' The dispute relates to property bearing No, P-168, situated in Mohallah Ghulem Bari Pura, Dhobighat, Lyallpur.
2. The ejectment application filed by the respondent has been resisted by the appellant, inter alia, on the ground that the premises in question were not required in good faith by the landlord and no notice under section 13-A of the Rent Restriction Ordinance was ever served upon him. It has also been averred in his written statement that the premises are used by him for commercial purpose, and that being the position the same cannot be got vacated for residential purposes. All the issues framed by the learned Controller were found against the appellant by him. His decision in this behalf has been confirmed by the learned lower appellate Court in first appeal filed by the appellant. It has also been held that since the appellant has failed to establish that the premises in question were not leased out to him initially for residential purposes, therefore, the same cannot be treated to be non-residential in spite of the fact that the appellant is using the same as godown when he is keeping 'bran' in good quantity.
3. The only question which has been raised by the learned counsel for the appellant before this Court is that since the premises are used for commercial purposes and being non-residential in character as defined in section 2 (d) of the Ordinance the same cannot be got vacated for residential purposes as desired by the respondent landlord. Non-resinential building has been defined by the said provision of law as a building being used solely for the purpose of business or trade while residential building means any building which is not a non-residential. The learned counsel for the appellant has argued, while relying upon Muhammad Bashir v. Sultan Mahmood Khan (1) and Jamil Ahmad v. Mst. Sultana Jahan Begum (2) that the premises being non- residential, being used for business and commercial purposes, cannot be got vacated for residential purposes.
4. I am afraid, the authorities cited above do not help him as the facts of the said cases are different from the present one. In both the said cases the property involved is admittedly shops which were let out as such while in the present case it has been admitted by the appellant while appearing as R. W. 4 that ho has been using the premises for commercial purpose for the last 10/12 years. He has further admitted that he never got permission of the learned Controller for changing the character of the property from residential to non-residential, as required by section 11 of the Ordinance, which lays down that no person shall convert a residential building into a non- residential building except with the permission in writing of the Controller. The appellant has admitted in implied terms that initially ho got the property in question on lease as a house and not for using it for business purposes. The learned counsel for the respondent has argued that even otherwise the property in question cannot be treated as non-residential because according to the appellant himself he is using the same as a store and he actually does not run business or trade therein. I am afraid, this contention has no force. It is admitted on record that at the time when the ejectment apPli cation was filed the premises were used as a store for keeping 'basin' by the appellant, who deals in the same. There is no doubt that he does not sell the said commodity at the premises in question but it cannot be denied that ho uses the same for trade purposes as the same commodity is being sold by him to his customers.
5. However, the main question which arises for determination is as to what is the effect of not getting the permission from the Controller for changing the character of the property from residential to non-residential. As discussed above, it has not been denied before me, as also observed by the learned Controller in his impugned order, that the property in question was initially got on lease as a house for residential purposes and not for using it for commercial purposes. It is also admitted on record that no permission, whatsoever, was obtained before converting it into a non-residential building. When the statutory provision as referred to above lays down that a residential building cannot be changed into a non-residential building without the permission in writing of the Controller, it means that irrespective of any change having been effected therein by the landlord or tenant the same would continue to be residential in character as it used to be before its conversion. This view gains strength from Muhammad Amin Baig v. Fir Muhammad Khan (3), Kaudu Mall, Khairaj Mall v. Seth Dhlma Mall (4) and Mst. Aziz Begum v. Guarantee Life Insurance Company (5).
(1) PLD 1975 Lab. 254 (2) PLD 1974 Kar. 319
(3) PLD 1965 Lab. 385 (4) PLD 1969 Quetta 25
(5) PLD 1975 Lab. 324
6. In 1965 Lahore the property in question was let out for a composite purpose, namely business and residence. It was held that it would fall under the latter definition and under section 13 (3) (a) of the Ordinance the respondent before the High Court could apply to the Controller for the eviction of the appellant from the entire building. The initial purpose for which it was let out was kept in view by the High Court and for that reason the property was treated to be residential and not otherwise.
' In 1969 Quetta the question was : as to whether a non-residential building could be converted into a residential without the permission of the Controller? And what was the effect thereof? It was held that no restriction had been placed against the conversion of a non-residential building into a residential building and thus there being no bar to the conversion of a shop to a residential purpose, the conversion of a room, which was attached to a residential building, into a baithak or sitting room could not, therefore, he objected to nor could it be urged that the said converted room continued to be a shop and that, therefore, the landlord must be held to be occupying another shop in the same urban area. In PLD 1975 Lahore the premises in question were pre-dominently non-residential and it was held that that being the position the same could be put to commercial use without the permission of the Rent Controller under section 11 of the Rent Restriction Ordinance, for no permission was required from the Controller for changing its character.
7. There is no clear authority on the point as to what would be the effect for not obtaining any permission from the Controller in writing, as required by law for changing the character of a residential building. I am of the view that in the presence of the mandatory provision the character of a residential property would continue to be as such irrespective of the fact that it has been converted into non-residential, if no permission has been got from the Controller; otherwise the purpose of the provision would be defeated. If a person has got a house on lease from the landlord for residential purposes and thereafter has started using the same for commercial purposes without the permission of the Controller the same would continue to be treated as a house i,e,, residential building.
8. It has been argued by the learned eounsel for the appellant, while relying upon the definition of 'non-residential building' as given in section 2 (d) of the Ordinance, that use of the building at the time of institution of the ejectment application has to be taken into consideration.
' Non-residential building has been defined a building being used solely for the purpose of business or trade. I am afraid, this provision of law cannot be read in isolation of section 11 of the Ordinance, otherwise the said mandatory provision only becomes redundant. Furthermore, the provision as contained in section 13 (2) (b) of the Ordinance also sup oorts the view taken above. The said provision lays down that if a tenant has used a building or rented land for a purpose other than for which it was leased out then he would be liable to be ejected ; meaning thereby that the same character of the building will be taken into consideration which it was holding at the time of being leased out unless its conversion was permitted by the Controller in writing.
9. As a result of the above discussion the appeal having no force is hereby dismissed without any order as to costs. The appellant would vacate the premises within a period of one month from today, as requested by him.