The facts giving rise to this second appeal from an order of the learned 'Rent Controller, Karachi, are as follows: ---
1. The, respondent is the owner of a double-storeyed building on "Plot No. 4/392, Liaquatabad, Karachi. A shop on the ground floor was let out to the appellant some twelve years earlier where he was doing business as a watch-maker. In January 1971, the respondent filed an .,application in the Court of the Civil Judge & Rent Controller, Karachi for -the eviction of the appellant, on the ground of personal requirements of herself and her family members. All that was alleged in the Written Reply 'herself that the application had been filed mala fide and with the intention of letting it out to somebody else on a higher rent. A number of witnesses were examined by the parties. The learned Rent Controller also inspected the site. On the basis of the evidence, he found that there were three rooms on the first floor; one room was occupied by the respondent, her husband and four minor children; the second room was occupied by the oldest son who had a wife and three children; and the third room was occupied by the family members of the second son. The third son, namely, Ahmed Umer, who was a student of M. A. Was living on the ground floor in a small room. He had been engaged, but the marriage remained deferred -for want of proper accommodation. He therefore concluded that the needs .Of the respondent were bona fide, and therefore allowed the application. An appeal was taken to the District Court which came to be dismissed by the learned Additional District Judge, Karachi, by his order, dated .31-7-1971.
2. It is to be seen, that the eviction of the appellant was sought on two grounds, firstly that the accommodation at the disposal of the respon--dent's family was so insufficient, that the marriage of the third -son had to be postponed on that account, and secondly that she wanted to expand her clinic, where she was carrying on homoeopathy practice. A choice had to be made whether it was needed for the one, or for the other purpose. At any rate it was so done. The respondent did not enter the witness --box. However, her husband, P. W. Mohammad Umar Khan has explicitly deposed, that the shop was required for residential purposes. The learned Rent Controller found that "there is no room sufficient to accommodate the newly-wedded bride, if brought in---------- -----..I therefore conclude that the applicant needs accommodation for the third son to occupy with his wife--(would be) after due addition and alteration". To the same effect is the finding of the learned Additional District Judge.
3. It is an admitted position that the premises in question is a shop, where the appellant was doing watch repair work. The question, which therefore falls for consideration is, whether the appellant could be evicted from a non-residential premises, to fulfill the residential needs of the respon-- dent, or her son as in this case.
4. There can be no gainsaying the fact, that the appellant was sought: to be evicted under paragraph (a) of subsection (3) of section 13 of the Ordinance, which is to the following effect: --- "(3) (a) A landlord may apply to the Controller for an order directing: the tenant to put the landlord in possession."
Paragraph (a) has two sub-paragraphs, one dealing with residential and the other dealing with non-residential buildings. These read as under: ---
(i) in the case of a residential building if-
(a) he requires it in good faith for his own occupation or for the occupa--petition of any of his children;
(b) he is not occupying another residential building, suitable for his, needs at the time, in the same urban area in which such building is. Situated; and
(c) he has not vacated such a building without sufficient cause after the --commencement of this Ordinance in the said urban area;
(ii) in the case of a non-residential building or a scheduled or rented land, if-
(a) he requires it in good faith for his own use or for the use of any of his male children;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time ; and
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said Urban area."
The provisos are not material and need not be reproduced.
5. It is to be noted that sub-paragraph (i) talks of the requirements of the landlord and his children, for his and their occupation, and sub-paragraph (ii) which deals with non-residential buildings, is confined to the use of the landlord and his male children. The succeeding clause, expressly introduces the words "for the purposes of his business". The scheme of the Ordinance, to my mind seems to be, that a residential building (building as. Defined in the Ordinance means and includes "part of a building let for any purpose. . ."), can be put in possession of a landlord to meet bona fide residential 'needs of the landlord or any of his children and the non-residen--tial building for the bona fide non-residential requirements of the landlord and his male children. It will therefore follow, that notwithstanding good faith, a non-residential building can not be directed to be given in the possession of the landlord, for residential purposes of his own, or, the limited category of male children and vice versa.
6. The learned Additional District Judge, was however of the view that it could be so ordered and he sought support from the case of Mohammad Amin Beg v. Pir Mohd. Khan (PLD 1965 Lah. 385). In the precedent case, the building, which was double-storeyed, was left out for a composite purpose, namely, business and residence. It was because of this composite use, that the building was found to fall under the definition of residential building enabling the landlord to apply to the Rent Controller for the eviction of the tenant from the entire building for personal residence. This decision will therefore be of no assistance. I am of the opinion that the appeal must succeed.
7. I will, therefore, set aside the orders and allow the appeal. The parties will bear their own costs throughout.
S. A. H.