' S.A. NUSRAT, J.--This appeal is from the judgment of the High Court of Sind whereby the order passed by the Rent Controller granting ejectment application of the appellant in respect of the disputed premises and the judgment of the first appellate Court dismissing the respondent's appeal, were set aside on the second appeal of the respondent.
2. The appellant is landlord of a building bearing No. V-A, 1-8/A, Nazimabad, Karachi, which comprises of two shops and residential accommodation. The dispute in this case relates to one of the shops, which was rented out by the appellant to the respondent some time in 1965. The residential portion of the building has been in occupation of the appellant and his family. The appellant filed an application under sections 13(2)(vi) and 13(3)(a)(i)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959, (hereinafter referred to as the Ordinance)seeking eviction of the respondent from the disputed shop on the ground that he bona fide required the same "for converting it into a garrage for parking his car", for which purpose he had obtained a revised building plan duly sanctioned by the Karachi Municipal Corporation and had also paid requisite conversion charges to the Karachi Development Authority. The application was opposed by the respondent and on the pleadings of the parties the following issues were framed by the Rent Controller:--
(1) Does the applicant bona fide require the shop for converting it into a garrage for his own use?
(2) If the answer is in affirmative, what the relief should be?
3. The appellant examined himself and produced revised building plan alongwith the letter of sanction issued by the KMC for carrying out alteration in the building as also a receipt of payment of conversion charges to the KDA. The appellant stated that he wanted to construct a garrage for the safety of his car and due to the objection of the traffic police for parking it on the roadside. The rent application was allowed by the Rent Controller on 31-5-1976. The respondent's first appeal from the said order was dismissed by the Additional District Judge, Karachi, on 3-12-1978. However, on second appeal of the respondent, the order of eviction was set aside by the learned High Court taking the view that the ejectment application was not competent under section 13 of the Ordinance, on the ground that a building let out for use as a non-residential building could not be got vacated by the landlord for residential purpose.
4. There is no dispute that the portion of the building let out to the respondent had earlier formed part of the residential house of the appellant. The learned High Court found that there was concurrent finding of fact recorded in favour of the appellant on the question of bona fide requirement of the premises. However, the question requiring examination was whether under the rent law, the appellant was entitled to get an order of ejectment in respect of the shop on the ground of personal bona fide need by converting the shop into a garrage, which was a residential purpose. The learned High Court found that although the portion let out to the respondent was part of his house, but he had carved out two shops from a portion of the building facing the main road, which were let out for non-residential purpose. According to the definition of the word "building" as given in section 2(a) of the Ordinance, any part of the building once let out by the landlord also fell within the meaning of the term "building'. In this view of the matter, the disputed shop was also a building since it was used for the purpose of business and it became a non-residential building under section 2(d) of the Ordinance. According to the learned High Court, a landlord could not maintain an application for ejectment of a tenant from the shop on the ground that he required it for residential purpose. The application, according to the High Court, could be maintained only if the premises were required by the landlord for nonresidential purpose.
5. It was contended by the learned counsel for the appellant that the law made no distinction in the case of personal requirement of the landlord as to what use, whether residential or otherwise, the landlord will put in the premises after getting them vacated. Reference in this connection was made to the provisions of section 13(3)(a)(ii) of the Ordinance, where the words "requires it in good faith for his own use" occur with no other qualification attached to the words "own use".
6. On merits, it was pointed out by the learned counsel that the plea of the appellant that he required the premises for demolition and reconstruction was wholly ignored by the learned High Court. The learned counsel placed reliance on the judgment of this Court in the case of Abdul Bari v. Khadim Hussain (PLD 1978 SC 78), in which case too, the landlord's application for eviction of the tenant from a non-residential premises for the purpose of reconstructing the same for residential accommodation was allowed.
7. The grievance of the learned counsel for the appellant that the plea of the landlord that he required the premises for demolition and reconstruction was not considered by the learned High Court, is borne out from the impugned judgment. Such being the case, the judgment of this Court referred to above, fully supports the case of the appellant. The learned counsel for the respondent was unable to distinguish the above case.
We would, however, like to further observe that while section 11 of the Ordinance bars the conversion of a residential building into a non-residential building without the permission in writing of the Controller, the conversion of the same is not prohibited. In the instant case, the landlord had applied for eviction on the ground of reconstruction and personal use.
8. The question of bona fide requirement having been decided in favour of the appellant, this appeal must succeed. The impugned judgment of the High' Court dated 2-3-1983 is accordingly set aside.
9. In the result, the order of ejectment dated 31-5-1976, passed in the rent case by the Rent Controller, and the judgment of the learned Additional District Judge dated 3-12-1978 dismissing the Rent Appeal of the respondent, shall stand restored. There will be, however, no order as to costs.