GUL ZARIN KIANI, J.- This application under Article 199 of the Constitution or second appeal under Section 15(6) of Punjab Urban Rent Restriction Ordinance, 1959 as amended, which it is now sought to be converted into and treated as, is against an agreed decision of the courts below directing ejectment of petitioner from property No. 63-64, situate on Murree Road, in Mohalla Waris Khan of Rawalpindi City, on the ground of its bonafide requirement for the self-use and occupation of the owner-landlord. Order of Rent Controller is dated 4.3.1991 and that of lower Appellate Court 16.12.1991.
2. Above mentioned property is owned by Ch. Abdul Rehman's. He belongs to and hails from Mirpur in Azad Kashmir. By a deed reduced in writing on 29.9.1977, he let out portions of the afore- mentioned building to Kamal-ud- Din, as his rent-paying tenant for eleven months w.e.f. 1.10.1977 to 31.8.1978 at the rate of Rs.800/- per month. Letting of the building was for running of a Technical Institute in it by the tenant. Rent-deed is Ext A1. By yet an other deed reduced in writing on 29.9.1979, the lease was extended w.e.f. 1.10.1979, upon payment of enhanced monthly rent of Rs. 1200/-. No period of tenancy was specified in the deed executed on 29.9.1979, which is Ext A2 on file.
3. On 2.1.1986, the owner-landlord (for short respondent) brought a petition for ejectment of the tenant (hereinafter referred to as petitioner) on the ground that the tenanted premises were bonafide required by him for his self-occupation. Petitioner submitted his defence and contested the ejectment petition. It was averred that the object behind the ejectment petition was a mere attempt for enhancement of monthly rent, whereas in reality, the premises were not needed by the respondent for his self-occupation, because he was resident of United Kingdom, to which place he had shifted alongwith his family. It was further averred that a sum of Rs. 40,000/- were given to the respondent as advance money (Pugri) and also that the building let out for commercial purposes could not be taken back for mere residential requirements. On 16.4.1986, a direction for deposit of rent was made by the Rent Controller. On 30.4.1986, following issues were settled for determination:-
1. Whether property-in-question cannot be got vacated for residential purpose? OPR
2. Whether the petitioner in good faith, requires the rented property for personal use and occupation? OPA
3. Order.
4. At the instance of petitioner, on 2.11.1986 an additional issue, numbered as 2-A was added.
It runs:- 2-A. Whether the respondent has paid Rs. 40,000/- as Pugri to the petitioner? If so, its effect? OPR
5. Thereafter, the ejectment case was adjourned for respondent's evidence. It was eventually recorded on 28.2.1987 and ejectment case then adjourned for petitioner's evidence. Petitioner recorded his own statement on 9.3.1989 and except for documentary evidence closed his case.
Meanwhile, on 13.5.1989, defence of petitioner was struck of for failing to obey and comply with the rent-direction and his forthwith ejectment ordered. Against this ejectment .Order, petitioner preferred an appeal. It was allowed by a Additional District Judge on 16.1.1990, holding that no default was made and the eiectment cane was asked to enter appearance before the trial court on 26.1.1990. Upon remand, the petitioner applied for adding an issue on the nature of property. On 30.1.1991, Rent Controller added issue No.2-B as given below:- 2-B. Whether the rented premises are commercial in nature and thus cannot be vacated for residential purposes? OPR
6. Therefore, some more evidence was taken on the petitioner side. It included the statement of Sheikh Amjad Mehmood RW-2 and some documents. It may be noted that a further attempt by the petitioner for more evidence was not entertained by the Rent Controller.
7. Upon review of evidence brought on record, Rent Controller found that the rented premises were bonafide required by the respondent for his self-occupation; that letting and use of premises for commercial purposes did not preclude their user for residence by the owner-landlord and Section 11 of Rent Ordinance was not a bar to it; and payment of Pugri was not proved. Consequent upon the above conclusions, an order for ejectment of the petitioner from the premises in his possession was passed on 4.3.1991, by giving him thirty days to hand over possession to the respondent.
Petitioner filed an appeal. It failed on 16.12.1991. While dismissing the appeal, the court gave one more month to the petitioner for vacating and handing over of the possession. Having lost on the disputed points in the courts below, petitioner has invoked constitutional jurisdiction of this court for their examination a new. 16.12.1991. While dismissing the appeal, the court gave one more month to the petitioner for vacating and handing over of the possession. Having lost on the disputed points in the courts below, petitioner has invoked constitutional jurisdiction of this court for their examination a new.
8. On behalf of petitioner, it was strenuously contended that a building once put to a commercial user was not revertible for its use as residential in view of a clear bar laid in Section 11 of Rent Ordinance and also because of separate definitions and treatment of specified buildings such as residential, non-residential and scheduled. It was further argued that personal bonafide need of the premises was not born out from the record. In elaborating the contention, learned counsel submitted that the respondent alongwith his family members had permanently shifted to United Kingdom and did not intend or desire to come back home for his re-settlement. It was argued that having received Pugri, respondent was precluded from claiming ejectment of the petitioner on the basis of his self-need. Lastly, it was submitted that the Rent Controller as well as the lower Appellate Court were erroneous in shutting out the petitioner from leading additional evidence, which was necessary for a satisfactory decision of the ejectment case against him.
9. Upon scrutiny of record and hearing of extensive arguments and also going through the case law cited at the hearing by the learned counsel, none of the contentions urged by him were found to have any substance. Building-in-question was three storeyed. Its sanctioned building plan clearly indicated that it was structured as residential. Apart from shops located on the right and left side of the Deohri (entrance) rest of the accommodation in it was manifestive of its basic residential character. Site-plan Exl. A3 on file was supportive of it. So, the fundamental character of the building was residential. Its temporary use for a non-residential purpose would not adversely impinge on its original and basic character. It is in evidence that buildings in its close vicinity were still in use as residential by their occupants. Despite a visible trend for putting to gainful uses of residential premises or a port of them for commercial purposes in the city, location of building-in- question, its surroundings and basic them of structure would hardly make it unsuitable to meet personal requirement of its owner to reside in it. There was no inherent impediment for its user as residential building. Mere separate definitions and treatment of residential non-residential and scheduled buildings in Rent Laws was not a strong circumstance to hold that the building which essentially was of a residential nature once put to commercial user could not be converted into a use for residential building by its owner-landlord. In taking this view, I am firmly supported by cases in Shabhir Vs. Dr. Miss Shahnaz Somjee -1985 CLC 2841, Syed Amjad Ali Shah Vs. Iqbal Ahmad Farooqi and Others -PLD 1985 Supreme Court 242, Muhammad Ramzan Vs. Abdul Honan 1985 SCMR 2082 (2), Messrs Allah Ditta Musical Company Vs. Muhammad Idrees Baqir and eight Others -1986 CLC 591, Mrs Dhumai Phiroze Dalai Vs. Mrs Freny A. Cavina -1986 CLC 1109, Messrs Hafeezan Coal Company and four others Vs. Abdul Qayyum -PLD 1987 Quetta 197, Muhammad Yaqoob and three others Vs. Mst. Bibi KhorJan and three Others -1990 CLC 1625, and M.Amjad Bhutta and Co.
Through M.Amjad Bhutta and another Vs. Malik Abdul Majid Tiwana, District Judge, Sialkot and others PLD 1990 Lahore 412. Therefore, the argument that the building had lost its residential character permanently and could no longer be put to this use was not sound and I am not prepared to maintain it. This conclusion takes me to examine the other argument touching on bonafide personal requirement of the landlord. As said elsewhere, respondent belongs to Mir-Pur in Azad Kashmir. As is common feature in our country, alike other developing countries its inhabitants leave it for search of a better livelihood in more prosperous lands abroad. Leaving and stay abroad is mostly temporary. Neither, the love of the mother-land is lost, nor link with it is ever broken. Upon gaining property and improvement upon previous status, emigrants return home for re-absorption in the main stream of which once they were a part. Respondent was not an exception to the general rule. He alongwith his family resided in United Kingdom. Some of his children were born there. One or two held a British nationality. Respondent had seven children of varying ages, some of them boys and other girls. He unequivocally deposed that he had decided firmly to return home and settle here. Some of the family members were already here. Therefore, mere statement of petitioner was insufficient to doubt the firm resolve of respondent. After all, it is he who has to decide about his and his family's future. Petitioner cannot reasonably dictate to him. Further, if in course of pending litigation, respondent once or twice visited abroad, that could not be a factor against him. In view of hazards of litigation and time factor involved in it, in our system, respondent could not be expected to sit idle and remain static. On record, there was sufficient material to convince that respondent bonafide required the rented premises for his self-occupation. He has no other house in the concerned urban area to look for. Courts below, upon examination of the entire recorded material held for him on this point. Thus, agreed finding on question of self requirement was neither faulty nor infirm. Since it was supported by record, it was binding for the purpose of present litigation. Having delat with above point, Ipropose to take up the plea about payment of pugri and its effect. In both the tenancy-agreements, Ext. A1, A2, there is no reference to it. Also respondent denied its receipt on oath. There were clear indications on record that before the induction of the petitioner, the premises were in occupation of one Sheikh Muhammad Hussain who was in litigation with respondent. Ext. R-2 showed that petitioner was put in by aforesaid Sheikh Muhammad Hussain. May be, there was some arrangement between him and the petitioner. So far as respondent was concerned, he had no hand in it and was not responsible to account for it to the petitioner. Therefore, transfer of consideration in form of a pugri from petitioner to respondent was not established by satisfactory evidence. Finally, grievance of shutting out evidence and denial of fair opportunity of defence to the petitioner in courts below was equally devoid of force. On this point, record would demonstrate against the petitioner. A simple ejectment case has taken about six years to finalize. There was enough time and opportunity for the petitioner to lead evidence at the appropriate stage of proceedings. Matter could not be kept lingering to suit his convenience.
Also, mere demand for enhancement of rent, even if proved to have been made would not tell on plea of bonafide self requirement, which is independently proved on record.
5. Having regard to the facts and circumstances outlined above, writ petition/second appeal has no substance in it. It is properly concluded by finding of fact. Consequently, it fails and is dismissed in limine. Petitioner is allowed a month to vacate and hand over possession to the respondent.
Original records be returned.