Briefly stated facts of the case out of which this SAO has arisen are that a residential Bungalow No.D/483, Satellite Town, Rawalpindi consisting of 3 Bedrooms, 3 Bath Rooms, 2 Dressing Rooms, One Drawing/Dining Room, Study Room, Garage, Servant Quarters, Servants bath and latrine was taken on rent by Sh. Salim Ali Managing Director of Allay Brothers Limited, 63, The Mall, Lahore from Mst. Sitara Zaidi, the respondent in this appeal vide lease agreement ExA-2. The respondent filed a petition for ejectment against the appellant on the ground of wilful default in payment of rent, personal need and conversion of the premises illegally from residential to commercial. This petition was contested by the appellant and the relationship of landlord and tenant was also denied on the ground that the tenancy vested in M/s. Allay Brothers and Company Limited and not Sh. Salim Ali, the appellant. Other averments the ejectment petition were also denied. The plea of the appellant- respondent is that premises are being used for commercial purpose right from the beginning and that there is no illegal conversion of the residential premises into commercial premises.
2. On the basis of pleadings of the parties, initially the following issues were framed:--
(1) Whether the respondent is wilful rent defaulter?
(2) Whether the petitioner requires the rented premises for her personal use and occupation in good faith?
(3) Whether the respondent has converted the rented premises from the residential into the commercial nature without permission of the petitioner? If so, its effect?
(4) Order:
3. The evidence of the appellant was closed by the learned Rent Controller vide order dated 3-9- 1990. This order was sought to be reviewed by the appellant but the petition was dismissed vide order dated 16-10-1990. On 29-11-1990 the appellant moved an application for framing of an additional issue with regard to the existence of relationship of landlord and tenant between the parties. This application was accepted by the learned Rent Controller and the following additional issue was framed:-- 3-A.--Whether there is relationship of landlord and tenant between the parties?
4. After recording of evidence on the additional issue as well, the Rent Controller accepted the Ejectment Petition and directed eviction of the appellant. Aggrieved of this order, the appellant filed an appeal before the Additional District Judge which has been dismissed vide order dated 20-6- 1992. Findings rendered by the Rent Controller on all the issues have been affirmed. The order of ejectment passed by the learned Rent Controller affirmed in appeal has been challenged through this S.A.O. which has been filed by the tenant.
5. At limine stage, Mr. Habibul-Wahabul Kheri, Advocate has appeared on behalf of the respondent to oppose the admission of this appeal. Learned counsel has raised a preliminary objection about the competency of this S.A.O. on the ground that the premises in question being residential in nature, second appeal is not available to the tenant as is clear from the provisions of section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 as amended upto date, therefore, the appeal is liable to be dismissed on this short ground.
6. Meeting the above preliminary objection raised by the learned counsel for the respondent, learned counsel for the appellant argued that as the premises are being used by the appellant for commercial purpose, therefore, it shall be deemed to be a non-residential building and, hence, the remedy of second appeal shall be available to the appellant. In support of his contention, learned counsel has placed reliance on case of Suba v. Siraj Din PLD 1977 Lahore 1263. Learned counsel has further argued that in case it is held that S.A.O. is not competent, the same may be converted into a writ petition.
7. In reply to the arguments, addressed by the learned counsel for the appellant, learned counsel for the respondent has argued that user of a property which is of a residential nature without permission of the landlord and the Rent Controller for a commercial purpose in fact entails penalty against the tenant and it does not make a residential building into a non-residential building and, therefore, second appeal being not available regarding order of ejectment passed in relation to the residential building this SA.O. is not competent. Learned counsel has argued that although the Court can exercise jurisdiction to convert the SA.O. into a writ petition, yet the discretion of conversion should not be exercised in favour of the tenant who has been held liable to be ejected and who has even denied the relationship of landlord and tenant on flimsy grounds and has also failed to pay the rent at increased rate in accordance with the provisions of the Punjab Urban Rent Restriction Ordinance, 1959, therefore, keeping in view the conduct of the appellant, it is not a fit case for these proceedings to be converted as a writ petition.
8. Learned counsel for the appellant while replying to the arguments of learned counsel for the respondent has reiterated his earlier arguments and has contended that it is a fit case where S.A.O. is converted into a writ petition, inasmuch as appellant in spite of denial of relationship of landlord and tenant is regularly depositing the rent at the rate of Rs.3,500 as per direction given by the Rent Controller and so far as the payment at increased rate of rent is concerned, it was not payable by the appellant in view of the order passed by the Rent Controller particularly when neither any such prayer has been made by the landlord in his petition nor the order has been modified by the learned Rent Controller.
9. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record of this case. In order to decide the preliminary objection, it will be necessary to reproduce some of the provisions of the Punjab Urban Rent Restriction Ordinance, 1959 as amended upto date:-- PUNJAB URBAN RENT RESTRICTION ORDINANCE, 1959 Section 2, Clause (d)
In this Ordinance unless there is anything repugnant in the subject or context:
(d) "non-residential building" means building being used solely for the purpose of business or trade;
(g) "residential building" means any building which is not a non-residential building; Section 5-A.
Increase of rent of non-residential building:
(1) The rent of a non-residential building shall stand automatically increased at the end of every three years of its tenancy by twenty per cent of the rent already being paid by the tenant.
(2) The first increase under subsection (1) shall accrue:--
(i) on the first day of July, 1989 in the case of a tenancy existing for three years or more preceding that date; and
(ii) on the completion of three years of tenancy, in the case of a tenancy which has not been existing for three years on the first day of July, 1989.
(3) Where, during the period of three years, in cases mentioned in subsection (2):-
(i) the rent has already been increased by an amount less than twenty per cent of the total rent, the amount of such increase shall be deducted from the increase under subsection (1); and
(ii) if the rent has already been increased by an amount equal to or more than twenty per cent of the total rent, no increase under subsection (1) shall accrue until the expiry of three years from the date of such increase.
(4) The arrears becoming due as a result of the increase of rent under this section shall, unless paid earlier, be deemed to be rent due under clause (1) of subsection (2) of section 13 on the expiry of sixty days from the date on which this Ordinance comes into force.
(5) All proceedings arising from the provisions of sections 4 and 5, in respect of a non-residential building, and pending before the Controller or the Appellate Authority or any Court shall abate.
(6) The provisions of subsections (1) to (5) shall not apply if a landlord and a tenant agree to increase the rent by an agreement in writing executed before the Controller."
Section 15
(1) Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may within thirty days of date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated: Provided that no appeal shall lie against an order made by a Controller under subsection (6) of section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due: Provided further that no appeal shall lie from an interlocutory order passed by the Controller...,
(6) In the case of a "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.
(7) Unless it dismisses the appeal in limine, the Appellate Authority or the High Court, as the case may be, shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and if necessary, after making such further inquiry as it thinks fit.
(8) An order passed by the Controller, the Appellate Authority or the High Court under the provisions of this Ordinance, shall not be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance."
10. A persual of the above provisions of law clearly shows that a nonresidential building is a premises which is used solely for the purpose of business or trade. The word being used in section 2(d) necessarily refers to the point of time when the premises are let out. Therefore, if premises is of a residential nature on the date on which it is let out, subsequent user of the premises is irrelevant for the purposes of taking a decision as to whether the premises is residential or non-residential in nature. In the case in hand, the premises in question is residential in nature and is situated in residential area, therefore, even if it is being used by the tenant for commercial purpose, nature of the premises will not change from a residential into a non-residential for the purpose of applicability of the provisions of Punjab Urban Rent Restriction Ordinance, 1959. Reliance for the above view is placed on the law declared in the following cases:-- .
(1)Nek Muhammad v. Muhammad Shaft and another (1983 SCMR 180).
(2)M/s. Atiq Silk Mills v. Tar Muhammad (1984 CLC 997).
11. In case of "Nek Muhammad", at page 182 of the report, it has been held as under:-- It is true that clause (d) of section 2 of the Rent Restriction Ordinance, 1959, defines a non- residential building' as meaning a building being used solely for the purpose of business or trade, but this definition is of no avail to the petitioner in the present case. We have perused the rent deed dated the 13th of March, 1973, and find that it clearly recites that the entire property petitioner was taking on lease was a shop, which would indicate that the entire property was a nonresidential building at the time the petitioner took it on rent from the respondents. If subsequently he has also started residing in the Chaubara comprised in the building, it does not mean that it has been converted into a residential building. As the entire property had been taken by the petitioner under a single lease deed as one unit, the Courts below were justified in treating the property as being a shop in accordance with its description and use at the time it was leased out to the petitioner. On this view of the matter the personal bona fide requirement of one of the landlords had to be judged in the light of his business needs.
In case of "M/s. Atiq Silk Mills", at page 999 of the report, it has been held as under:-- Learned counsel for the appellants has relied on the case of Messrs Rahman Cotton Factory v.
Messrs Nichiman Company Ltd. (1) in which it has been held that a factory is not covered by the term building as defined by the said Ordinance and as such jurisdiction of Rent Controller is barred from entertaining an ejectment application in respect of such factory. This case is not applicable because no factory was let out to the appellants. According to the lease agreement only a shed was let out alongwith some fixtures without any machinery or rooms. The appellants cannot wriggle out of the two lease-agreements which were admittedly executed by them in favour of the respondent, according to which they had taken on rent only a plot and a shed alongwith some fixtures. Thereafter they had installed some looms for running silk factory. The subsequent conduct of the appellants will not convert the nature of the building or premises so as to exclude them from the purview of the said Ordinance. the definition of the 'building' for the purpose of applicability of the said Ordinance would be that which applied to the premises at the time when it was rented out by the landlord. The subsequent conversion of the building for a different purpose would not alter the nature of the premises as it originally stood, so as to exclude the same from the purview of the said Ordinance.
12. Consequently, I hold that the premises in question being residential in nature subsequent user thereof by the tenant for commercial purpose will not make it non-residential in nature and character. Case of 'Suba' referred to supra by the learned counsel for the appellant is distinguishable on facts and, therefore, is not attracted to the facts of the case in hand and at any rate is not in consonance with the law declared by the Hon'ble Supreme Court in case of Nek Muhammad' referred to supra, hence, with great respect for the learned Author Judge His Lordship Mr. Justice Aftab Hussian, J. (as his Lordship then was), I venture to dissent from the view taken in the cited judgment. As second appeal under the provisions of Punjab Urban Rent Restriction Ordinance, 1959 as amended upto date is not available to the residential building, consequently, this SA.O. is not competent and, hence, is liable to be dismissed.
13. So far as the question of conversion of this SA.O. into a writ petition is concerned, there is no cavil with the proposition that conversion can be allowed in exercise of discretion of this Court as held in cases of Ali Muhammad alias Ali Ahmad and others v. Mahbub Ahmad and others (1987 SCMR 1263) and Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139).
However, keeping in view the fact that the appellant denied the relationship of landlord and tenant on flimsy and extraneous grounds and there is a finding of fact that there is a default in payment of rent and remedy of writ is quite different to a remedy of SA.O. in form and substance, I do not deem it a fit case for exercise of my discretionary jurisdiction to allow this SA.O. to be converted into writ petition. However, the appellant, if so advised may file a writ petition, if the said remedy is available to him under the law which, if filed shall be decided on its own merit.
14. Resultantly, this SA.O. is dismissed as being incompetent with the above observations.