1998 PLP 480 (MLD)

This second appeal under section 15 of Urban Rent Restriction Ordinance, 1959 is directed against the judgment dated 14-2-1995 passed by the learned Additional District Judge, Lahore whereby the first appeal of the respondent was accepted and the order dated 13-2-1994 passed by learned Rent Controller Lahore, was reversed resultantly, the appellant herein was ordered to be evicted from the shop is dispute.

2. The relevant facts for the disposal of the present appeal are that the respondent filed an ejectment application against the appellant thereby seeking to evict him from a shop comprised in market known as 'Chistia Market' on the ground of personal need. The appellant having admitted the tenancy as also the rate of rent proceeded to contest the ejectment application on the ground that the respondent is running well established business within the precincts of the market aforementioned and having already evicted various tenants from the shops comprised in the market, the alleged plea of personal need is neither bona fide nor made in good faith. It was specifically alleged that the premises are not residential in nature and the same could not be claimed for residential purposes.

3. The learned Rent Controller reflected the controversy between the parties in the following issues:-- (1) Whether the ejectment petition is filed with mala fide intention? OPR. (2) Whether the petitioner requires the disputed premises bona fide and in good faith for his personal use and occupation? OPA. (3) Relief.

4. The respondent being the landlord appeared as his own witness as A.W.1 and remained contented therewith. The documentary evidence produced by the respondent consists of site plan only which was received on the record as Exh. A

1. The appellant on the other hand produced one witness and appeared himself as R.W.2. No documentary evidence was produced by him.

5. The learned Rent Controller having appraised the evidence on the record as also discussed the same came to the conclusion that the shop in dispute being non-residential building could not be got vacated for residential purposes. Consequent upon, the findings noted above, the ejectment application was dismissed by the learned Rent Controller vide his order dated 13-2-1994.

6. The respondent successfully appealed against the abovesaid order as the learned Additional District Judge proceeded to accept the same vide his order dated 14-2-1995 mainly on the ground that the building comprising the shop in dispute being composite building, the respondent/landlord could get the same vacated for residential purposes also. The said order has been assailed in the present second appeal.

7. It is mainly contended by the learned counsel for the appellant that the learned lower appellate Court fell in error to accept the ejectment application on the ground that the shop in dispute being part of a composite building could be got vacated for residential purposes also. It was submitted that a part of the building has been treated as building and it is the user for which it was let-out which would determine the character thereof. Reliance in this regard was placed on. Raja Qurban Khan v. Begum M.M. Sharif (1980 SCMR 590), Gul Afzal Khan v. Muhammad Hanif Arif (PLD 1979 Lahore 398), Muhammad Aqeel v Khair-un-Nisa (1984 CLC 2912) and T.V. Service Station v. Parveen Afridi (1984 CLC 693). It was then submitted that a reference to para 2 of the petition would show that the respondent while claiming the shop in dispute for his use and occupation has not mentioned therein that the same is required either for residential or for non-residential purpose, therefore, it could be easily inferred therefrom that the shop in dispute was required for non-residential purpose and the evidence led to the contrary cannot be looked into nor can be relied for any good purpose. It is added that the respondent while in witness box for the first time stated that he required the shop in dispute for residential purpose and in his exuberance to obtain the eviction of the appellant, he went to the extent of denying the suggestion that the premises in dispute is a shop although this fact was admitted by him on further cross-examination. Learned counsel for the appellant, in this regard, relied on a specific part of statement of the respondent whereby he had admitted that the shop in dispute is surrounded by other shops wherein various press have been installed, meaning thereby that not only that the premises in dispute are non-residential in nature but also the surroundings thereof are non-residential. Learned counsel for the appellant summed up his arguments with the note that the property in dispute being non-residential, the same could not be got vacated for residential purpose and this aspect of the matter has not been properly adverted to by the learned appellate Court while reversing the well reasoned judgment of the learned Rent Controller. Learned counsel for the respondent on the other hand maintained that in another ejectment application filed by the present respondent against another tenant of the same building, there is some evidence available to show that the lower portion of the building comprising the shop in dispute is commercial while the other portion thereof is residential. He continued to argue that the evidence recorded in that case would manifestly establish that the building comprising the shop in dispute is composite in nature as it contains non-residential and residential quarters. It is also submitted that the matter in the case referred to above was taken to this Court in a Constitutional petition filed by the tenant which was disposed of by way of compromise and that a learned Additional District Judge had in fact relied on the evidence recorded in the case noted above to return a finding in favour of the respondent. The evidence recorded in the said case being not available on the record, the respondent has already filed an application under section 15(7) of the Urban Rent Restriction Ordinance, 1959 to produce the same alongwith two other documents i.e. declaration of the press and statement of the tenant who had delivered possession to the landlord by way of compromise. The copies of the said documents are sought to be produced as additional evidence on the ground that these are being produced in answer to the case set up by the appellant and being certified copies are admissible as there is no apprehension of the same being forged or fictitious. In answer to the plea that the respondent had not pleaded that the premises in dispute were required for residential purpose and that the evidence led in that regard is liable to be ignored, it was maintained that as per the provisions of section 13 of the Ordinance ibid, the landlord was simply required to plead that he needed the premises for his own use and occupation and was not obliged to specifically disclose the purpose for which it was required, therefore, no exception could be taken thereto. It was then added that only not that the respondent/landlord produced evidence to show that the premises in dispute were required for residential purpose but also the appellant produced evidence in rebuttal, therefore, no grouse could be made that the abovesaid facts was not specifically pleaded. Learned counsel concluded his arguments with the note that the respondent being the landlord is entitled to seek eviction of the appellant for the reason that he would not be able to use and utilize his residential quarter unless the appellant is evicted from the shop in dispute as according to him, he needs the same so as to convert it into a stair hall for the purpose of making approach to the residential portion. Reliance has been placed on A.D.B.P. v. Sher Muhammad (1984 CLC 1996), Rana Khalil-ur-Rehman v. The Additional District Judge, Lahore and 2 others (PLD 1983 Lahore 331).

8. The primary question which falls for determination is as to what was the character of the premises in dispute when it was let out to the respondent; the nature of the user to which it was put as also the character that it had at the time when the ejectment application was filed and the allied question as to whether part of a building is to be treated as a building in itself for the purpose of determining an application for ejectment on the ground of personal need. The answer to these questions may be found from the facts brought on the record as also the law applicable thereto. It is an admitted position of fact on the record that the premises in dispute were let out as a shop which retained that character till such time that the ejectment application was filed and even today and not only that the premises in dispute had retained the same character but also the fact that the surrounding premises were also non-residential in nature. Learned counsel for the appellant went lengths ahead to refer to a document sought to be produced in additional evidence i.e. the copy of the assessment issued by the Excise and Taxation Department wherein the total premises comprised in the market aforenoted has been described as non-residential in nature. The question as to whether a part of a building is to be treated as a building in itself fell for interpretation in various judgments of this Court and the other Courts of records and in some it was interpreted in the background of buildings predominently used for residential purpose, composite buildings and buildings used for non-residential purpose. In the first mentioned category, it was held that the building would retain its residential character and its partial user for non-residential purpose would not change its character and the premises could be sought to be vacated for residential purpose. The ratio in the judgments of T.V. Service Station, Raja Qurban Khan and Gul Afzal Khan noted supra is to the same effect. As for the composite building, the same principle-has been applied and the ratio of the judgments in the cases of Rana Khalil-ur-Rehman and A.D.B.P. are also to the same effect. However, the cases of third category i.e. when the premises has been let out for commercial purpose and have been used as such, the shop or the premises let out for commercial purposes were treated as distinct and independent unit with the result that it was held that the same could not be got vacated for residential purpose. Reference may be made to Jamil Ahmad v. Mst. Sultana Jehan Begum (PLD 1974 Karachi 319), Muhammad Aqeel v. Kahir-un-Nisa (1984 CLC 2912) and Ulfat Hameed v. Barjees Khatoon (PLD 1982 Karachi 823). The three categories of cases noted supra deal with three distinct kinds of buildings having special features of their own.

9. The facts remains as to what category would be applicable in the facts and circumstances of the present case. It is a matter of record that the respondent, while appearing as his own witness, stated in unequivocal terms that the premises were let out for non-residential purposes. Needless to add that even otherwise there is enough evidence available on the record to show that not only the premises in dispute were let out for non-residential purposes but also the surrounding shops were let out for the same purpose and are being used as such. In the circumstances, there is no escape from the conclusion that the premises in dispute are non-residential buildings; were let out for the same purpose and are being used as' such till date. This brings me to the ancillary question as to whether a non-residential premises could be got vacated for residential purposes. In the first instance, it would be noted that no such ground was made out by the respondent and it was not explicitly pleaded in the ejectment application itself. The omission in this regard was sought to be explained by the learned counsel for the respondent by maintaining that he was only required to plead that the premises are needed by the appellant for his own use and occupation, therefore, he should not be penalized for not giving details thereof. I am afraid, the explanation is not well founded. A bare perusal of the Ordinance would show that the legislature in its wisdom has provided two different and distinct clauses for seeking eviction from the residential and non-residential premises meaning thereby that the two clauses aforenoted has distinct features of their own, therefore, the landlord is required to plead as to under what clause he would be seeking eviction of the tenant on the ground of personal need. The unescapable conclusion would be that the landlord shall have to plead the nature of the B building and the purpose for which he seeks to evict the tenant i.e. he shall have to disclose as to whether the premises in dispute are required by him for residential purposes or non-residential purposes. This having not been done in the instant case, the pleadings can well be termed as vague and the evidence led to prove that the non-residential building is required for residential purpose could neither be looked into nor relied. Even otherwise, the premises in dispute as also the surrounding premises having been let out for non-residential purposes and used as such, the same are to be treated as distinct unit and, therefore, it could not be got vacated for residential purposes. I am fortified in this view by the judgments rendered in the cases of Jamil Ahmad, Muhammad Aqeel and Ulfat Hameed noted supra. The present case is definitely one of exception and falls within the third categories noted above, therefore, the respondent's plea that the building comprising the shop in dispute being a composite building, the non-residential premises therein could be got vacated for residential purposes cannot be countenanced. This special feature of the case was taken into consideration by the learned Rent Controller while proceeding to dismiss the ejectment application but the learned lower appellate Court did not advert to the same keeping in view the law applicable thereto with the result that he proceeded to reverse the findings of the learned Rent Controller without any lawful basis, therefore, the findings recorded by the learned lower appellate Court cannot be sustained.

10. Coming to the question of production of additional evidence, it would be noted that the respondent having placed on record copies of the evidence recorded in some other case sought permission to produce the same in this case for the purpose of returning a finding in his favour on the question that the building comprising the shop in dispute was a composite building. It would suffice to say that it has never been the rule to consider the evidence recorded in another case so as to return a finding based thereon. The plea that the same was considered by another learned Additional District Judge to return a finding in favour of the respondent in some other case can be repelled on the basis that such a practice is not permissible in law. As for the copy of assessment, I have already observed that the same does not advance the stand point of the learned counsel for the respondent rather on the contrary, it supports the plea of appellant inasmuch as it is established from the reading thereof that the total premises comprised in the ground floor of the building are being used for non residential purpose. In the circumstances, while the copies of the evidence recorded in another case cannot be received in evidence in this case, the other documents does not advance the case of the respondent, therefore, even if the said document is allowed to be produced, it would not be of any help to decide the controversy between the parties.

11. For the reasons stated above, this appeal is allowed. The judgment of the learned Additional District Judge dated 12-4-1995 is hereby set aside and that of the learned Rent Controller dated 13-2-1994 is sustained, resultantly, the ejectment application filed by the respondent shall stand dismissed. There shall, however, be no order as to costs. A.A./F-43/L Appeal accepted.