IRSHAD HASAN KHAN, C.J.--Petitioner filed an eviction application under section 17 of the Cantonments Rent Restriction Act (hereinafter referred to as the Act) for ejectment of the respondent from the disputed property described as a garage of House No,B-71, Lala Rukh, Wah Cantt.
2. It was stated in the application that the petitioner had constructed his residential house along with a garage and rented out the garage by converting it into a shop in order to pay back the loan obtained from the House Building Finance Corporation. The loan had since been repaid, therefore, he wanted the disputed premises back for his personal use. The application was resisted by the respondent as a result of which the following issues were framed by the learned Rent Controller:--
(1) Whether the suit property is required for personal/bona fide use of the petitioner for residential purpose as a garage?
(2) Whether the residential building has been converted into commercial use without permission of the Rent Controller under section 14 of the Rent Restriction Act, 1963, if so, to what effect?
3. In view of the pleadings of the parties, the issues struck thereon and the evidence on record the learned Rent Controller came to the conclusion that the shop in dispute was in fact a garage and accordingly directed eviction of the respondent on the ground of personal requirement, vide order dated 11-11-1998.
4. On appeal preferred by the respondent the High Court reversed the findings of the learned Rent Controller after reappraisal of the evidence on record, vide judgment dated 4-5-1999. Feeling aggrieved the landlord has filed the present petition for leave to appeal.
5. Mr. Gul Zarin Kiani, learned Advocate Supreme Court for the petitioner, raised the following contentions:--
(1) The shop in dispute is in fact a garage and an integral part of the residential house of the petitioner who admittedly owns a car and his statement on oath has not been shattered and rebutted in defence, therefore, his bona fide requirement of the garage for personal use stands established on record.
(2) The garage was constructed as a part of residential house of the petitioner, therefore, its temporary use for a non-residential purpose cannot change its original status. The building plans showing the premises in dispute as a garage were approved by the Wah Cantonment Board on 23-11-1975 and 19-6-1998 but due to an oversight were not put in evidence before the learned Rent Controller and have been annexed with the petition which may be read in evidence.
(3) The learned Rent Controller had granted ex post facto permission for conversion in terms of section 14 of the Act by allowing the eviction petition and observing that, 'I find force in concluding that by reverting the possession of the garage/shop the earlier irregularity shall be got regularised'.
6. Reliance was placed on Syed Amjad Ali Shah v. Iqbal Ahmed Farooqi and others PLD 1985 SC 242, Raja Qurban Khan v. Begum M.M. Sharif and another 1980 SCMR 590, Ghulam Rasool Shah v. Kamal Khan 1986 SCMR 1605, Shabbir v. Dr. Miss Shahnaz Somjee 1985 CLC 2841,, Mst. Zubaida Sultana v.
Dr. Ikhlaq Ahmed etc.. NLR 1991 Civil 769 and Nasiruddin Khan v. Abdul Majid 1987 CLC 2029.
7. Mr. Manzoor Ahmed Rana, learned Advocate Supreme Court appearing for the respondent, also relied on the case of Shabbir v. Dr. Miss Shahbaz Somjee (supra) to contend that character of a building is not changed unless permission in that behalf is granted by the Rent Controller who can grant the requisite permission, depending upon the facts and circumstances of each case, on an application filed for the purpose. In the instant case neither a formal application was moved by the petitioner nor permission was granted by the Rent Controller. He further submitted that there was nothing on the record to support the assertion that the shop in question was originally constructed as a garage of the petitioner's house. He maintained that the petitioner cannot seek commercial property for residential purposes and in any case the property in dispute is not required by him for personal use in good faith.
8. After giving our anxious consideration to the rival contentions we have arrived at the conclusion that the contentions raised by the learned counsel for the petitioner have a definite edge over the submissions made by the learned counsel for the respondent.
9. The petitioner is a retired Headmaster. He has stated on oath that the shop in dispute was originally the garage of his residential house and was converted into a shop and rented out to the respondent for meeting the loan liability of the House Building Finance Corporation and having cleared the loan he now proposes to restore it to its original status to facilitate safe parking of his car. His statement has indeed not been shattered or effectively rebutted in defence. Rather it is supported by the admissions contained in the statements of the witnesses examined by the respondent that the shop in dispute is a part of the petitioner's residential house and the petitioner owns a car. It would have been more appropriate if the documents annexed with this petition had been made a part of evidence on record but the omission is not fatal and there is no need to advert to the said documents as petitioner's case stands proved in the light of evidence on record and there is nothing on record to suggest that the shop in dispute is not an integral part of his residential house. The petitioner admittedly owns a car and the shop in dispute was originally a garage, therefore, he is well within his right to use it as a garage and as such it cannot be said that the personal need set up by him is not bona fide.
10. The contention that temporary use of a part of a residential house for commercial purpose would not change its essential character as a part of residential building is amply supported by case-law. It was held in the case of Syed Amjad Ali Shah (PLD 1985 SC 242) that the West Pakistan Urban Rent Restriction Ordinance, 1959 never intended that once a landlord commits a mistake of renting out a part of his house for non-residential use for earning some additional income at his own inconvenience, he can never seek its restoration to him by evicting the tenant even if he on account of changed circumstances genuinely requires it for his use as part of residence. In other words, it would be deemed to have become a non-residential building for all times to come and in order to retrieve it he would have to tell a lie that he needs it for non-residential use. Indeed this was not the intention of the relevant law when enacted. In the case of Raja Qurban Khan (1980 SCMR 590) it was held that notwithstanding the change in the use of a residential unit to 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. The rule laid down in that case was followed in the case of Muhammad Ramzan (1985 .SCMR 2082(2)). In the former case a house originally constructed for residential purposes was used as a hotel and in the latter case Baithak of a house rented out by landlord to tenant was used for commercial purposes as a shop. Same view was taken in the case of Ghulam Rasool Shah (1986 SCMR 1605). Another noteworthy case is reported as Nasiruddin Khan v. Abdul Majid 1987 CLC 2029 wherein it was observed that since entire residential building is not being used for non-residential purpose the garage, being used for non- residential purpose, cannot be held to be a non-residential building. Reference may also be made to the case of Shabbir (1985 CLC 2841) wherein it was held that "in order to attract the definition of a non-residential building it must be shown that the building was used solely for the purpose of business or trade. Admittedly the respondent's bungalow is a residential building, not having been solely put to use for the purpose of business or trade. In Suba v. Siraj Din PLD 1977 Lah. 1263 it was held by the Lahore High Court that a building which is of a composite character and is being used partly for other purpose will still remain a residential building. The character of the building was not altered even if a part of the building was put to non-residential use and even if any question of conversion was involved, the tenant cannot have a grievance on that account since section 11 of the Ordinance authorises a Rent Controller to allow such conversion by an order in writing".
11. As regards the conversion related contention based on section 14 of the Act it would be enough to say that failure of the petitioner to move a formal application for the purpose cannot be blown out of proportion in the face of acceptance of his application for eviction of the respondent by the learned Rent Controller with the observations highlighted above. As a matter of fact the contention cannot be raised at all as the shop in dispute being an integral part of the house of the petitioner and essentially a garage is to be treated as a residential building.
12. For the foregoing reasons this petition is converted into appeal and allowed in the terms that the impugned judgment is set aside and the order of the learned Rent Controller is restored. The respondent shall hand over vacant possession of the premises in dispute to the petitioner within a period of three months from today. Parties to bear their own costs.