1985 PLP 1099 (MLD)

This petition under Article 9 of the Provisional Constitution Order, 1981 calls in question the validity of order, dated 16-2-1.983 of the learned Additional District Judge, Lahore whereby he dismissed petitioner's appeal and maintained his order of ejectment from the disputed property passed by the learned Rent Controller on 15-11-1982 against him.

2. The facts in brief giving rise to this petition are that-respondent No. 3 sought ejectment of the petitioner from the - property in dispute by filing ejectment application, on several grounds, including the ground of his personal need, which is relevant for the disposal of this petition. The petition was contested by the present petitioner. The learned Rent Controller formulated following issues arising out of the pleadings of the parties:- (1) Whether the water charges are included in the monthly rent of Rs.1,350 if so with what effect ? O.P.A.. (2) Whether the premises in dispute are required to the petitioner for his personal use and in good faith ? O.P.A. (3) Whether the petition is not maintainable as the premises are required for residential purposes ? O. P. R . (3A) Whether the premises in dispute were rented out for residential purposes but the respondent has converted it into commercial unit. (3B) Whether the respondent has further sub-Jetted the premises ? O.P.A. (4) Relief The learned Rent Controller vide his order, dated 15-11-1982 decided the aforementioned issues in favour of the contesting respondent and directed petitioner's ejectment from the property in dispute as aforementioned. Being aggrieved against the order of the learned Rent Controller the petitioner preferred appeal which failed on 16-2-1983 before the learned Additional District Judge, Lahore. Hence this petition.

3. Learned counsel for the petitioner did not contest about the bona fide need of the respondent, for the property in question, but vehemently contended that the property in dispute let out to the petitioner was being used for residential-cum-commercial purpose, and could not be got vacated by respondent No. 3 for his personal requirement. It was contended that there was distinction between residential and non-residential building; and a portion of building being used for clinic could not be got vacated under the law for residential purpose.

4. Learned counsel appearing on behalf of respondent No. 3 controverted the contention raised by learned counsel for the petitioner and stated that the property in dispute was a house, let out to the petitioner 'for residential purpose: He converted a portion of the same, to a clinic, without consent of the landlord. It was next submitted that mere use of a portion of residential building for commercial purpose would hot change the character of residential building, and could legally be got vacated for residential purposes.

5. I have considered the contentions raised by learned counsel for the parties and have gone through the documents on the file. In order to prove the personal requirement of the respondent, Masood Ahmad his son appeared as A.W.

3. He stated that he was married and was father of four children. The property in dispute was required bonafidely for his use. Riaz Ahmad respondent himself entered in the witness-box and stated on oath that Masood Ahmad was married and had four children and that the property in dispute was required by the respondent for his son. On the other hand, Muhammad Yusuf Beg and Abdul Latif, who appeared on behalf of the petitioner did not specifically assert that the property in dispute was not required by the respondent 'in good faith for the use of his son. Even Muhammad Sharif said nothing about the personal requirement of the respondent. He showed his ignorance about the requirement of the respondent. The petitioner himself did not say anything about the personal need of the respondent but alleged that the ejectment petition was filed malafidely to enhance the rent of the premises. The evidence on the record clearly established that the property in dispute was required in good faith by the respondent for his personal use and occupation. Now the only question which falls for determination is, as to whether, a building being used for residential-cum-commercial purposes can be got vacated for residential purpose. It is significant to note that the petitioner in memorandum o& appeal, before the learned lower appellate Court, in ground (d) himself described the premises in question twice as "house in dispute". It is, therefore, not possible for him to assert at this stage; that the property in dispute was not a house. There is no written agreement of tenancy or rent note about the terms and conditions of tenancy but the admitted position is that the building let out to the petitioner is being used by him for residential-cum-commercial purposes. Admittedly, it being a composite building has to be treated an residential building because merely by using a portion of it as non-residential unit would not alter its character of being residential building. In Qurban Khan v. Begum M.M. Sharif and another 1980 SCMR 590 even the acquiescenece of the landlord for the conversion of the residential building to a commercial building was not considered sufficient character of residential building. In the instant case the conversion of a portion of the building to a non-residential unit by the petitioner without the permission of the respondent was rightly held by the learned Rent Controller as well as the Additional District Judge to be no bar for seeking eviction of the petitioner from the entire building for residential purpose.

7. For, the foregoing reasons I find no merit in this petition and dismiss the same with costs. H.B.T. Petition dismissed.