P L D 1969 Quetta 21 (PLP)

This is a second appeal under section 15 of the West Pakistan Urban (Rent Restriction) Ordinance, 1959, against an order dated 22‑4‑67 made by the learned District Judge, Quetta, whereby the order dated 6‑3‑67 passed by the Rent Controller, Sibi, directing the eviction of the appellant from the shop in question has been upheld. The only question raised in this appeal is as to whether the respondent was entitled to the ejectment of the appellant from the shop in question in the face of the provisions of section 13(3) (ii)(b). "This provision is to the following effect:‑ "A landlord may apply to the Controller for order directing the tenant to put the landlord in possession. (ii) In the case of non‑residential building . . . . . if‑

(a) he requires it in good faith for his own use or for the use of any of his male children; (b) he or his child is not occupying in the same urban area in which such building is situated for the purposes of his business any other such building . . . . . suitable for his needs at the time." Learned counsel for the appellant has urged that the learned District Judge having observed that "it has been shown by the appellant that the respondent has got another shop, which is being used as a room" and no evidence having been led by the landlord‑respondent that this other shop was not suitable for his needs at the time, he was not entitled to obtain an order from the Controller for directing the tenant to put the landlord in possession. The argument in other words, is that there was no proof adduced by the landlord‑respondent to establish ‑affirmatively, by his own evidence, that the other shop occupied by him in the same urban area was not suitable for his needs. In the absence of any such affirmative evidence, it is contended, the findings of the Courts below in favour of the landlord respondent stand vitiated.

2. It seems that the case of the landlord‑respondent was that he did not have any other shop in his occupation and because his son, Ramesh Kumar, intended to start dealings in hardware in Sibi, the shop in question was required for his use. Both the Courts below have held that this need was genuine and bona fide. The only question is whether another shop was also in occupation of the landlord at the time? If so, this would give rise to the further question whether the said shop was not suitable for his needs at the time? On this aspect of the case, the learned Courts below have held that the other shop which is in occupation of the respondent‑landlord is a room adjacent to his house which has been used as a baithak and also as a passage for entering the house. The plea of the appellant is that merely because the shop has been converted into a residential room, its real nature is not altered .and the same continues to retain, notwithstanding its altered user, its original character namely, that of a shop and, therefore, the question required determination whether the said shop was or was not suitable for the purposes for which ejectment proceedings were initiated. The argument is indeed novel and does credit to the learned counsel's ingenuity but on full consideration of the matter cannot be accepted.

3. The appellant in his evidence has himself stated that this shop has been used as a baithak for the last ten or eleven years and the respondent has got a way of entering into his house through this shop. In view of this evidence all that can be urged is that this room, which was a shop now stands converted into a residential room. I do not find in the relevant law any bar to the making of such a conversion. Section 11 of the Ordinance lays down that no person shall convert a residential building into a non‑residential building except with the permission in writing of the Controller. The penalty for ‑the contravention of this provision is laid down in section 19 of the Ordinance. However, no restriction has been placed against the conversion of a non‑residential building into a residential building. There being, thus no bar to the conversion of a whop to a residential purpose, the conversion of a room which is attached to a residential building into a baithak or a sitting room cannot, therefore, be objected to nor can it be urged that the said converted room continues to remain a shop and that, therefore, the respondent‑landlord must be held to be occupying another shop, in the same urban area. A shop necessarily connotes a place where business dealings are being ‑carried on. It is an admitted position that this is not the purpose for which this room is being utilised but, on the other hand, that it is in fact being used as a baithak. Consequently the challenge to the finding of the learned Courts below on this ground must fail.

4. It was also contended that the evidence of Bakhtumal (R. W. 1) who had, inter alia, stated that he had approached the landlord‑respondent and was told that if the rent was enhanced, he would not insist on seeking the ejectment of the tenant, was wrongly excluded from consideration on the ground that this statement was inadmissible under section 23 of the Evidence Acton the view that whatever had transpired between the respondent and the witnesses during the pendency of the proceedings is not relevant. Learned counsel for the appellant urges that the learned District Judge erred in law in holding the statement as coming within the mischief of section 23 of the evidence Act. In support of this argument, reliance has been placed on Firm Bulaki Ram‑Amar Nath v. Bhagat Ram etc. (A I R 1926 Lah. 548) and Gangaram Kanhyalal v. Pooran Ghulab etc. (A I R 1954 N B 58).

5. Mirza Muhammad Ahmad, Advocate, for the respondent landlord has, in this connection, drawn my attention to the following statement of law contained in the commentary of Mr. M. Monir on the Evidence Act:‑ "Negotiations for a compromise and statements made in he course of such negotiations are inadmissible under section 23 as such negotiations must be considered to have been conducted under an implied agreement that they would not be given in evidence."

6. It does not appear to be necessary to decide this question because the evidence of Bakhtumal (R. W. 1) that he had been told by Dama Mal respondent that he was prepared to forego ejectment, if the rent was increased, is only hearsay, and not admissible under section 60 of the Evidence Act. It is worthy of note that when Dama Mal appeared as a witness, in rebuttal, he was not confronted with the statement alleged to have been made by him before Bakhtumal (R. W. 1) that Dama Mal (A. W. 4) lei told him that he would be prepared to forego ejectment if the rent was increased, being hearsay, is inadmissible in evidence. Thus taken from any point of view the exclusion, by the learned District Judge of the statement of Bakhtumal (R. W. 1) from consideration cannot be regarded as against law.

6. The result is that this appeal must fail. The tenant appellant, will, however, be granted a period of two months from today for putting the landlord in possession of the shop its question. Parties will bear their own costs. A. E. Appeal dismissed.