' This appeal is directed against the judgment dated 26-4-1989 whereby the appellant tenant was directed to vacate the demised premises and to hand over its possession to the respondent. The facts of the case are that the respondent is the owner and landlord in respect of House No,R-161/18, Customs Cooperative Housing Society, Federal 'B' Area, Karachi which is built on a 120 sq. Yards plot and contains two rooms and two shops on the ground floor. One of the shops was rented out to the appellant on a monthly rent of Rs,100 vide rent agreement dated 20-1-1970. The rent was later on enhanced to Rs,175 per month. The appellant is running a Medical Store under the name of Bilal Medical Store in the demised premises. The respondent had sought the ejectment of the appellant on the sole ground of his personal requirements and his case is that he had rented out the demised premises when he was a bachelor and when he did not require much accommodation but subsequently he married and had five daughters and now the accommodation available in the house Was proving insufficient for his growing requirements. The respondent had even asked his younger brother, who was earlier living with him, to shift to some other place because of the shortage of the accommodation. The appellant tenant resisted the ejectment application and in his written statement he claimed that the landlord was in possession of three rooms and that, notwithstanding the fact that he had five daughters, the accommodation in his possession was sufficient for his requirements. The appellant further stated that when he took on rent the demised premises in 1970, the area was not commercially developed but now it had great commercial value and the demised premises could fetch Rs,50,000 in Pagri and therefore, the respondent was seeking his ejectment merely to re-let the premises after raising the Pagri. It was further stated that in fact two brothers of the respondent were living with him and both of them had shifted to their own houses and the accommodation in their possession had now fallen to the lot of the respondent and thus the accommodation in his possession now was more than in the past.
Learned Rent Controller came to the conclusion that the respondent did require the premises bona fide for his personal use and requirements and ordered the eviction of the appellant. Hence this appeal. Learned counsel for the parties have been heard and record perused.
2. Learned Rent Controller had made site inspection on 11-10-1987 and his inspection note is available on the file at page 71. It shows that there were two rooms in the house besides one bath room, one kitchen and one WC and one room on the first floor measuring about 8`x 16'-3" which contains the overhead water tank and which is also used as a store room as various household articles were lying in it. Besides the two rooms on the ground floor there were two shops as well, one of which is the shop in dispute. It is idle to dilate upon the accommodation vacated by the two brothers of the respondent or to the extent of the area available to the respondent. 120 Sq. Yards plot can hardly provide more than three rooms on the ground floor and after the exclusion of the area occupied by the two shops, the remaining area can hardly be sufficient for more than two rooms. Judicial notice can be taken of such facts. This is exactly what is revealed by the inspection note. When the brothers of the respondent were living with him in this house, they were obviously sharing the two-room accommodation available in the house and therefore there is hardly any force in the argument that after these brothers moved out of the house the accommodation problem eased for the respondent. Learned counsel for the appellant tried to give an impression that the respondent had not come to the Court with clean hands inasmuch as he concealed the fact that there was also another room on the first floor, besides the two rooms on the ground floor.
As would appear from the inspection note, there is, strictly speaking, no room whatsoever on the first floor. There was overhead water tank on the roof around which walls were raised and roof placed but still the structure can hardly be called a room. It is preposterous to imagine that someone would live in such a structure with the water tank in the middle of it. It could, of course, be used as a store room for dumping the articles not in daily use and at best it can be called a store room but under no circumstances it can be called a room unless the meanings of the word are stretched to a breaking point. It therefore follows that the respondent did not conceal any material fact and for all intents and purposes he is at the moment in the possession of two rooms, both of them on the ground floor. It is therefore now to be seen whether this accommodation is sufficient for his needs.
3. In his cross-examination, the appellant conceded that the daughters of the respondent were grown up and four of them were studying in II Year, VIII class, VII Class and VI Class. He could not state if the second eldest daughter was studying in First Year but nevertheless conceded that she was about 14 years old. At any rate, the cross-examination of the appellant shows that all the daughters of the respondent are sufficiently grown-up and apart from sufficient accommodation, they also require some privacy for a decent living and for purposes of study. If the respondent and his wife take one room, this leaves only one room for all the five daughters. The respondent admittedly is an Officer of the Customs Department and, as he stated, would like to have a drawing room to entertain his guests. There is, however, no room available in the house for the proper accommodation of the five daughters, not to speak of a drawing room or a dining room. It therefore cannot be denied that the respondent does require more accommodation. In fact, it appears to me that even after he obtains the possession of the demised premises, both in this appeal as well in Appeal No,384/85, even then the accommodation would not be sufficient for the needs of the respondent.
4. Learned counsel for the respondent imputed mala fides to the claim of the respondent and I also find that an attempt had been made to prove that the respondent had taken Rs,20,000 as pagri at the time of the inception of tenancy. A suggestion to this effect was put to the respondent in his cross-examination which was of course repelled. However, I fad that the appellant did not state anything in his affidavit-in-evidence as to the payment of, Rs,20,000 as pagri; besides such a claim is beyond the pleadings inasmuch as no such allegation was made in the written statement. What is, however, still more significant is that while a suggestion was put to the landlord in his cross- examination that he had received Rs, 20,000 as pagree, indicating that the case of the tenant was that he had paid this amount as pagri, he admitted in his cross-examination that he had not paid any pagri as at the time of inception of tenancy pagri was not in vogue in the area. I am shocked to note that such a patently false suggestion was put to the landlord and a patently false case was sought to be set up in cross-examination. Learned counsel who cross-examined the landlord has evidently committed a very serious breach of professional discipline. Some evidence was brought on record in the form of the assertion in the affidavits-in-evidence of OW-1 Sheikh Shamsuddin and OW-2 Mohammad Zaffer Khan that the respondent had demanded Rs,50,000 as additional Pagri and had threatened that if this amount was not paid, he would institute ejectment proceedings against the appellant. Besides that this evidence is unreliable and does not command confidence it is again outside the pleadings. No such allegation was made in the written statement that the respondent had demanded pugri of Rs,50,000. The written statement merely stated that the locality had developed sufficiently from commercial point of view and the demised premises could fetch a pugree of Rs,50,000 to Rr.60,000. This assertion in the written statement appears to have been improved upon and, at the stage of evidence, converted into the direct allegation that the respondent had demanded Pagri of Rs,50,000. I am convinced that there is no truth in this allegation. A very interesting assertion is made by the appellant in para-4 of his affidavit-in- evidence in which he says that the room on the first floor was being used as a drawing room. We have already seen above that this so-called room contains the overhead water tank in the middle of it and I fail to visualize a drawing room with a water tank in the middle of it and the guests sitting around. I have no doubt in my mind that this assertion of the appellant is nothing but a complete untruth.
5. Learned counsel for the appellant referred to the judgment in Moinuddin v. Master Bashir Ahmed 1987 CLC 472 in support of his contention that the demised premises were commercial and the landlord could not claim them for residential purposes. It was held in this judgment that the nonresidential premises or shops cannot be directed to be given in the possession of the landlord for residential purposes. This judgment does not lend any support to the argument of the learned counsel. Property bearing No,R-161/18, Customs Cooperative Housing Society, Federal "B" Area, Karachi, cannot, by any stretch of imagination be called a non-residential building. It is beyond any shadow of doubt a residential house. If a room or two on the ground floor are converted into shops and rented out, it does not mean that the building has turned to a nonresidential building. The premises, for all intents and purposes, were and still are residential premises. This judgment therefore has no applicability to the present case. Besides this, Learned counsel for the respondent has brought to my attention the judgment reported as 1985 SCMR 1555 Abdul Malik v. Haji Ejaz Ahmed in which the following observations are very material.
"The word "premises" means a building or land let out on rent but does not include a hotel.
Accordingly, there is a marked distinction between the provisions of the two statutes and it is not permissible to import those considerations as were available under the West Pakistan Urban Rent Restrictions Ordinance, 1959 while defending an action for ejectment under the Sindh Rented Premises Ordinance, 1979. Equally, even if the premises were let out for a non-residential purpose, that stipulation in the agreement cannot override the plain meaning of the above referred to provisions nor can it operate as an estoppel. Accordingly the judgment of the High Court is unexceptionable."
' At another place in the same judgment it was observed that the words "premises" and "building"in the 1979 Ordinance do not make any distinction between commercial and residential use nor clause (vii) of section 15 spells out any such distinction. The gist of this judgment is that whereas the repealed 1959 Ordinance made distinction between commercial premises and residential premises, no such distinction was made in the 1979 Ordinance. In this view of law, the objection raised by the learned counsel for the appellant that the demised premises being a shop cannot be claimed by the respondent for residential purposes has no force, apart from the fact that the demised premises are part of the residential house and notwithstanding the fact that they were let out as a shop it still remains part of residential premises.
6. It is also worth noting that the appellant owns a house not only in the same locality but on the same road and only a short distance away and in which he is living. He can very well, if he so likes, convert one of the rooms on the ground floor of his house and use it as a shop. There is therefore no force in the contention of the learned counsel for the appellant that the appellant has established his goodwill in the area and would be ruined if he is forced to shift his shop to some other locality.
7. There is good deal of oral evidence on both the sides but I need not refer to it as the facts of the case have been sufficiently established on record even without it.
8. For the reasons given above, I am satisfied that the respondent does require the premises bona fide for his personal requirements and that the accommodation in his possession is far short of his requirements. As a result I agree with the finding of learned Rent Controller with the result that the appeal is dismissed and the impugned judgment is upheld. However, in view of the fact that the appellant would require some time to find alternate accommodation for his business, I would allow him four months' time from today to vacate the premises. Parties are left to bear their own costs.