This is an appeal against an order of Mian Abdul Rahman, Additional District Judge, Lahore, dated 8th May, 1978, maintaining in appeal, as order of eviction of the appellant from House No. 14/N-134 Acres Scheme, Samanabad, Lahore.
2. The said house 'was let out by the respondent to the appellant in the year 1960 on a rent of Rs.
200 per month. The rent of the house was enhanced by the appellant with effect from 1st January, 1965, to a sum of Rs. 250. It was again enhanced to Rs. 285 from ist January, 1970. On 20th January,.
1970, he executed the rent deed Exh. P. 1 in favour of the respondent.
3. The respondent filed an application for ejectment of the appellant on 10th April, 1976, on the ground that he had violated the conditions of the tenancy and converted the house into his Clinic.
There was another ground also that the appellant had materially impaired the value of the property, and its utility by damaging the premises in the process of converting them from the premises of residential character into premises of commercial character.
4. The appellant denied both the allegations and alleged in the written statement that the property in dispute was a scheduled building and the application was not, therefore, competent. He further alleged that the real intention of the respondent was to enhance the rent to a sum or Rs. 1,000 and the application had, therefore, been filed with a mala fide intention. In support of this plea, he referred to the increase in the rent after every five years from Rs. 200 to Rs. 250 and then from Rs.
250 to Rs. 285.
5. The learned Rent Controller framed the following issues ;
(1) Whether the petition is mala fide ? O. P. R.
(2) Whether the respondent has used the premises in violation of the terms and conditions of the rent note, if so its effect ? O. P. A.
(3) Whether the premises have been damaged or its utility is impaired ? O. P. R.
(4) Relief.
The Rent Controller found issues Nos. 1 and 2 against the appellant and issue No. 3 in his favour. In view of the finding on issue No. 1, he ordered the ejectment of the appellant.
6. Only the findings on issues Nos. 1 and 2 were challenged before the learned Additional District Judge who agreed with the finding that it was not believeable that the application was submitted only for pressurising the appellant to pay higher rent. He also held that as was evident from Exh. P. 1, the house was taken on rent by the appellant for residential purposes and as was clear from the evidence of the appellant's own witness, the appellant had shifted his Clinic and Dispensary from Bhati Gate to the premises in dispute in 1974.
7. It was urged before the learned Additional District Judge that the house was taken for the purposes of residence as well as for running a Clinic but this argument was repelled in view of the above finding based on Exh. P. 1 and the evidence of the defendant's own witnesses. Some allegation of acquiescence was raised but this was found against the appellant.
8. It may be stated that though the ease of the respondent was based upon section 15(2) (li) (b) of the West Pakistan Urban Rent Restriction ordinance, 1959, which provides that the Controller may make an order directing the tenant to put the landlord in possession if the tenant has without the written consent of the landlord used the building or rented land for purpose other than for which it was leased the learned Additional District Judge as well as the Rent Controller made some reference to the provisions of section 11 of the Ordinance which bars the conversion of a residential building to a non-residential building without the., permission in writing of the Controller.
9. The learned counsel for the appellant argued that section 1 l of the Ordinance was not applicable since this is not a case of conversion of the building. He referred to Muhammad Amin Beg v. Pir Muhammad Khan (PLD 1965 Lah. 785), Muhammad Ibrahim v. Surraya Sultana (PLD 1966 Lah.
406),. Mst. Akhtar Sultana v. Dr. Abdur Rauf Nagi (PLD 1978 Lah. 347) and Kodumal Kherajmal v.
Seth Dema Mal (PLD 1969 Quetta 21).
10. In Muhammad Amin Beg v. Pir Muhammad Khan it was held that a house let for composite purpose Piz, partly for business and partly for residence is not a non- residential building. In Muhammad lbrahim v. Surraya Sultana it was held that though the conversion of a residential building into a non-residential building without permission of the Rent Controller is punishable under section 13 with a view to safeguard the availability of residential space, but such a conversion without permission has not been made a ground for the dismissal of a petition under section 13. In Mst. Akhear Sultana v. Abdul Rauf Nagi it was held that where structure in building under lease is so materially changed by tenant as to render it beyond recognition though the use of building for the purpose of a clinic may be useful for a practising doctor but its general usefulness is materially impaired and the tenant is liable to eviction on such ground. In Kadumat Kherajmal v. Dema Mal it was held that the nature of the property was not altered merely because though let out as a shop it was converted into a residential room and the same continued to retain its original character notwithstanding its altered user.
11. None of these authorities has any relevance to the question involved in this case. It is true that ultimately the character of the property remains the same for which it was let out if it is converted to some other use. But this plea would not affect the- interpretation of sub-clause (b) of clause (ii) of subsection (2) of section 13. There is not a single case cited by the learned counsel for the interpretation of this provision. On the other hand, the case of Abdul Jabbar v. Umerunnisa (1975 SCMR 435) which was relied upon on behalf of the respondent is an authority under this clause that a person converting the property to another use without written permission of the landlord is' liable to ejectment.
12. However, I agree with the learned counsel to this extent that reference to section 11 except , for .
Seeking assistance, if required, for the Interpretation of clause (b) is not relevant. The effort of the learned Rent: Controller as well as the Additional District Judge has been to interpret the provision in the light of section 11. But I am in agreement that it will not be necessary to go into that question.
13. The learned counsel tried to argue contrary to the finding of fact that the appellant has been using the property in dispute from the very beginning for the purpose of his clinic but this argument is without force. It is established from the evidence produced by him that he had his commercial premises in Bhati Gate from where he shifted his Dispensary only in the year 1974 at the time of Qadiani Movement.
14. The learned counsel made a submission about waiver since the appellant had his board axed at the house from the very beginning showing that he was available in the house for medical advice. Nothing turns on this. It is clear that the appellant being a Medical Practitioner might have only been giving medical advice and also examining some patients at his house but he did not use the house as a clinic or dispensary. This was done only in 1974. Similarly, no evidence could be allowed to be led to prove contrary to Exh. P. 1 that the property was taken on rent for the residential purposes. In fact it was conceded at the Bar that even the first rent deed executed in 1960 was to the same effect.
15. As stated above, it clearly makes out a ground for ejectment of the tenant that he is using the building for purposes other than that for which it was leased and in infringement of the condition of the tenure. The entire property was residential in character but the appellant had converted a part of the premises into a clinic and is using the same for commercial purposes. Fortified with the unauthorised conversion of the premises the appellant took up a plea of an improvement in his status by pleading immunity from ejectment in so far as according to him this building was a scheduled building which is defined as a residential building which is being used inter alia by a doctor, partly for his business and partly for his residence. The building if allowed to be used partly for the purpose of profession would really convert itself into a scheduled building. The case is amply covered by the provisions of clause (b).
16. The learned counsel argued that since only a part of the building has been converted and is being used for a purpose which is non-residential in character, even this clause will not apply. He urged that unless the whole building is used for this purpose the clause would not be applicable. I cannot agree with this submission for two reasons. Firstly, the word 'building' in clause (b) would include a part of the building also and secondly if the entire building had been converted it would have become non-residential building, but if only a part of the building is converted by a doctor for his business, it would amount to changing the building from a residential building to a scheduled building which is the plea taken by him to defend this case. If this conversion was allowed to pass unnoticed and the objection was waived, the appellant would certainly be entitled to use it as scheduled building with all advantages to which the occupants of such a building are entitled. One of the advantages is that the respondent would not be entitled to eject him if he ever requires the premises for residential purpose since a scheduled building can be acquired for personal use only either for running the business of a scheduled building or for use as a non-residential building.
Moreover, the landlord cannot acquire such building for the residence of his female children, as a scheduled building can be acquired only either for own use or for the use of his male children. It is not correct to say that the use of the building for a purpose other than the one for which it was let out was innocuous. In fact, the conduct of the appellant himself has proved that it is not so since he has come out with the plea of its being a scheduled building although it was rented out to him for residential purposes.
17. 1, therefore, dismiss this appeal with costs but allow the appellant 15 days' time to vacate the premises in dispute.