1984CLC 161 (PLP)

‑‑Ss. 11 & 19‑Premises in dispute established to be residential‑

Change in character of such premises without written consent of Rent Controller--Held, to be of no avail. Raja Qurban Khan v. Begum M. M. Sharif and another 1980 S C M R 590 and Muhammad Saleem and others v. Begum Mussarat. Bashirul Hassan and another P L D 1981 S C 578 ref. ‑‑Ss. 13 & 15‑Ejectment ground of bona fide requirement of land lady and her children‑Evidence adduced with regard to bona fide requirement of landlady not challenged by tenant‑Finding of Rent Controller that landlady needed premises in dispute bona fide for her personal requirement based on evidence on record‑Appellate Court finding in negative‑Held, not sustainable. ‑‑S. 13(2) (iii) ‑ Ejectment on ground of impairment of pre mises‑‑Evidence on record that lawn of residential building converted into a room and other alterations considered proper for maternity home or clinic made therein‑‑Held, sufficient to indicate that addi tions and alterations had impaired value and utility of premises. Mst. Akhtar Sultana v. Dr. Abdur Rauf Naqi P L D 1978 Lah. 347 ref.' This is an appeal under section 15(4) of the Sind Urban Rent Restric tion Ordinance, 1959 (hereinafter referred to as the Ordinance) read with section 100 of the Civil Procedure Code, challenging the judgment dated 17‑1‑1979 in Rent Appeal No. 798 of 1975, of the Additional District Judge, Karachi, setting aside the order, dated 15‑12‑1975 of the XXII Civil Judge and Controller in Rent Case No. 2052 of 1975 whereby the respon dent was directed to hand over vacant possession of the premises to the appellant after one month of the passing of the said Order.

1. The appellant who is owner and landlady of building No. C/44, Block No: 17, Federal B' Area, Karachi had leased out the same to the respondent on a monthly rent of Rs.

600. The appellant's husband who was employed at Lahore retired from the employment on 31‑1‑1975 and since the family of the appellant belonged to Karachi, she alongwith her husband and children came down to Karachi and requested the respondent to vacate the premises. The respondent refused to do so and as the appellant had no other accommodation of her own and required the premises for her use and that of her children, she filed an application under section 13 of the Ordinance for ejectment of the respondent on the aforesaid ground and also the ground that the respondent had materially impaired the value and utility of the premises by making additions and alterations therein. Such application was filed by the appellant on 5th day of July, 1975 in the Court of XXII Civil Judge IInd Class and Controller, Karachi.

2. The respondent filed written statement admitting the tenancy at the rent of Rs. 600 per month and further stated that she was not residing in the premises in dispute but as specifically stated in the agreement of tenancy she had rented out the premises for purposes of running a maternity home and clinic. The respondent further pleaded that the premises being non, residential accommodation, having been converted into commercial pre mises under the aforesaid agreement, the appellant could not claim the same for residential accommodation. With regard to impairing the value and utility of the property, the respondent denied the allegation stating that the appellant was fully aware of the use of the premises and certain changes which had been carried out by her were with the permission of the repre sentative of the appellant. She had, further taken the ground that she being a medical practitioner doing business in the demised premises where treatment was given to almost 3,000 indoor and outdoor patients per month, she was not in a position to shift' her clinic and dispensary from the premises. (1) Whether the applicant requir4,d the premises in question for use of herself and her children bona fide and in good faith ? (2) Whether the opponent had committed such acts which had impaired materially the value and utility of the premises in question 7 (3 ) Whether the premises in question were let out to the opponent for commercial purposes ? (4) What should the decree be ?

4. On behalf of the appellant, Shaikh Amir, her brother and attorney and Abdullah Gulab Shaikh, her husband gave evidence. The respondent herself gave evidence in support of her case. The learned Controller gave findings with regard to issues Nos. 1 and 2 in favour of the appellant holding that she required the demised premises in good faith for her own use and that of her children. With regard to issue No. 2, the learned Controller observed that since the respondent had converted the lawn into rooms and had opened one door and two windows in the same and further since she had also constructed two rooms one on the pargola and the other on the roof, the aforesaid constructions had materially impaired the value and utility of the property in question and had weakened the building. It was further observed that the respondent had filed to prove that she had made aforesaid constructions with permission of the landlady, her attorney or any other authority.

5. With regard to issue No. 3, it was the finding of the learned Cont roller that the premises were being used as maternity home and clinic under the agreement of lease and were being used for the aforesaid purpose. In view of the findings, the learned Controller ordered ejectment, of the res pondent and directed her to handover vacant possession of te premises to` the appellant after one month of the passing of the order.

6. Against the decision of the Rent Controller, the respondent filed first appeal (Rent Appeal No. 798/75) which was incidentally heard and decided by IInd Additional Sessions Judge, Karachi. In this judgment, dated 17th January, 1979, the learned Additional District Judge, Karachi set aside the order of the Rent Controller holding that as the premises were let out to the tenant for commercial purposes the same were no longer residential and, therefore, the requirement of the same by the landlady for residential pur poses was not reasonable or in good faith. He, therefore, held the tenant could not be ejected from the same. The learned Additional District Judge further held that the additions and alterations were carried out with the permission of the landlady. He, therefore, set aside the order of the Rent Controller and dismissed application for ejectment.

7. In the instant second appeal, it is contended by Mr. Hassan A. Shaikh, the learned counsel for the appellant that the decision of the first Appellate Court is not based an the evidence on record and as no proper reasons have been given for arriving at the findings, the first Appellate Court's order is not a speaking order. It is contended by him that initially the premises were residential and there is no evidence on record to show that the same had been converted into commercial premises by any compe tent authority: With regard to the finding that the additions and altera tions in the premises were made with permission of the landlady, the learned counsel has argued that the same is not based on the evidence on record and is due to misreading and non‑appreciation of the same.

8. A persual of the pleadings shows that there is no doubt about the fact that the premises initially were residential. This is clear even from the perusal of para. 5 of the written statement wherein it was inter alia stated that the demised premises having been taken on rent for the purpose of running a maternity home and clinic, no longer remained residential and were converted into commercial premises. Once it is estab lished that the premises in questions were residential the change in charac ter of the same even with the acquiescence of the landlord can be of no avail without written consent of the Rent Controller. This is apparent from the persual of sections 11 and 19 of the Ordinance.

9. In Raja Qurban Khan v. Begum M. M. Sharif and another (1980 S C M R 590), (decision of the Supreme Court) it was observed as under :‑‑‑ "It seems to us that by enacting section 11 of the Ordinance in the form in which it appears, the Legislature had in view a public policy based on considerations of securing the peace and welfare of the citizens. It is hardly necessary to labour on the point to show that by the conversion of a residential building into a non residential building, i.e. to say for the purpose of trade of commerce, the problem of the acute shortage of houses in this country would be not only further compounded but the same inevitably would lead to disturbing the peace of the citizens resid ing in residential localities. The fact that this is what the Legis lature had really intended to achieve is proved by the absence of any corresponding provision in the Rent Ordinance prohibiting the conversion of a non‑residential building into a residential building, as also that any person found to have contravened the provisions of section 11 is liable to be tried under section 19 of the Ordinance and in the event of being found guilty he can be sentenced to a fine which may extend to one thousand rupees."

10. In Muhammad Saleem and others v. Begum Musarrat Bashirul Hassan and another (P L D 1981 S C 578) (a decision of the Supreme Court) reference .was made to the decision reported in 1980 S C M R 590 mention ed above and it was further held that despite permission or acquiescence of landlady, tenant could not have put bungalow to commercial use without getting sanction of Rent Controller under section 11 of the Ordinance.

11. In view of the legal position discussed above, the finding of the learned first Appellate Court that there had been conversion of residential premises into commercial premises cannot be sustained on the evidence on record which does not show that consent of the Rent Controller concerned had been taken for such conversion. On merits the learned Controller dis cussed the evidence on record, of the attorney of the appellate and her husband Abdullah Gulab in support of her assertion that she and her children needed the premises bona fide as she had no other premises owned by her. There was evidence on record about her three children living with her and requiring accommodation. There is also evidence on record that previously the appellant, with her children was residing with her husband at Lahore and due to his retirement her husband had come down to Karachi. There is evidence on record that he, has been employed at Karachi and the family is now permanently settled at Karachi. There was the further assertion by the appellant that she had no other accommodation owned by her and that she was staying alongwith her family with her brother who had temporarily accommodated her. As observed by the learned Controller the evidence adduced with regard to the bona fide require ment of the appellant and her children has not been challenged by the res pondent. It was, therefore, his finding that the oral as well as documentary evidence which had come on record, amply proved that the appellant re quired the premises in good faith for the bona fide use of herself and her children. The learned Additional District Judge in his judgment merely referred to the contention that the premises being commercial, personal requirement of the appellant for her residential purposes could not be con sidered reasonable or in good faith. The learned first Appellate Court did not discuss the evidence on record with regard to the ground of personal requirement and did not at all discuss the reasons given by the learned Controller for giving a finding in favour of the appellant. For the reasons given, therefore, the appellate finding in the negative, of the issue of bona fide personal requirement of the landlady cannot be sustained and it is further observed that on the other hand the finding of the same issue by the learned Controller which is based on the evidence on record is in all res pects legal and proper.

12. With regard to the material impairment of utility of the building, in Mst. Akhtar Sultana v. Dr. Abdur Rauf Nagi (P L D 1978 Lah. 347) (a decision of the Lahore High Court) it was inter alia observed as under : ‑‑ "The word `utility' has been used in clause (iii) of subsection (2) of section 12 in its general sense for usefulness and profitableness. Although the present use of the building for the purpose of a clinic might be very useful for a particular tenant who is a practising doctor, its general usefulness, i.e. utility for all others including owners has been materially impaired. This supposition find support in this case from the fact that m the proposed reconstruction plan, almost all structures constructed by the respondent are intended io be entirely removed by the owner. The learned lower Appellate Court and the learned Rent Controller did not pay any attention to the composite site plan providing comparative study nor the admitted facts with regard to the changes effected by the doctor. They have not only misread the evidence in this behalf but have also ignored material parts thereof. I, therefore, reverse the finding on Issue No. 3 and hold that the respondent has materially impaired the utility of the building and is thus liable to be evicted on this ground alone." In the instant case there is evidence on record that the lawn was converted into a room, and other alterations admittedly made even if considered proper for maternity home or a clinic would not be generally considered useful in residential premises. The evidence on record, therefore, as held by the Rent Controller was sufficient to indicate that the additions and alterations had impaired the value and utility of the premises.

13. In the circumstances stated above the appeal is allowed and the judgment of the first Appellate Court on findings for which no proper reasons had been given by reference to the evidence on record, is set aside with the result that the order of the Rent Controller, dated 5th December, 1975 shall hold the filed. The respondent is allowed one month's time for vacating the premises in question. . Under the circumstances, however, no orders are being passed with regard to payment of costs. S. Q. Appeal allowed.