1992 PLP 1962 (MLD)

4. The learned Controller on evaluating evidence formed opinion that ‑shop is different and distinct from house. It bears separate Municipal number etc. So far issue pertaining to default in payment of rent was concerned that was answered in negative. Similarly issue of personal bona fide use and occupation of disputed shop was decided against appellant holding that shop cannot be used as a residential room being a small one. Thus appellant has approached this Court challenging the impugned order dated 29th February, 1992.

5. Mr. Jamal Khan Mandokhail learned counsel appearing for appellant Sultan Muhammad contended that learned Controller has erroneously come to conclusion that shop in occupation of appellant being a small one cannot be used as a residential unit by appellant for his son. So much so the findings of Controller to the effect that a commercial unit cannot be converted into a residential premises are contrary to law.

6. On the other hand Mr. Mumtaz Hanfi .Baqri learned counsel for respondents urged that Controller called for the report from a local commissioner, who after physically inspecting the premises expressed his opinion that the shop being different and distinct from the house cannot be used for residential purposes. Besides, the disputed shop in its existing position cannot be ordered to be converted into residential room unless there is a request by appellant to demolish the same for the purpose of re‑construction by amalgamating the same into the house admittedly situated adjacent to the shop. Appellant has failed‑to prove his bona fides for occupying the shop for the use and occupation of his son Najeebullah because in evidence it has come on record that the same is required for the use of Fareedullah third son of the appellant whose in marriage is pending due to lack of sufficient accommodation.

7. I have heard both the parties at length. Case file has also been perused. At the first instance it would be imperative to examine the substantive provisions of statute governing the proceedings i.e. Balochistan Urban Rent Restriction Ordinance VI of 1959 with a view to understand whether a legal bar has been imposed for converting of a commercial building into non commercial. In this behalf section 11 of the Ordinance VI of 1959 lays down that no person shall convert a residential building into a non‑residential building except with the permission in writing of the Controller. From plain language of this section it can be gathered that there is no statutory impediment in conversion of a non‑residential building into a residential one.

8. Mr. Jamal Khan Mandokhail Advocate emphasised that as under law there is no restriction for converting a commercial unit into residential, therefore, irrespective of the fact whether the shop was small one the Controller was not competent to exercise jurisdiction in favour of respondents in refusing their ejectment. To substantiate the plea he placed reliance on Munir Malik v. Sabir Hussain reported in 1989 SCMR

193. In the reported case landlord sought ejectnemt of his tenant from a shop on the ground that he bona fide requires the same for converting it into a garage for parking his car for which purpose he had obtained a requisite building plan duly sanctioned by Municipal Corporation and had also paid requisite conversion charges. The Controller dismissed the application on the ground that building let out for use as a non‑residential building could not be got vacated by landlord for residential purposes. The matter was taken up in appeal before High Court of Sindh where opinion was expressed by the learned High Court of Sindh that a landlord could not maintain application for ejectment of a tenant from the shop on the ground that he required it for residential purposes and application could be maintained only if the premises were required by the landlord for residential purposes. Thereafter landlord took up the matter before Hon'ble Supreme Court by filing petition for leave to appeal, which was granted and in appeal it was held as follows:‑‑ "The grievance of the learned counsel for the appellant that the plea of the landlord that he required the premises for demolition and reconstruction was not considered by the learned High Court, is borne out from the impugned judgment. Such !being the case, the judgment of this Court referred to above, fully supports the case of the appellant. The learned counsel for the respondent was unable to distinguish the above case. ' We would, however, like to further observe that while section 11 of the Ordinance bars the conversion of a residential building into a non -residential building without the permission in writing of the. Controller, the conversion of the same is not prohibited. In the instant case the landlord had applied for eviction on the ground of reconstruction and personal use." The dictum laid down in above‑quoted judgment makes it clear that landlord would not be obliged to seek orders of Civil Judge for converting non‑residential premises into residential one. However, Mr. Mumtaz Hanfi Advocate for respondents agitated that bona fides of landlord in occupying the non‑residential unit for residential purposes could not be established unless intention has been expressed for demolition and reconstruction, the existing building for the purpose of using it as residential because for the purpose of conversion existing building has to be demolished for amalgamating it into residential building. In the instant case no permission has been obtained by appellant from Municipal Corporation, therefore, conclusion may be drawn that appellant has no intention to occupy the disputed shop as a residential room. To substantiate his stand he relied on PLD. 1982 SC 362, 1986 SCMR 1605, PLD 1969 Quetta 21, PLD 1975 Lahore 254 and PLD 1974 Karachi 319.

9. In the first case of Dr. Muhammad Rafiq v. District Judge, Lahore and 2 others reported in PLD 1982 SC 362, it was laid down that landlord who had let out his bungalow half for occupation for residential purposes and other half for use as Hospital being scheduled building, portion could be got vacated for purpose of setting up a lawyer's office by landlord's son and other half used by tenant as his residence could also be got vacated by landlord for his own residence or that of his son.

10. I fail to understand that how this case is helpful to respondents. Rather it appears that principle has been laid down by Hon'ble Supreme Court, that landlord has a prerogative to occupy any building for his personal use notwithstanding the fact whether it was a commercial or scheduled building. So far second judgment in the case of Ghulam Rasool Shah v. Kamal Khan reported in 1986 SCMR 1605 relied upon by learned counsel for respondents is concerned that too apparently is of no help to him because according to the facts, noted therein a room of house which was rented out to the tenant was used for the business purpose and subsequently eviction application was moved by the landlord for occupying the same for his personal use as Bhatak and it was held that landlord can seek eviction of tenant on ground of personal requirement for residence, notwithstanding the fact that same might have been used by tenant for commercial purposes and ultimately eviction was ordered.

11. In case of Jamil Ahmad v. Mst. Sultana Jehan Begum reported in PLD 1974 Karachi 319 ejectment of tenant was, refused from the shop which was required by landlord to convert into residential premises for his children and for his own occupation on the ground that under the scheme of section 13(3) of Urban Rent Restriction Ordinance, VI of 1959 landlord can only apply for ejectment of the tenant from a non‑residential building if the same is required by him for personal use or for the use of his children and if the ejectment is sought from non‑residential building for converting into residential building that would not be allowed. For reference relevant para. is reproduced hereunder:‑‑ "It is to be noted that sub‑paragraph (i) talks of the requirements of the landlord and his children, for his and their occupation, and sub paragraph (ii) which deals with non‑residential building, is confined to the use of the landlord and his male children. The succeeding clause, expressly introduces the words "for the purposes of his business". The scheme of the Ordinance, to my mind seems to be, that a residential building (building as defined in the Ordinance means and include "part of a building let for any purpose..."), can be put in possession of a landlord to meet bona fide residential needs of the landlord or any of his children and the non‑residential building for the bona fide non- residential requirements of the landlord and his male children. It will therefore follow, that notwithstanding good faith, a non‑residential building cannot be directed to be given in the possession of the landlord for residential purposes of his own, or, the limited category of male children and vice versa:' In another judgment reported in PLD 1975 Lahore 254, request of landlord for occupying a non‑residential building for residential purposes was turned down.

12. Both the learned counsel for parties placed reliance in support of their respective contentions on the case of Kocumal‑Kherajmal v. Seth Dema Mal reported in PLD 1969 Quetta

21. The facts of the case are like this that respondent/landlord sought eviction of appellant from a shop for purpose of converting it into a residential unit. The Controller as well. as first appellate Court acceded to the request of landlord and ultimately matter was placed before this Court and arguments were advanced that landlord was in occupation of another shop in the same urban area which was being used as a Bhaithak after converting it into a residential room, its real nature is not altered and the same continues to retain its original character notwithstanding its altered user and as such it was incumbent upon the Rent Controller to determine whether the shop was or, was not suitable for the purposes for which ejectment was being sought. In this background, it was held as under:‑‑ "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 shop to a residential purpose, the conversion of a room which is attached to a residential building into a baithak or 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." In case of M/s. Allah Ditta Musical Company v. Mohd. Idreas Baqir and 8 others reported in 1986 CLC 591 it was laid down that under section 11 of the Ordinance the landlord cannot convert a residential building into a non -residential building without the permission of conversion of non‑residential building into a residential house.

13. In the light of aforesaid precedent law I feel no hesitation m holding ‑that appellant was not under any legal disability in applying to Controller for ejectment of respondents from shop in question. It may be seen; that it was no body's case, that requisite permission has not been obtained by the landlord from Municipal Corporation for amalgamating the shop into the house after carrying out process of dismantling etc. Therefore, bona fides of appellant cannot be questioned on this score.

14. Now reverting back to the question whether appellant had succeeded in proving good faith and bona fides for occupying the shop for the use of his son. In this respect it may be noted that during pendency of application a local Commissioner was appointed to inspect the site. probably for the reason, whether the disputed shop is suitable for personal requirements of the appellant. According to the report of local Commissioner size of the shop is considerably small and the shop is considerably small and the shop is not suitable far using as dwelling room but can be used for some other purpose. Learned Controller mainly had placed reliance on the report and turned down the request of the appellant for the reasons that shop is not suitable for residential purposes. It is observed that suitability of premises has to be adjudged keeping in view the relevant circumstances available on record. In case in hand‑sufficient evidence has been brought on record to prove that a large number of appellant's family is residing in the adjacent house, which is not sufficient to cater their requirement. Particularly when there are married children living with families, as well as grown up daughters of appellant. Thus, on having obtained possession of shop in question landlord or his family members including the sons will utilize the shop as per their requirements. Therefore, the conclusion drawn by the Controller in this behalf appears to be not based on any sound reasoning.

15. Mr. Mumtaz Hanafi Baqri vehemently argued that there is contradiction in pleadings of appellant and evidence produced before the Court. In eviction application it was stated that ‑shop is required for personal bona fide use and occupation of his son Najeebullah whereas in the evidence it has come on record that shop is required for the use of third son of appellant namely Fareedullah.

16. I have gone through the evidence produced by the appellant, although there are contradictions but the same are not material because family of appellant is jointly residing in the adjacent house, and they can use shop in question after converting it into a residential unit for the purpose either by Najeebullah or Fareedullah. The plea of appellant cannot be brushed aside for the reason that there are minor contradictions in the evidence. Nevertheless fact remains that the shop in question shall be used by appellant's sons.

17. Under the, provisions of Ordinance VI of 1959 a safeguard has been provided to a tenant against landlord if he fails to occupy the premises within the stipulated time the possession of the premises shall be restored to tenant, therefore, if the shop in question is not occupied by any one of the sons of the appellant the respondents shall be at liberty to approach the Court for restoration of possession.

18. For the reasons and discussions made above I am inclined to hold that order of Controller dated 29‑2‑1992 is not sustainable. Consequently same is set aside and respondents are directed to hand over vacant possession of shop bearing No.7‑7/560‑A situated at Toghi Road, Quetta to appellant within a period of 4 months subject to payment of agreed rent. Parties are left to bear their own costs. AA./411/Q Appeal accepted.