1985 PLP 2082(2) (SCMR)

The Rent Controller on the basis of the evidence recorded in the case held that the demised premises constitute Baitak of appellant's house, and since, in his view, "Baitaks adjacent or in front of the houses are commonly rented for business purpose where the landlord needs some financial aid, so in such case, I do not find premises become non‑residential and not to be converted later into the residential purposes. In the instant case, the premises in question is not separately assessed as shop so it cannot specifically be said that it is a shop" For these reasons and the finding separately recorded by him that app pant's requirement for extra accommodation was genuine, he directed respondent's eviction, by the order dated 30th April, 1983. On appeal at respondent's instance, a learned Judge of Baluchistan High Court, however, took the view that since "the room in question is not being used as a residential building, but as the appellant (respondent herein) is doing business in the disputed premises, therefore, it is a non‑residential building," and, "therefore it is clear that a non‑residential building cannot be got vacated by the landlord for residential purposes." For these reasons, learned Judge in the High Court allowed the appeal, and sale aside the order of the Rent Controller. This Court granted leave to appeal to appellant from the judgment of the High Court by the order dated 29th April, 1989 in order to examine the submission made by learned counsel appearing for him that the demised premises constitute Baithak which is essentially a part of the residential house in occupation of the appellant, and since the Baithak, by the very nature of its construction, is a part of the residential house, the mere fact that the tenant uses it for commercial purpose would not disentitle the landlord from seeking his eviction once it is proved that he bona fide requires the premises for residential purpose. After having gone through the record of the case, we find that it is an admitted, position that the demised premises constitute Baithak, which essentially is a part of appellant's residential house. There is also no doubt as to appellant's requirement for extra accommodation for residential purpose for himself and the member of his family. It is also proved in evidence that Baithak is being used by respondent for carrying on business of selling earthen post for the last six or seven years, perhaps ever since it was rented out to him. It cannot however be said with certainty that appellant had rented out the Baithak to respondent for a commercial purpose; indeed, however, he was fully aware that respondent was using the premises for commercial purpose as it is not shown that he had ever raised objection to it. On these facts, the question arises whether appellant having otherwise proved that he bona fide requires residential accommodation for his personal use, is disentitled from seeking respondent's eviction from the Baithak, which is a part and parcel of his house, for the reason that it is being used by the respondent for a commercial purpose with his tacit consent. This question has already been decided by this Court in Qurban Khan v. Begum M.M. Sharif, 1980 S C M R

590. In that case, the demised premises, a house in Murree, were let out to the tenant who used it as a hotel. A question arose whether the use of residential house for commercial purpose, either with the permission of landlord or his tacit consent or acquiescence would bar tenant's eviction even though it is proved that landlord bona fide required the house for his personal residence. It was held that, despite the permission or acquiescence of the landlord, the tenant could not have put the house to commercial use without obtaining sanction of the Rent Controller under section 11 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Sections 11 and 19 of the Ordinance read as under:‑ "

11. No person shall convert a residential building into a non residential building, except with the permission in writing of the Controller; and 19.(1) If any person contravenes any of the provisions of subsection (1) of section 10, section 11 or section 18 he shall be punished with fine which may extend to one thousand rupees." In this behalf G. Safdar J. who delivered the judgment for the Court 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 or 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 residing in residential localities. The fact that this is what the Legislature 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 (ibid) 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. We are, therefore, in agreement with the concurrent view taken by the two Courts below, as well as the High Court, that in the absence of any permission having been obtained from the Controller under section 11 of the Ordinance, in this case, the suit house would continue to retain its character as a house notwithstanding the fact that it was actually being used as an hotel. After all if the peremptory mandate of section 11 of the Ordinance is found to have been violated by a landlord or tenant, with the result that a residential building is put to commercial use, how can the Controller be expected to take notice of the said change except for the purpose of section 19 of the Ordinance to proceed against a person for having contravened the provision of section 11 thereof." Since in the present case no permission was obtained either by the landlord or the tenant under section 11 of the Ordinance for use of the Baithak for a commercial purpose, and admittedly the Baithak by its very nature of construction is a part of the residential house, its use for a commercial purpose, even with the consent of the landlord, would not change its essential character as a part of residential house into a non‑residential building or premises, and in the absence of the permission of the Rent Controller having been obtained under section 11 of the Ordinance for the conversion of the premises into non residential building, landlord's entitlement to seek the tenant's eviction on the ground that he requires the premises, a Baithak in this case, for residential use and occupation for himself and his family is not barred in law. For these reasons, this appeal must succeed and is allowed, with the result that the impugned judgment of the High Court is set aside, and in final result the order of the Rent Controller directing respondent's eviction from the demised premises is upheld. At the request of respondent, he is allowed one month's time vacate the premises, and on his failure to do so appellant shall b, entitled to evict him forthwith, without notice. M.Y.H Appeal allowed