, the respondent moved Rent Controller under section 13 (3) (a) (i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) seeking ejectment of the appellant on the ground that the premises were required by her bona fide for her personal use for the purpose of establishment of a consulting room-cum-clinic and nursing home as she was a qualified practising doctor. It was urged that the disputed premises, being situated on the ground floor, were most convenient for her medical practice and ailing patients to visit. The respondent also gave an undertaking, though not legally required in view of section 13(4) of the Ordinance, that after ejectment of the appellant she will personally utilize the premises and will not let out the same to any body. The respondent had earlier served the appellant with a notice to vacate on 25th May, 1978 which was replied by him denying the respondent's plea of bona fide requirement of the premises. It was alleged that the respondent had been demanding enhanceed rent and thus the application was male fide. It was further averred that one portion on the first floor of the building, which was occupied by one Mst. Fatima Qureshi, was vacated by her about four months back and was let out by the respondent to another tenant on enhanced rent which went to show that the premises mere not required by the respondent bona fide.
3. The appellant in his written statement repeated the aforesaid allegations and also added that the premises in occupation of the parties were used for residential purpose and the same could not be used for running of a nursing home-cum-clinic. It was added that anyhow the four rooms of the first floor of the main bungalow, which were already in possession of the appellant, were sufficient for the purpose of clinic and nursing home as desired by the appellant. It may be mentioned here that in fact the portion in possession of the respondent on the first floor of the building comprises three rooms and not four rooms, as alleged in the written statement, and this fact was admitted by the appellant in his deposition before the Rent Controller.
4. On the basis of the pleadings of the parties, as aforesaid, following two issues were framed by the Rent Controller:-
(1) Whether applicant bona fide requires the premises in question in good faith for personal use for clinic purposes?
(2) What should the order be?
5. On 9th January, 1979 the respondent also made an application under section 11 of the Ordinance seeking permission to convert residential premises for non-residential or any other use for the purpose of use as clinic-cum-nursing home and consulting room. No counter-affidavit was filed by the appellant against the said application or any order was passed by the Rent Controller thereon.
The appellant and the respondent examined themselves in support of their respective cases and closed the evidence. The learned Rent Controller upon necessary appraisal of the evidence allowed the respondent's application for ejectment and directed the appellant to hand over vacant possession of the disputed premises within two months of his order, which was passed on 29th of May, 1979. The appellant challenged said order in appeal which was dismissed as per impugned order and hence this second appeal.
6. Mr.A.M.Khoja, learned counsel for the appellant, contended that the respondent had failed to establish her case of bona fide requirement of the premises for her personal use and occupation.
This contention was sought to be supported on two grounds namely, that the respondent had been trying to secure enhanced rent and had failed to utilise the portion which had earlier been vacated by another tenant and was allegedly rented out on higher rent. On legal plane it was urged that the premises in question, being residential, could not be used for non-residential purpose nor any prior permission in this behalf had been sought.
The appeal was admitted to regular hearing, inter alia, to examine the contention as to whether the premises in question, which are residential, could be got vacated and given to the respondent for commercial purpose of running a clinic-cum-nursing home. It, therefore, seems necessary that this contention, which is purely legal, may be disposed of first before going any further into factual merits of the case. According to section 2(d) of the Ordinance non-residential building means a building being used solely for the purpose of business or trade, while according to clause (a) of section 2-residential building" means any building which is not a non-residential building. Thus in order to attract the definition of a non-residential building it must be shown that the building was used solely for the purpose of business or trade. Admittedly the respondent's bungalow is a residential building, not having been solely put to use for the purpose of business on trade. In Suba v. Siraj Din PLD 1977 Lah. 1263 it was held by the Lahore High Court that a building which is of composite character and is being used partly for other purpose will still remain a residential building. The character of the building was not altered even if a part of the building was put to non- residential use and even if any question of conversion was involved, the tenant cannot have a grievance on that account since section 11 of the Ordinance authorises a Rent Controller to allow such conversion by an order in writing. It was further held that the finding and the order of the Rent Controller having been maintained by the first appellate Court would amount to grant of permission as required by the section. This case is on all fours and adequately meets the objection raised on behalf of the appellant. In Muhammad Ibrahim v. Mst. Surraya Sultana PLD 1966 Lah. 406, in reply to somewhat similar objection raised on behalf of the appellant in that case, it was held that a composite building which though mostly, if not exclusively used for the purpose of business or trade, cannot be called a non-residential building and it still retaining the character of a residential building as defined in section 2(g) of the Ordinance. Malik Muhammad Saleem v.
Muhammad Sadaq and another PLD 1977 Lah. 704, it was held that even where a tenant got a house on lease for residential purpose but later put the same to commercial use without the permission of the Rent Controller, such house would continue to be treated as a residential building. In any case the respondent had, out of abundant caution, made an application under section 11 of the Ordinance during the course of the proceedings before the Rent Controller and respondent's application for ejectment having been granted by the two Courts below, permission to use the premises for non-residential purpose is deemed to have been granted. This view is supported by the Judgment in the case of Suba v. Siraj Din PLD 1977 Lah. 1263 which has been referred to earlier. As mentioned earlier, the appellant did not contest the respondent's application under section 11 of the Ordinance inasmuch as neither any counter-affidavit to the same was filed nor any issue was asked to be framed in this behalf. Besides, on factual plane also the objection raised on behalf of the appellant does not hold water. The respondent had deposed before the Rent Controller that there were many nursing houses run in the residential premises in the vicinity and he had produced relevant pages from the telephone directory as Exh.1/5 to show the same.
This evidence was not controverted on behalf of the appellant.
'As regards the question of bona fide requirement of the premises by the respondent is concerned, it is not possible to differ from the concurrent findings of fact in this behalf arrived at by the two Courts below. The landlord has a right to choose the premises for his bona fide requirement and the tenant cannot raise any objection in this behalf. This, by now, is an established position of law as laid down in 1968 SCMR 108, 1973 SCMR 185, PLD 1976 Kar. 833, PLD' 1977 Lah. 1094, PLD 1977 Lah. 8, 1976 SCMR 717 and 1976 SCMR 459. The allegation that the respondent, after having taken possession of the premises from her former tenant Fatima Qureshi 'in February 1978 had let out the same to another tenant on higher rent has been proved to be incorrect. The respondent had produced counterfoils of the receipt showing that she had rented out the premises to a new tenant Wazir Ali on the same rent of Rs.65 per month. Besides, the said premises were vacated by the former tenant when the respondent was still a student and had not completed her studies. In any case nothing turns on the said allegation because the premises vacated by Fatima Qureshi were situated on the first floor of the Annexe and it cannot be disputed that the premises on the ground floor are better suited for the running of a Consulting Room-cum-Clinic and Nursing Home, as required by the respondent.
7. The upshot of the above discussion is that this appeal has no merits which is dismissed with no order as to costs. However, at the D request of the learned counsel for the respondent three months time is allowed to the appellant for vacating the premises.