' This second appeal under section 15, subsection (6) of the Punjab Urban Rent Restriction Ordinance, 1959 by the tenant M/s. Epsilon Engineering International comes from the judgment of the learned Additional District Judge, Lahore, dated 29-14992 whereby the appellant's appeal against the order of the learned Rent Controller dated 27-6-1991 was dismissed. The learned Rent Controller had by his order dated 27-6-1991 directed the eviction of the appellant from the premises in question.
2. The facts relevant for the purpose of this appeal are not in dispute. The property in question, Property No,19-Abu Bakar Block, new Garden Town, Lahore, is a residential house. A part of it was let to the appellant for the purposes of its business. The landady MRs, Qamar Jehan, respondent herein, sought the appellant's eviction on the ground that her three sons named Asim Hussain Rana, Asif Hussain Rana and Qasim Hussain Rana who were all doctors required the premises for use as their clinic. The learned Rent Controller found in favour of the landlady and that finding was affirmed on appeal by the learned Additional District Judge.
3. The principal question raised by learned counsel for the appellant is that as the property in question was a residential building and the learned Additional District Judge erred in law in directing the appellant's eviction for a purpose other than residential, thereby treating the property in question as non-residential building. For his contention he strongly relied upon the law laid down in Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others PLD 1985 Supreme Court 242. Learned counsel for the respondent argued that this appeal is barred by time; that as the property in question is a residential building, no second appeal lies under section 15, subsection (6) of the Punjab Urban Rent Restriction Ordinance, 1959 (to be referred to as the 1959 Ordinance) and in any case the purpose for which the building is sought to be vacated, namely, the purpose of a clinic is not a commercial purpose.
4. The order of the learned Additional District Judge was made on 29-1-1992; this appeal was filed on 7-6-1992 and there is no doubt that it was filed beyond the period of limitation. The appellant has made an application under section 5 of the Limitation Act. In that connection, it was pointed out that there was some doubt about the appellant's right of appeal under section 15, subsection
(6) of the Punjab Urban Rent Restriction Ordinance, 1959, as amended by the Punjab Ordinance No, XIII of 1990, Punjab Ordinance No,XXXI of 1990, Punjab Ordinance No,VIII of 1991 and the Punjab Urban Rent Restriction (Amendment) Act, 1991. The appellant had, therefore, filed a writ petition on 16-4- 1992 challenging the learned Additional District Judge's judgment dated 29-1-1992. However when the law was settled, that writ petition was withdrawn on 20-10-1992. This appeal was filed on 7-6- 1992.
5. The admitted position is that the premises in question were let to the appellant for the purposes of business and were, therefore, a non-residential building. It is true that the right of second appeal to this Court in respect of non-residential buildings was given by Ordinance No,XII of 1990, which came into effect on 6-6-1990 by amending section 15, subsection (6) of the Ordinance. The amended section 15, subsection (6) reads:-- "In the case of "non-residential building", a person aggrieved by an order passed on appeal by the appellate authority may, within 30 days from the date of the said order, prefer an appeal in writing to the High Court."
6. This eviction petition had been brought on 10-1-1990, that is before the coming into force of Ordinance No,XIII of 1990. There was some doubt if that Ordinance applied to such cases. The view taken by a learned Single Judge of this Court in one case, namely, Sh. Muhammad Sadiq and another v. L.A. Khan (1991 M LD 1205) was that no second appeal lay in cases in which the ejectment petitions had been filed before the right of second appeal was conferred by the Punjab Ordinance No,XIII of 1990. In another case, namely, Sh. Jan Muhammad v. Mst. Rabia Begum and others (1992 CLC 78), however, a contrary view, namely, that the right conferred by Ordinance No,XIII of 1990 was also available in cases in which the ejectment petition had been filed before the coming into force of the Punjab Ordinance No, XIII of 1990 was taken. This conflict was resolved in Haji Muhammad Ibrahim and 3 others v. Mst. Surrayia-un-Nisa and 9 others (PLD 1992 Supreme Court 637) in favour of the view taken in Sh. Jan Muhammad's case. In view of this conflict, the appellant is in my opinion entitled to the condonation of delay in the filing of this appeal. (See Ch. Sardar Muhammad Khan v. Muhammad Miskeen and 2 others (1991 CLC 963).
7. Learned counsel for the respondent, however, argued that as the building, of which the premises in question are a part, is a residential building, the premises in question must also be treated as residential premises, and the appellant cannot avail itself of the provisions of the amended section 15, subsection (6) of the 1959 Ordinance. This contention ignores the definition of "building" in section 2 of the Punjab Rent Restriction Ordinance, 1959 (to be referred to as the Ordinance); there the expression "building" is defined to mean "any building or part of a building let for any purpose".
It seems to me, therefore, that although the building, of which the premises in question are a part, is a residential building, yet as the premises in question were admittedly let for a non-residential purpose, and as the eviction of the appellant was sought from these premises only, it is the character of these premises and not that of the building as a whole that must be taken into consideration for the purposes of the amended section 15, subsection (6) of the Ordinance.
8. Admittedly, the building of which the premises in question are a part is a residential building. It was also common ground between the parties that the premises in question were let to the appellant for the purpose of business that is to say for a non-residential purpose. In Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others (PLD 1985 Supreme Court 242) also, the building in question was a residential building and the eviction of the tenant was sought from a portion on its ground floor on the ground that the landlords required that portion for their residential use "notwithstanding the fact that it was leased out to the appellant for commercial/business use and he in fact used it for that purpose." Reference was made to Raja ()urban Khan v. Begum M.M. Sharif and another (1980 SCM R 590); in that case a residential property was rented out as a residential property but the tenant had converted it into a nonresidential unit without the written consent of the landlord. That case had proceeded on the assumption that the landlord had acquiesced in the conversion made by the tenant. It was held; and here I quote from Syed Amjad Ali Shah's case pages 250 and 251, "that notwithstanding the change in the use of a residential unit into a non- residential unit, with or without the consent of the landlord, it would not amount to the change of character of the building for purpose of eviction under section 13 as from a residential building and the requirement of the landlord (if it is on that basis) would also have to be for residential use." Raja Qurban Khan's case was followed in Syed Amjad Ali Shah's case and it was held further:-- "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".
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 persons 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 land' 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 for converting a residential building into a non-residential building."
9. The ratio decidendi of Syed Amjad Ali Shah's case appears to be this that if a building is a residential building, it will retain the character of a residential building till such time as permission under section 11 of the Ordinance is obtained from the Rent Controller for converting it into a nonresidential building and that though the building or a part of it had been let for a non- residential purpose, yet the landlord cannot have the rented premises vacated for his personal use for a purpose other than residential till permission of the Rent Controller is obtained. In the words of the Supreme Court (at page 253) a lanldord can regain possession of the building "for the requirement of his own use in accordance with the original character of the building". As, in this case, the original character of the building in question was residential, and the purpose for which the building is sought to be vacated is a non-residential purpose, namely, the purpose of a clinic, it follows that the landlady was not entitled to have the building vacated for that purpose and that the learned Rent Controller and the learned Additional District Judge were wrong in law and acted without their jurisdiction in ordering the appellant's eviction on that ground.
10. Learned counsel for the respondent referred to Dr. Bano Abedin v. Dr. Haq Nawaz Arbab (PLD 1982 Karachi 818) to contend that a Doctor's clinic is not a commercial purpose. In that case, however, the clinic had residential accommodation for the patients and staff.
11. For these reasons, the appeal is accepted, the orders of the Rent Controller and the Appellate Authority dated 27-6-1991 and 29-1-1992 respectively are set aside and the eviction petition is dismissed. The parties are, however, left to bear their own costs.