' The relevant facts leading to the present appeal are that the respondent is owner of Bungalow No, 18-A, Gulberg-II, Lahore. She let out the same to the appellant vide agreement Exh.R/7, dated 31st January, 1978. The rent was initially fixed at Rs,2,000 per month. However, the same was enhanced to Rs, 3,500 per month. The respondent filed ejectment petition on 24-9-1990 and sought a direction to the appellant to hand over the vacant possession on the ground of default, damage, nuisance and personal use. The appellant resisted the petition. The Rent Controller accordingly framed. The following issues:--
(1) Whether the ejectment petition is not competent?
(2) Whether the respondent is a defaulter in the payment of rent? OPA
(3) Whether the respondent has demanded the disputed property, if so, to what effect? OPA
(4) Whether the respondent is a source of nuisance to neighbours, if so, to what effect? OPA
(5) Whether the petitioner required the disputed property in good faith for personal use? OPA
(6) Relief.
' The landlady in order to prove her contentions examined Sh. Javaid Iqbal A.W.1, Gulnaz as A.W.2 and she herself appeared as A.W.3 while the appellant examined Saffoo as R.W.1, Atta Ullah as R.W.2 and he himself appeared as R.W.3.
' The Rent Controller after hearing the arguments decided issues Nos.1 and 5 in favour of the respondent-landlady and in view of the finding on issue No, 5 accepted the petition vide order, dated 28th March, 1993. The appellant assailed this order through an appeal before the Appellate Authority. The same came on the file of Mr. Fakhar Hayat, Additional District Judge, who upheld the fmdings of the Rent Controller and dismissed the appeal vide judgment dated 8-1-1994. Hence the present appeal which came up for preliminary hearing on 6-2-1994 and then on 7-2-1994 when it was decided to issue pre-admission notice to the respondent. The respondent has appeared and contested the appeal.
2. The learned counsel in support of the appeal argued that the ejectment petition was not competent on the ground of personal use as the premises were let out for commercial purpose in spite of the fact that a part thereof was occupied by the landlady for her residence. It is added that during the pendency of the appeal before the Appellate Authority the appellant moved an application for amendment of the written statement to take up this legal objection. The same was allowed and it was observed by the Appellate Authority that the controversy is fully covered by issue No, 1 already framed. It is added that no evidence could be legally let, used or read beyond the pleadings of the parties. In this behalf, the learned counsel has referred to Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala (1968 SCMR 804), Pakistan v. Abdul Ghani (PLD 1964 SC 68) and Qabil Shah and others v. Shaday (PLD 1992 Peshawar 144). The arguments are summed up with the submission that the two portions of the property would be treated as separate premises for the purpose of ejectment proceedings under the Rent Restriction Ordinance, 1959. The learned counsel in this behalf has referred to Muhammad Bashir v.
Sultan Mahmood Khan (PLD 1975 Lah. 254), Sajjad All Khan v. Pervez Mirza (PLD 1985 Kar. 667), Gul Afza Khan v. Muhammad Hanif Arif (PLD 1979 Lah. 398), Girdhari Lal v. Marzia Bano (PLD 1963 (W.P.)
Quetta 25) and Manzoor Ahmad v. Muhammad Hanif (PLD 1970 Lah. 391).
3. On the other hand, learned counsel for the respondent has raised a preliminary objection to the effect that no second appeal is competent as the premises in dispute are not commercial premises. In this behalf he has referred to the definition of "non-residential building" as contained in section 2 (d) of the Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance 1959) and clause 8 of the Agreement Exh.P/7 as well as opening part of the examination-in-chief of the appellant. It is added that these composite premises which would be considered as residential as the same are not solely used for commercial purposes. The learned counsel in this behalf has referred to Qurban Khan v. Begum M.M. Sharif 1980 SCMR 590, Muhammad Ramzan v. Abdul Hanan 1985 SCMR 2082(2), Muhammad Amin Beg v. Pir Muhammad Khan PLD 1965 (W.P.) Lahore 385, Rana Khalil-ur-Rehman v. Additional District Judge, Lahore PLD 1983 Lahore 331 and Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi PLD 1983 Lahore 674.
4. 1 have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as the precedent cases. The preliminary objection as well as the arguments in support of the appeal are two facets of the same legal proposition. In plain words, if the arguments addressed on behalf of the appellant are found without merit then the preliminary objection would be upheld. This way, without touching the merits, the preliminary objection cannot be decided. The learned counsel for the parties, appreciating this legal position, submitted that they have no objection to the appeal being treated as Constitutional petition but may be decided. The second appeal is not competent because the premises are residential in terms of section 15(6) of the Ordinance 1959 for the detailed reasons recorded hereinafter.
Therefore, this appeal is treated as Constitutional petition.
5. The admitted position between the parties is that the property in dispute is a part of Bungalow No, 18-A, Gulberg-II, Lahore. The rent agreement is Exh.R/7 and was produced by the petitioner. It is clear from the clause two that the respondent let out to the petitioner the premises consisting of two bed-rooms with attached bath-rooms, one dining/drawing room and lounge with front and side verandas, one porch and one temporary servant quarter. It was also provided that if the lessor desired to have the present kitchen, alternate kitchen will be provided to the lessee on rent of Rs, 2,000 per month which included Rs,1,000 for fitting and fixtures. The other relevant clauses are Nos.
8 and 9, which read as under:- "8. That the lessee will use the premises as his residence, office, warehouse with his signboard outside or inside the said premises.
9. That the lessee will hand over vacant possession of premises to the lessor when no longer required by him and in the condition he has now occupied,"
' Sole controversy for the decision of this petition is whether the premises in dispute were let out solely for the non-residential purpose or not? The nonresidential building has been defined in section 2 (d) of the Ordinance 1959 as under:-- " 'non-residential building' means a building being used solely for the purpose of business or trade;" ' while other premises are treated as 'residential buildings' in view of the definition of 'residential building' as given in section 2 (g), which reads as under:-- " 'residential building' means any building which is not a nonresidential building."
' The only exception is scheduled building as defined in section 2 (h). The learned counsel for the petitioner has referred to para. 4 (b) of the ejectment petition to argue that the property in dispute was rented out to the petitioner for commercial purpose. It is, therefore, argued that the respondent could not have been allowed to lead any evidence against this clear pleading. It is in this behalf that he referred to the judgments in the cases of Abdul Ghani and Qabil Shah and others. The argument has no merit for the following reasons:-- ' Firstly, that it is the petitioner himself who produced the rent agreement as Exh.R/7 and also admitted in his examination-in-chief that the premises were let out to him for the purposes of office, residence and warehouse. The relevant portion reads as under:- {{URDU TEXT}} ' Secondly, the respondent has clearly pleaded in para. 2 of the ejectment petition that the premises were let out to the petitioner as per agreement and there was no change in the terms and conditions except the rate of rent. The petitioner has clearly admitted this assertion in para. 2 of his written-reply.
' Therefore, as per own showing of the petitioner the premises are not covered by the definition of 'non-residential building'.
6., The learned counsel for the respondent rightly referred to the cases of Muhammad Amin Beg, Rana Khalil-ur-Rehman and Syed Amjad Ali Shah. Suffice here to refer to the judgment of Hon'ble Chief Justice, Mian Mahmood Ahmad in the case of Rana Khalil-ur-Rahman which was also followed in the case of Syed Amjad Ali Shah in which it was held that composite building has to be treated as a residential building and consent of the landlord is of no legal consequences. This covers the whole controversy in the present petition. The relevant portion reads as under:- "... ... It is well-settled that a composite building has to be treated as residential building and that even if a portion of such a building has been put to use for non-residential purposes it would not detract from the character of the same remaining residential. This has been held to be so notwithstanding the position that the landlady may have been a consenting party to the use of the premises for nonresidential purpose. The above view has been taken because the conversion of a property from residential to non-residential is violative of the law on the subject, viz. Section 11 of the Ordinance and is against public policy. Refer 1980 SCMR 590, a judgment by a Full Bench of four Judges of the Supreme Court."
' It is further held as under:-- "22. The contrary view has been advanced by the learned counsel for the petitioner on the basis of another Supreme Court judgment reported as 1982 SCMR 8. This authority on closer examination is found to have not much bearing on the facts of the present case and is distinguishable. In the cited case, the main point which fell for consideration was whether a concurrent finding of fact could have been altered by the High Court under section 100 of the Code of Civil Procedure in absence of any special error or defect in the decision of the case upon merits. It had been concurrently held in that case by the Courts below that the lease of the disputed premises was obtained for a hotel and not only that as observed at page 150 of the cited case this finding was also affirmed by the High Court. Now in the case in hand, the learned Additional District Judge in para. 9 of the impugned judgment has categorically held that the demised premises was not let out for commercial purposes."
' Now coming to the case in hand, I find that the rule laid down by the Hon'ble Chief Justice with reference to the judgments of the Supreme Court placed the case in hand on stronger footing as there is--
(i) mention of the premises in the lease agreement as bungalow;
(ii) mention of the use as residential, office and warehouse;
(iii) the production of the agreement by the petitioner as Exh.R/7 and his statement as R.W.
Admitting the three uses;
(iv) the location of the premises in the residential area;
(v) admitted use of the premises for residential prior to the letting out to the petitioner.
' The same rule was held by the Supreme Court in the case of Muhammad Ramzan (supra) where a Baithak of a house was rented out to the tenant, who used it as a shop. However, no permission was obtained either by the landlord or the tenant under section 11 of the Ordinance for using the premises as shop. Therefore, it was held that in the absence of permission the landlord was not debarred in law from seeking eviction of the tenant for personal use. The same rule was upheld by the Supreme Court in the case of Ourban Khan (supra). It was observed that assuming the landlord has acquiesced in the use of the house as hotel even then the contention as regards acquiescence of landlord is of no avail. It was further held that the tenant could not have put the house to commercial purpose without written order of the Rent Controller.
' The upshot of the above discussion is that there is no merit in the argument of the learned counsel for the petitioner that the premises were let out as 'Non-residential'. Therefore, the respondent is debarred from seeking his ejectment on the ground of personal use for residential purpose and simultaneously it is held that the S.A.O. Is not competent because section 15(6) of the Ordinance reads as under:-- "(6) 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.
Since the premises are not non-residential, therefore, the petitioner could not maintain the second appeal. The same is, therefore, being decided as Constitutional petition.
7. The learned counsel for the'respondent vehemently argued that it is a factual controversy and cannot be allowed to be raised in Constitutional petition. I once again refer to the decision of Hon'able Chief Justice in the case of Khalil-ur-Rehman (supra) wherein it was held that Constitutional petition does not merit to be entertained on these grounds.
8. The matter of conversion of a "residential building" into a "nonresidential building" is not a matter between the landlady and tenant. Any such effort would not only be violative of section 11 of the Ordinance, 1959 but also offends the laws, rules, regulations of Municipal Corporation, Municipal Committee and the Authority exercising municipal powers. The Rent Controller has to ensure that there is no violation of law, rules or regulations governing the conversion of premises within the urban area. If looked from this angle the Municipal or other Authority exercising Municipal powers would be a necessary party besides the owners and occupiers of the neighbouring properties. I am fortified in my view by the judgment of my learned brother Irshad Hasan Khan, J., passed in W.P.
4758 of 1990 Begum Rabia Hamoodur Rehman and another v. Lahore Development Authority and another' on 18-7-1990 (1990 ALD 615(2)) that the question whether permission should be granted or refused would be decided with reference to the relevant provisions of the Act and Regulations after providing opportunity of being heard to the affected parties including owners/tenants of the adjoining areas of the disputed residential premises.
' The learned counsel for the parties rendered full assistance for just decision of this petition.
9. The upshot of the above discussion is that I have no hesitation in holding that this petition has no merit. The same is dismissed with Rs,5,000 (Rupees five thousand) as costs which shall be deducted from the amount deposited by the petitioner in the Court of the Rent Controller in pursuance of the order dated 7-2-1994. However, the petitioner is allowed two months' time from today for vacating the premises subject to payment of rent for this period.