1. ' MUHAMMAD AFZAL ZULLAH, J.-These two appeals (C. A. No, 31 of 1984 and C. A. No, 35 of 1984) raise common questions of law ; they are, therefore, being disposed of together. Civil Appeal No, 31 of 1984 is directed against judgment of the Lahore High Court, dated 9-7-1983 ; whereby a Constitutional petition filed by the appellant (tenant) calling in question the order of eviction from an urban property on ground of personal requirement of the respondents (landlords), was dismissed.
2. ' The question involved in this case is whether the respondents (landlords) could have sought eviction of the appellant from a portion on the ground floor of their residential house situate in a busy street of Rawalpindi city which is fact growing into a completely commercial Bazar ; on the ground ; that they require the same for their residential use, notwithstanding the fact that it was leased out to the appellant for commercial/business use -and he in fact used it for that purpose.
3. ' In Civil Appeal No, 35 of 1984, judgment, dated 28th of January, 1984, of the Lahore High Court has been brought under challenge ; whereby a Constitutional petition filed by the appellant (tenant) calling in question his eviction from a shop on the ground of requirement of respondent No, 3 (landlord). The question involved in this appeal is similar to the one noted above and mentioned in the leave granting order, dated 30th January 1984; namely, whether a building let as a shop could be ordered to be handed over to the landlord under section 13 of the Urban Rent Restriction Ordinance No, (VI of 1959), on the ground that the landlord requires the same for residential purposes. In this case a somewhat distinguished factual aspect is also involved ; namely, that originally when constructed this unit was a part of a residential house. The said house is situate in a street which now stands completely converted into a busy Commercial Bazar. And further that the said house and the shop stand transferred to the respondent landlord as a displaced person under the Rehabilitation/ Settlement Laws through a P. T. I). In this behalf a subsidiary question was argued at the bar that when such a property is transferred to any person, its character, whether residential house or shop notwithstanding any earlier positions, gets re-determined by the orders of transfer disposing it off as a shop or a house.
4. ' The first question whether a residential house or a part thereof let out or used for business purposes can be got vacated under section 13 of the Ordinance for personal use of the landlord as a residential unit, prima facie, stands resolved by a judgment of this Court reported in Raja Qurban Khan v. Begum M. M. Sharif and another (1). Besides the subsidiary contentions also have been dealt with in two other judgments of this Court ; they are Noor Muhammad Khan v. Haji Muhammad All Khan and 24 others (2) and Nek Muhammad v. Muhammad Shafi and others (3). In addition considerable case law has been cited at the bar by all the learned counsel. It is as follows :- Ch. Muhammad Anwar Sipra v. Malik Muhammad Din etc. PLD 1981 SC 491.
5. Jamil Ahmed v. Sultana Jehan Begum PLD 1974 Kar.
6. 319.
7. Dr. Bano Abedin v. Dr. Haq Nawaz Arbab PLD 1982 Kar. 818; Sabir Hasan v. Munir Malik PLD 1983 Kar.
8. 414 ; Abdul Ghaffar v. Salamat Ullah PLD 1961 (W. P.) Lah. 233; Shuja-ud-Din Qureshi v. Mst. Husan Ara Begum PLD 1964 (W. P) Lah. 292 Masood Hussain v. Muhammad Saeed Khan PLD 1965 (W. P.) Lah. 11; Muhammad Amin Beg v. Fir Muhammad Khan PLD 1965 (W. P.) Lab. 385 ; Muhammad Ibrahim v. Mst. Surraya Sultana PLD 1966 (W. P.) Lah. 406 ; Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd., Karachi PLD 1970 Lah. 455 ; Manzur Ahmad v. Muhammad Haig PLD 1970 Lab. 391 Muhammad Bashir v. Sultan Mahmood Khan PLD 1975 Lah. 254 ; Muhammad Saleem v. Muhammad Sadaq PLD 1977 Lah. 794 ; Suba v. Siraj Din PLD 1977 Lah. 1263 ; Lady Dr. S. B. Zaman v. Khalid Farooq PLD 1978 Lah. 803 ;
(1) 1980 SCMR 590 (2) PLD 1973 SC 218
(3) 1983 SC M Ft 180 Gul Afzal Khan v. Muhammad Hdnif Arif P T, D 1979 Lah. 398 ; Ghulam Farid v. Farooq Nazir PLD 1979 Lah. 673 Ahmad Aziz v. Muhammad Siddique PLD 1982 Lah. 37 ; Khalil-ur-Rehman v. Additional District Judge, Lahore PLD 1983 Lab. 331 Rehmatullah v. Nazir Ahmad PLD 1983 Lah. 401 Amjad All Shah v. Iqbal Ahmad Farooqi PLD 1983 Lah. 674 ; This and the next case are under appeal now. Rana Khurshid Ahmad v. Additional District Judge, Rawalpindi PLD 1984 Lah. 169 ; Girdhari Lal v. Mst. Marzia Bano PLD 1963 (W. P.) Quetta 25 ; Kodumal-Kherajmal v. Dema Mal PLD 1969 Quetta 21 ; Aziz Begum v. Guarantee Life and Employment Insurance PLD 1975 Lah. 594 ; Dr. Bashir Ahmad Butt v. Muhammad SharifP L D 1979 Lah. 751 ; Nasiruddin Khan v. Abdul Majid NLR 1979 Civil Lah. 551 ; Agricultural Development Bank v. Sh. Muhammad Ayub 1984 CLC 1696; Muhammad Asif v. Mst. Khurshid Begum 1981 CLC 562 ; Nek Muhammad v. Muhammad Shafi 1983 SCMR 180 ; Pramatha Nath Chowdhury v. Kamir Mondal PLD 1965 SC 434 ; Noor Muhammad Khan v. Muhammad Ali Khan PLD 1973 SC 218 ; Rehman Cotton Factory v.
9. Nichimen Co. Ltd. PLD 1976 SC 781 ; Abdul Bari v. Khadim Hussain PLD 1978 SC 78 Mrs. Gool v. Mrs. Nasima A. Rehman PLD 1979 SC 843 ; Muhammad Saleem v. Begum Musarrat Bashirul Hassan PLD 1981 SC 578 ; and ' Mr. Habibul Wahab Al-Khairi, learned counsel for the appellant in Civil Appeal No, 31 of 1984, has contended that the judgment of this Court in Raja Qurban Khan's case (1) dealt with a situation only where a part of a residential house having been let out for residential purposes is converted by the tenant to a non-residential use. It was in that connection that the judgment therein was rendered that the landlord could seek eviction of such a tenant notwithstanding the changed commercial use, for his requirement for residential purpose. And it does not lay down any general law that a landlord who lets out a part of his residential house as a commercial unit can also seek eviction on ground of his personal requirement of the same unit for residential use. In the alternative he argued that if the second proposition is also held to have been laid down in the case of Raja Qurban Khan, then the said judgment needs clarification so as to exclude the second category of cases from its scope. In order to justify such a submission he argued that extended to its logical ends, an owner of property of a residential unit would not be able to use the same or part thereof for commercial purposes, as he would become liable to punishment under section 19, read with section 11 of the Ordinance. In that connection, he referred to the definition of word "building" as also the
(1) 1980 S CM R 590 expression "any person" used in section 11 ; and urged, that. Unless and until a building is let out to a tenant it would not fall within the definition of a "building", therefore the expression "any person" in section 11 applies with reference to the "building" mentioned therein to either a tenant or a landlord.
10. And because before renting out the portion in dispute to the appellant the respondent-landlord had himself taken a decision to convert it from residential to commercial use, therefore, this conversion not being actionable even vis-a-vis the owner (would be landlord at that point of time) the tenant-appellant took it as a truly non-residential property on rent as it already stood converted as such. And that being so, the landlord could not evict the appellant on the basis of his requirement for residential use though he could do so for non-residential use, which was not the position in his case. He cited case law to support his contention that the definition of "building", in the Ordinance will have to be co-related with the use of the word "building" in section 11. He also cited case-law to show that there is no bar to a landlord converting a residential property into a non-residential property if he seeks eviction on ground of re-construction. Orte case being Abdul Bari v. Khadim Hussain (1).
11. ' Mr. Khalilur Rahman, learned counsel for the appellant in Civil Appeal No, 35 of 1984 raised similar arguments as noted above. In addition, he, in the peculiar circumstances of the other case, argued that the shop in dispute having been transferred as such to the respondent-landlord under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the character of this unit, even if it was residential prior to its acquisition under the said law or any earlier similar law, suffered a change through statutory action and the shop unit became non-residential ; notwithstanding it being originally constructed as a part of a residential house which is still being used for residence by the landlord and remains attached to the shop in dispute. He also argued that even if it was a composite property as visualised in the impugned judgment of the High Court involving residential as also commercial units, the division of the building into residential and non-residential created separate character for both the properties after the division ; therefore, the shop if it was let out for commercial use, will continue to be governed under the Rent Restriction Ordinance as nonresidential and could not be got vacated by the landlord for his use as a baithak attached to his house for residential purposes. He, to be fair to the other party, cited case-law which has already been noted and which he though supported him as also that which would go against the proposition. Two cases cited which need further comment in this behalf are : Noor Muhammad Khan. v. Haji Muhammad Ali Khan and 24 others (2) and Nek Muhammad v. Muhammad Shaft and others (3).
12. ' Both the learned counsel for the respondents in these appeals submitted replies to the afore noted arguments.
13. ' In Civil Appeal No, 31/1984, it was contended by Mr. 13ashir Ahmad Ansari that the wide argument advanced on behalf of the appellant need not be examined because the case before this Court is not regarding punishment of an owner or landlord or for that 'matter a tenant on conviction under section 19 of the Ordinance. As argued, it was an admitted position from both the sides that both the landlord and the tenant had agreed to the renting out of the portion in dispute as a commercial unit although it formed part of a residential house. The
(1) PLD 1978 SC 78 (2) PLD.1973 SC 218
(3) 1983 SCMR 180 definition of "building" in section 11, therefore, would be attracted ; as, the "building", for purpose of the present dispute, had been "let out" and the expression "any person" used in section 11 accordingly be construed as implying the landlord and/or tenant whether or not it also applies to an "owner" who has not let out his property and is not a landlord, the question does not arise in the present case. That being so, he contended, the reasoning in the case of Raja Qurban Khan fully applied to this case. In that behalf, he further stated that the facts admitted in the present case are not same as in the cited case. That was a conversion by the tenant without written consent of the landlord but with his implied consent and acquiescence while in the present case even the initial letting out was for a converted use (from residential to commercial). He, however, pointed out that for legal purposes there is no difference between the two situations ; because, in one the landlord lets out a unit for residential purposes but subsequently acquiescence or impliedly agrees to its use as a commercial unit, which could in law ordinarily mean mutual change of terms and conditions of tenancy. And in the other case such change is made in the written agreement between the parties. Thus, in one there is an unwritten agreement for conversion, in the other there is written. The bar, however, it is further contended, would apply to both because of the policy of law namely, the prohibition against non-confirming use of the property as also the specific prohibition contained in section 11, read with 19 of the Ordinance. The Courts by interpreting section 13 could not go against the mandate of the law itself which clearly bars the conversion of residential properties to non-residential. He cited several examples of Town Planning and Improvement Schemes under different municipal laws including the Punjab Local Government Ordinance (No, VI of 1979) ; Capital Development Authority Ordinance (No, XXIII of 1960) and the Schemes made under the Town Improvement Act; 1922 (Punjab' Act IV of 1922), Thus, he argued, the decision in the case of Raja Qurban Khan on the general question, regardless of the facts involved therein, would amount to the law declared by this Court and has accordingly been correctly followed by the High Court in the impugned judgment.
14. ' Mr. Riaz Ahmad Pirzada, learned counsel for the respondents in the other appeal while supporting the immediately foregoing arguments has contended that the character of an evacuee property as it was in 1947 remained the same on its acquisition by the Custodian of Evacuee Property. It remained the same under the Displabed Persons (Compensation and Rehabilitation) Act. And the Transfer of Composite Properties by dividing them into residential and commercial unit separately would nevertheless not change the original character of the Evacuee Properties. In the case before this Court however he contended that the question would not arise because the orders of transfer passed in favour of the 'respondent under the settlement law did not divide the property as, a composite unit into a house and a shop nor were they separately transferred. It was on C. H. Form submitted by the respondent-landlord that both the house as also the shop were transferred.
15. Further that the price recovered from the respondent was also on the basis of the transfer of the entire property being a residential unit. That being so, the general question raised from the appellant side regarding character of evacuee properties, will not arise in the present case.
16. ' The judgment in the case of Raja Qurban Khan was no doubt, rendered in a case where a residential property was rented out as a residential property but the tenant had converted it into a non-residential unit without written consent of the landlord. But it was assumed, as one of the alternatives, that the landlord had acquiesced in the conversion made by the tenant. It was in that connection that the following observation was made : "The learned counsel for the petitioner nevertheless urged that since the petitioner had been using the suit house, as a 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."
17. ' Proceeding further, after mentioning one reason the Court dealt with the question of public policy and held as follows :- "It seems to us that by enacting section 11 of the Ordinance in the form in which it appears, the Legislature had in view a public policy, based on considerations of securing the peace and welfare of the citizens. It is hardly necessary to labour on the point to show that by the conversion of a residential building into a non-residential building, i,e, to say for the purpose of trade or commerce, the problem of the acute shortage of houses in this country would be not only further compounded but the same inevitably would lead to disturbing the peace of the citizens residing in residential localities. The fact that this is what the Legislature had really intended to achieve is proved by the absence of any corresponding provision in the Rent Ordinance prohibiting the conversion of a non- residential building into a residential building, as also that any person found to have contravened the provisions of section 11 (ibid) is liable to be tried under section 19 of the Ordinance and in the event of being found guilty he can be sentenced to a fine which may extend to one thousand rupees.
18. We, are, therefore, in agreement with the concurrent view taken by the two Courts below, as well as the High Court, that in the absence of any permission having been obtained from the Controller under section 11 of the Ordinance in this case, the suit house would continue to retain its character as a house notwithstanding the fact that it was actually being used as a hotel."
19. ' Regarding the question as to who puts the house to a non-residential use and whether in case it is done by the landlord himself in the agreement with the tenant, will make any difference was also dealt with, considered and decided as follows : "After all if the pre-emptory mandate of section 11 of the Ordinance is found to have been violated by a landlord or tenant, with the result that a residential building is put to commercial use, how can the Controller be expected to take notice of the said change except for the purpose of section 19 of the Ordinance to proceed against a person for having contravened the provision of section 11 thereof."
20. Accordingly, it was finally ruled that notwithstanding the change in the use of a residential unit to a non-residential unit, with or without the consent of the landlord, it would not amount to the change of character of the building for purpose of eviction under section 13 as from a residential building and the requirement of the landlord (if it is on that basis) would also have to be for residential use.
21. ' Recently this Court again followed the rule laid down in the afore-noticed case of Raja court an notwithstanding the finding that the landlord was also responsible for converted use of a residential unit by the tenant. It is in Civil Appeal No, 14 of 1984 Muhammad Ramzan v. Abdul Hanan decided on 6-4-1985 at Quetta.
22. ' The argument of the learned counsel for the appellant that the above interpretation taken to its logical ends might come in conflict with the provisions of some of the other laws including those relating to contracts and property has no force. The statutory command in the special law under discussion as interpreted in the abovementioned cases by this Court would cover both the present cases. Further, the argument so laboriously advanced : regarding the rights of an 'owner' who has not yet become a `landlord' before the agreement to let out vis-a-via section 19 read with section l I has rightly been replied from the opposite side' in that, these cases do not relate to the criminal offence under section 19 ; but relate to agreement between parties constituting a tenancy wherein the "landlord" and "tenant" are involved.
23. It may be remarked that there is some force in the argument of the learned counsel for the respondent that the Rent Restriction Law never intended that once a landlord commits a mistake of renting out a part of his house for non-residential the for earning some additional income at his own inconvenience, he can never seek its restoration to him by evicting the tenant even if he on account of changed circumstances genuinely requires it for his use as part of residence. In other words, it would be deemed to have become a non-residential building for all times to come and in order to retrieve it he would have to tell a lie that he needs it for non-residential use. Indeed this was not the intention of the relevant law when enacted.
24. ' One case, on face only, appears to be laying down a slightly different rule, though in reality it is the same as in the case of Raja Qurban. It is that of Nek Muhammad v. Muhammad Shafi and others (I), A building was rented out to the tenant as a shop. He subsequently started his residence also in the first floor which was described as chowbara. The contention raised by the tenant that the demised premises were a residential house and not a shop was repelled on the finding that when rented out the character of the property was of a shop and not a house. And further that the fact that the tenant used it also for residential purposes would not change the character of the building.
25. Hence, the landlord could seek eviction of the tenant for his personal use of the property in dispute for commercial purposes. This case is also to an extent illustrative of the character of composite building ; but as it happened therein the question as to whether the building had residential or commercial character at the relevant time, would depend upon the circumstances of each case.
26. The next question requiring examination is undoubtedly vast and complicated as to whether the transfer of properties, particularly composite properties, under the settlement law, would make any difference, in so far E as the interpretation of the law of rent restriction as discussed above is concerned.
(1) 1983 SCMR. 180 In the case before us (C. A. 35/84) this question does not arise as a final determining factor because on facts it is clear that the shop in dispute was transferred to the respondent on his C. H.
27. Form submitted for house though in the P. T. I). Issued to him both the residential house and shop are mentioned as one property transferred to him. Therefore, the character of the property notwithstanding the fact that it falls in a commercial area remained that of a residential house though a part of it was being used as a shop.
28. On the basis of the law laid down in the case of Raja Qurban Khan as discussed above, the landlord would be justified in seeking eviction of the tenant on the ground that he bona fide required the unit in- question for residential use as a baithak of his main house which admittedly has the character of a residential property.
29. ' The larger question raised from the appellant side might need a fuller examination when the facts of a case would justify the same.
30. ' In passing however, a case decided by this Court needs to be noticed in this behalf. It is that of Noor Muhammad Khan v. Haji Muhammad All Khan and 24 others (1) already mentioned in another context. The property in that case consisted of land and shops. They were leased out by a Muslim owner to a non-Muslim in 1945. Lessee (for 20 years) was permitted to construct a cinema house on the land. The non-Muslim evacuee was a shareholder in a Company. The other non-evacuee Muslim shareholder after Partition succeeded in acquiring the evacuee interest from the Custodian and thus came in possession of the entire property which was then non-residential building. The original owners filed a suit for ejectment of the lease on various grounds; which were resisted on the ground, that the property being urban and it being a building and/or rented land, was subject to exclusive jurisdiction of the Rent Controller. This Court affirmed the decision of the High Court wherein the objections had been upheld and the landlord had been advised to seek remedy under the Rent Restriction Law. In this background it was clearly held that the case could be examined in either of the two alternative aspects : one, that the leased property was a building-the land being a part of the "building" as defined in section 2 of the Rent Restriction Ordinance. In alternative the land could also be treated as property separately let out for purpose of business or trade, as a cinema was to be constructed on it. Accordingly, it was held that the landlord (owner) could seek eviction in the forum of the Rent Controller on the basis that the property was a "non-residential building consisting of a shop and land attached thereto or a non-residential building" namely, shops and "rented land", namely, the land on which the cinema had been constructed. With regard to the plea that in case the land was sought to be vacated the Rent Controller might not have the jurisdiction to deal with the cinema constructed on it by the tenant with the permission of the landlord under the grant in the lease agreement itself, the Court ruled as follows :- "The contention of the learned counsel for the appellant that since the Rent Controller would have no jurisdiction in respect of the relief for mesne profits and demolition of superstructure, the matter is triable by the civil Court. The contention of the learned counsel is not well-founded. So far as the question of mesne profits is
(I) PLD 1973 SC 218 concerned, it is open to the appellant to file a suit for that purpose in the civil Court. As regards the demolition of superstructure, the Rent Controller has jurisdiction to direct the respondents to demolish the superstructure and vacate the site. In section 13 of the Urban Rent Restriction Ordinance, the word used is 'eviction' and the eviction would include the removal of the superstructure also."
31. ' Two propositions relevant for the present discussion might emerge from the case of Noor Muhammad Khan was that an evacuee property (rented land) retained the character as it had before Partition, notwithstanding the fact that it had on account of the permission granted in the lease agreement, subsequently assumed the character of a "non-residential building" in the form of a cinema house. And that is why the landlord was held entitled to seek eviction of the lessee on the basis that the character of the property remained as that of "rented land". And further that the cinema built upon it, when the same is ordered to be vacated as rented, land, could be ordered by the Rent Controller to be demolished and removed. As to whether this assumption under the Rent Law is correct and whether it will cover other cases disposed of under the Evacuee/ Displaced Persons Laws, would have to be examined in the context of the cases concerned.
32. The wider question about character of evacuee buildings, till its final determination in a proper case by this Court, might take time. It will be advisable if a legislative intervention in the Rent Law is examined. If that is done, it might be appropriate to pay attention to the mass conversions of parts of residential buildings into shops in what now de facto exists as full-fledged bazars. Section 11, e.g. May be amended vis-a-vis the power of the Rent Controller regarding such units/parts. And this amendment may be reflected in sections 2 and 13.
33. Before closing this judgment it needs to be noticed that the definition of the "building" in the Rent Restriction Ordinance itself visualises whole of the 'building' or a part of the 'building' which is let for any purpose; notwithstanding the fact, "whether it is being actually used for that purpose or not".
34. The word "building" as used in the definition for the second and third time in succession refers essentially to the initial character of the building though the phrase "let for any purpose" after the third use of word "building" would convey possibility of renting it out for a. Purpose which is against the character of the building. To apply this analysis of the definition of the word "building" to the present case, it would imply that although the building may be residential, the same or part thereof may be let for non-residential purpose. When it is done the two questions: whether the persons involved in this conversion (landlord and/or tenant) without the permission of the Controller, are liable to punishment or not; and the other question, whether the said conversion will permanently change the character of the building for purpose of eviction under section 13 on ground of personal requirement, are totally two different subjects for processing the consequences, in two separate channels. In so far as the eviction under section 13 is concerned the character of the building remaining the same, notwithstanding the fact that it was put to a different use by the tenant with or without the consent of the landlord, will not bar the landlord regaining the possession of the building for the requirement of his own use in accordance with the original character of the building.
35. These remarks have been made in the context of the two cases before the Court and are not intended as of general rules in so far as three other relevant definitions are concerned; namely, 'non-residential building'; `rented and' and 'residential building' as the character of the two buildings involved in the present discussion, admittedly was originally residential. It also needs to be remarked that for the purpose of the Rent Restriction Law this character would change when permission mentioned in section 11 of the Ordinance is granted by the Controller for converting a residential. Building into a non-residential building.
36. ' With these remarks both these appeals are dismissed. There shall, however, be no order as to costs.