1. This appeal is directed against order dated. 26-2-1987 directing ejectment of appellant from premises No. 2-16/2(b)(540) Fatima Jinnah Road, Quetta passed by learned Civil Judge-cum-Rent Controller, Quetta.
2. Brief facts leading to this appeal are that on 30-3-1980 respondent filed. An application for eviction of respondent No. 2 from premises bearing No. 2-16/2(b)540 Fatima Jinnah Road, Quetta comprising of one room which was leased out to appellant. Eviction, however was sought on the ground (i) respondents committed default in the payment of rent for 11 months commencing from 1-4-1979 and (ii) bona fide personal requirement for use and occupation of his children. This application was then seriously contested, by appellant No. 2. He filed written statement on 16-6- 1980 repudiating claim for eviction. Amongst other objections it was inter alia pleaded, that all the partners of Firm who are occupants of said premises have not been impleaded. During pendency of these proceedings learned trial Court on 16-6-1980 passed an order under section 13(6) of Ordinance VI of 1959 directing appellant No. 2 to deposit arrears of rent. Latter keeping in view the pleadings of parties following five issues were framed on 26-7-1980:-- (i)Whether the Application is not maintainable in view of preliminary objection A of W / S?
2. (ii)Whether the application is liable to dismissal in view of preliminary objection B of W/S?
3. (iii)Whether the Respondents have failed to pay or tender rent w.e.f. 1st April, 1979 and onwards?
4. (iv)Whether the Applicant require the premises in question bona fide for his use and occupation of his children?
5. (v)Relief?
6. It may be seen that towards 23-4-1981 respondent moved an application pointing out that appellant Muhammad Ishaq committed default in complying direction regarding deposit of rent. A reply in that behalf was submitted on 20-2-1982, explaining circumstance which lead to said default. Trial Court on considering contentions raised by the parties observed that default was wilful as such by means of order dated 31-7-1982 directed ejectment of appellant No. 2. It is pertinent to mention here that on 17-2-1982 appellants No. 1 and 3 to 5 submitted an application under Order I, Rule 10, C.P.C. Before the trial Court for being impleaded as party on the ground that they were also partners of Hafizan Coal Company (appellant No. 1). Respondent submitted reply on 13-3-1982 opposing said application. Their request for being joined party was however refused by Controller on 10-5-1982.
3. Appellants thus feeling aggrieved from order of striking defence dated 31-7-1982 preferred an appeal (F.A.0. No. 44 of 1982) before this Court which was accepted icy means of order dated 7-8- 1983 whereby aforementioned order of Controller was set aside. It was also observed that persons carrying on business as partners were liable to be hued in the name of Firm. Consequently after remand amended eviction application impleading appellants Nos. 1, 3, 4 and 5 was filed before trial Court on 2-8-1983. Amended written statement was filed by appellant on 2-9-1983 wherein by way of preliminary objection (f) it was specifically pleaded that the property in dispute is commercial unit located in a commercial area and cannot be used for the purpose of residence. In spite of specific assertions in this behalf the Court did not frame any additional issue. Respondent examined three witnesses namely (i) Laeeq Ahmad (ii) Aqeel Ahmad and (iii) Haji Abdul Qayum apart from his own statement in support of his claim. Whereas appellants produced (i) Nisar Ali and (ii) Ghulam Raza besides appellant No. 2, in rebuttal. On 22-8-1986 an application was also moved by appellants for allowing additional evidence to prove that premises in dispute was a commercial unit, which was opposed by respondent. The trial Court rejected the request for additional evidence vide order dated 22-9-1986. However, on the appraisement of evidence adduced by the parties, learned Civil Judge-cum-Controller by means of order dated 26-2-1987, granted eviction application directing appellants to hand over vacant possession of premises in dispute to respondent within four months. Being dissatisfied from aforementioned order, present appeal was filed on 26-2-1987.
7. Mr. Ayaz Zahoor, learned counsel for appellant who has very ably conducted this case vehemently urged that firstly (i) premises in dispute was a commercial unit located in a commercial area and was never used for residential purposes, therefore, eviction application for said premises under section 13(3)(a)(i) of Ordinance VI of 1959, is not competent (ii) Secondly evidence does not disclose that requirement of respondent for his children is bona fide; and (iii) thirdly son of the appellant for whose requirement premises was claimed has not been examined.
8. As regard first contention it is argued that the premises consist of a room which is independently located on the top of a Bakery belonging to appellant and has got a separate exit which was evidently let out for using as office of Hafizan Coal Company and thus constitutes a commercial unit for which ejectment cannot be sought on the ground of personal need for occupation and residence of the children. In support of his contention reliance is placed on the following cases:-- Gul Afzal Khan v. Muhammad Hanif Arif PLD 1979 Lah. 398, Jamil Ahmed v. Mst. Sultana Jehan Begum PLD 1974 Kar. 319, Sabir Hassan v. Munir Malik PLD 1983 Kar. 414, Muhammad Bashir v.
9. Sultan Mahmood Khan PLD 1975 Lah. 254 and Muhammad Hafeez and another v. Muhammad Azeem and others 1984 CLC 1083.
10. With regard to second contention it was canvassed that evidence produced by respondent /landlord relates to use of premises for residential purpose. The option for converting the use is contrary to public policy and cannot be regulated merely by discretion or whims of landlord.
11. Eviction from such premises can be sought in accordance with requirements of section 13(3)(a)(ii) of the Ordinance for which criteria regarding bona fides is quite different on account of which claim of respondents was unjustified. Reverting to third contention it was maintained that children for whose occupation, the premises was required had not been produced which therefore negates the bona fides. In support thereof reference is made to cases mentioned below:--
(i) Dilshad Muhammad v. Mst. Zubaida Begum 1981 SCMR 895 and Muhammad Ismail Khan v.
12. Ghulam Muhammad 1982 CLC 1695.
13. Whereas replying the first limb of arguments learned counsel for respondent submitted that room in dispute basically constitutes part of residential house of appellant. According to him mere different use of premises in the given set of circumstances cannot change original character of the building. It was, therefore, argued that residential room shall retain its essential character irrespective of use to which same may be put for the time being.
14. To supplement these submissions reliance has been placed on the observation of following reported judgments:-- Dr. Bano Abedin v. Dr. Haq Nawaz Arbab PLD 1982 Kar. 818, Abdul Malik v. Haji Ejaz Ahmed 1985 SCMR 1555; Syed Amjad Ali Shah v. Iqbal Ahmed Farooqui and others PLD 1985 SC 242, Province of Punjab and another v. Mst. Noor Bibi and others 1981 CLC 1082, Ch. Muhammad Anwar Sipra v. Malik Muhammad Din etc. PLD 1981 SC 491, Raja Qurban Khan v. Begum M.M. Sharif and another 1980 SCMR 590, Muhammad Ramzan v . Abdul Hanan 1985 SCMR 2082 and Khudai Nazar v. Haji Abdul Ghafoor Rishi. F.A.0. No. 19 of 1985 (Quetta), decided on 21-10-1985 as well as the order of Supreme Court in C.P.S.L.A. No. 62-Q/85 confirming the aforesaid decision of the High Court.
15. With regard to second contention it was argued that evidence on record sufficiently establishes, the bona fides for securing possession for use and occupation of the children. Therefore, mere failure to produce the son cannot be deemed detrimental.
16. However, with regard to quantum and quality of evidence, learned counsel has submitted that even statement of landlord would be sufficient for constituting bona fides provided same is confidence inspiring. In support of above contentions following judgments have been relied:-- Bashir Ahmed v. Additional District Judge Gujrat and 2 others 1985 CLC 2485, Zahoor Din v. Mirza Ayub Baig 1981 SCMR 1081, Muhammad Ashraf etc. v. Jan Muhammad 1981 SCMR 720, Dilshad Muhammad v. Mst. Zubaida Begum 1981 SCMR 895; Sufi Muhammad Yasin and Brothers, Karachi and another v. Dr. Major Ahad Khan PLD 1976 Kar. 1231.
17. On the facts contested by the parties, question arises whether room in occupation of appellant which is being used as office can be claimed by respondent for residential needs or on account of its use as office or that with the consent of respondent, same stands converted into a commercial unit for being regulated under section 13(3)(a)(ii) in the matter of personal requirement.
18. Evidently the room is located on the upper storey of Bakery belonging to appellant. Whereas admittedly house which is in occupation of appellant is adjacent to the same. At present entry of premises in dispute is obviously separate and independent besides it has been allocated separate number by the Excise Department perhaps as a commercial unit. In these circumstances it has to be seen whether respondent at all substantiated his bona fide need for occupation of A his children and whether ejectment of appellant can validly be sought from said premises for residential accommodation. Perusal of evidence on record indicates that factum of bona fide requirement of the premises for use and occupation of children has been amply proved by the respondent as rightly discussed by trial Court. Undisputedly it is prerogative of the landlord to have better accommodation for his residence or that of his children. Evidence reflects that room in question is ideally located to cater genuine need and anxiety of landlord to accommodate his children. Factually bona fides of respondent have been vaguely challenged by attorney of appellant or his witnesses.
19. So much so that R.W. Nisar Ali in his examination-in-Chief states that son of respondent namely Rafique had told him that premises in dispute was required by him for using it as a godown or Office of National Misaleh and he will shift his business there if it is vacated When learned counsel for appellant was confronted with this portion of evidence he attempted to explain that it would not render any assistance to respondent /landlord because, eviction was sought for residential purpose only. Irrespective of technical objection, the cumulative effect of evidence leads to a direct inference that premises is actually needed by respondent for bona fide requirement of his children.
20. It is strange that if respondent take a wrong or false plea with regard to requirement of premises for commercial purposes then he may have a case in his favour, but not when he wants to approach with clean hands. Nevertheless crucial point agitated in the instant case revolves around the fact whether room in occupation of appellant should be deemed as exclusively commercial unit or as residential building available to respondent within the purview of section 13(3) (a)(ii) of Ordinance VI of 1959. The decision of Honourable Supreme Courtin case Syed Amjad Ali Shah v.
21. Iqbal Ahmed Farooqui PLD---s 1985 SC 242, in this behalf is very instructive and on all forces as regard case in hand. Almost all the aspects involved in this case have been taken into consideration. It is appropriate to reproduce here some of the relevant extracts from said judgment:------- Page 251 "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 use for earning some additional income at his own convenience, 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.
22. 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 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. 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."
23. Page 253 "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.
24. 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'.
25. 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 person 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. 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 y for converting a residential'.
26. Similarly observation in an unreported case, by this Court Khudai Nazar v. Haji Abdul Ghafoor Rishi (F.A.0. No. 19185) are quite relevant."
27. "5. I have carefully examined the evidence on record and am not inclined to subscribe to the view taken of the same by Mr. Muqeem Ansari. The premises were originally residential and part of the house. The appellant has used the same initially as a son and used the same for all practical purposes as residential using the bathroom, kitchen and the court-yard. If the premises at any stage of time are allowed to be used as office that does not convert the building into non- residential and by the mere use of the tenant for his commercial purpose does not disentitle the landlord to seek the eviction for residential purpose. No doubt the view of this Court at one stage was in favour of the proposition advanced by Mr. Moqueem Ansari but the controversy has now been set at rest by the Hon'ble Supreme Court by its latest pronouncement in Muhammad Ramzan v. Abdul Hanan (Civil Appeal No. 14 of 1984 decided on 6-4-1985). The Supreme Court reiterating its view taken earlier in Qurban Khan v. Begum M.M. Sharif 1980 SCMR page 590 has ruled that the residential house by its use for a commercial purpose even with the consent of the landlord cannot change its essential character as a part of residential house into a non-residential building or premises, and in the absence of the permission of the Controller having been obtained under section 11 of the Ordinance for the conversion of the premises into non-residential building.
28. Landlord's entitlement to seek the tenant's eviction on the ground that he requires the premises for residential use and occupation for himself and his family is not barred in law. This pronouncement is binding on us. The contention of the learned counsel for the above reason is repelled. The afore quoted judgment of the High Court has been confirmed by Honourable Supreme Court in C.P.S.L.A.
29. No. 62-Q/1985 Khudai Nazar v. Haji Abdul Ghafoor Rishi, decided on 3-5-1986.
30. Thus respectfully following the dictim laid in aforementioned judgments, I have no hesitation in holding that room in question was primarily a 'non-commercial' unit, however, same was used by appellants as office being a commercial purpose. Nevertheless basic character of the building remains intact specially when for changing a non-commercial building to a commercial unit, necessarily permission C of Controller within the purview of section 11 of the Ordinance VI of 1959 is required. Therefore, taking into consideration the broad feature discussed above I am inclined to observe, that respondent could legitimately claim ejectment of appellant from premises in dispute for residential purposes after satisfactorily establishing the bona fides. However in the instant case, as discussed above, on the proved facts, learned Controller has rightly granted the application in favour of landlord.
31. Additionally, provision of section 13(4) contains salutary check against mala fide action of landlord and reasonably controls the interest p of tenant by providing adequate safeguards. In support of this aspect reference may be had to the observations in case (i) Sh. Abdul Aziz and others v . Kh.
32. Hasan Joo and others 1981 SCMR 924 (ii) (1972 SCMR 437).
33. For the foregoing reasons there are no merits in this appeal, which is accordingly directed to be dismissed. Since the premises in dispute was being used as an office and there is dearth of accommodations, therefore, I am inclined to allow six months time to the appellant to hand over vacant possession of the premises to respondent /landlord.
34. Accordingly appeal is disposed of in the above terms, with no order as to costs.