P L D 1984 Lahore 169 (PLP)

This petition under Article 9 of the Provisional Constitution Order, 1981; calls in question the judgment dated 27‑11‑1982 of the learned Additional District Judge, Rawalpindi, in an ejectment matter.

2. Facts relevant for disposal of this petition, as per record, are that Khushi Muhammad, respondent No. 3 herein, filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance (VI of 1959) (hereinafter referred to as the Ordinance) against the petitioner, who is a statutory tenant under him in terms of the provisions of the Displaced Persons (Compensation & Rehabilitation) Act (XXVI1I of 1958), in respect of shop No. U/188, Mochi Bazar, Rawalpindi. The ejectment was sought on the ground that the respondent‑landlord bona fide required the shop, in dispute, for using it as his drawing room. It was also averred in paragraph 2 of the ejectment application that "the applicant is in possession of house No. U/189, Mochi Bazar, Rawalpindi, which comprises of four small rooms, which is not sufficient for the needs of his family. He has no drawing room which is urgently required by him". The application was resisted by the petitioner herein, who in his written statement raised a number of preliminary objections and also contested, the application on merits. In paragraph 2 of the preliminary objections, it was stated that "the property in dispute, is a commercial shop and not a residential building and as such the applicant cannot ask for its ejectment on the ground of the respondent owning personally or his wife owning a residential building in Rawalpindi . . . . . . . ."

3. In view of the pleadings of the parties, the learned Rent Controller framed the following issues :‑ (1) Whether the petition is barred by section 14 of the Rent Restriction Ordinance? (2) Whether the disputed premises is non‑residential building and cannot be got vacated for residential purpose ? (3) Whether the petitioner requires the disputed property for his personal use in good faith? (4) Whether the respondent is entitled to special costs, if so, to what amount? (5) Relief. The learned Rent Controller decided issues Nos. 1 and 4 against the petitioner and issue No. 2 in his favour. No finding was recorded on issue No. 3 and as a result of findings on issue No. 2, the ejectment application was dismissed on 3‑7‑1982. The respondent‑landlord challenged this order in appeal. It was stated in para. 5 of the memorandum of appeal that the shop in dispute, was part and parcel of main residential House No. U/189 of respondent No. 3 herein. It was also averred in para. 8 thereof that "even if the building is held as a composite building, although it is clearly a residential building even then the appellant is entitled to get the small shop vacated from the respondent on ground of the appellant's personal need for using the said shop as a Baithak of his house ...... ".

4. The learned Additional District Judge, after re‑evaluating the evidence, recorded a finding of fact that the entire building including the disputed shop was composite in nature and the same could be got vacated by the landlord for residential purposes. He also recorded a finding of fact on issue No. 3 that the shop, in dispute, was required as a drawing room by the respondent‑landlord in good faith and that there was no reason to reject his statement in that regard. With these observations the ejectment applica tion was accepted and the petitioner was directed to hand over vacant possession of the disputed premises to the respondent‑landlord on or before 27‑2‑1983 vide judgment dated 27‑11‑1982.

5. Learned counsel for the petitioner contended that it was not the case of the landlord in his ejectment application that shop No. U/188 and House No. U/189 are one composite building. The landlord had clearly stated the suit property to be a shop having a different number and his witnesses (AW/1 and AW/2) had admitted that the entrance doors of the said shop and house were also separate. The learned Additional District Judge, therefore, could not go out of the landlord and set up a case which was not the case of the landlord himself. In support of this contention, reliance was placed on Messrs Karim Commercial Co. Ltd. v. The United Oriental Steamship Co. Ltd. (P L D 1970 Kar. 427), Amin Yousuf Nizami v. Rashid Rayon Mills Karachi (P L D 1971 Kar. 505) and Pakistan v. Abdul Ghani (P L D 1964 S C 68).

6. There is no cavil with the principle embodied in the aforesaid decision. It is well‑settled that an argument involving a question of fact not pleaded in the plaint, cannot be allowed to be raised at argument stage. It is not open to a party to prove in the proceedings the case which was not pleaded by him at all in his pleadings. An application for ejectment should, therefore, contain in concise form all the material facts on which the land lord relies fur his claim so as to let the tenant know what case he has to meet. The parties cannot be allowed to take a stand at variance with the pleadings. This is also the principle enshrined under Order VI, Rule 2, Civil Procedure Code. I see no reason why parties to the ejectment application, are not bound to follow this rule which is in conformity with the principle of natural justice, although the Rent Controller is not a Court stricto sensu. In the instant case, the respondent took up the plea before the learned Rent Controller that the disputed premises was a part of composite residential building and also led documentary evidence i.e. Permanent Transfer Deed (Exh. R/3) to prove nature of the property, in dispute. The learned Rent Controller, after hearing arguments of learned counsel for the parties and considering the evidence on record, recorded a finding to the contrary. The respondent‑landlord was, therefore, certainly competent to challenge this finding in appeal. In terms of subsection (6) of section 15 of the Ordinance; the Appellate Authority is competent to make such further inquiry as it B thinks fit, either personally or through the Rent Controller, in the exercise of its appellate jurisdiction. The Authority is also competent to record additional evidence suo motu for the purpose of such inquiry. The impugned order is, therefore, not open to any valid exception on this score. Further‑, more, the respondent also specifically took up this point in the memorandum of appeal before the Appellate Authority to which no objection was taken by the petitioner‑tenant. He, therefore, cannot be permitted to take this point for the first time in these proceedings.

7. Learned counsel for the petitioner next contended that the impugned order is based on erroneous assumption of fact, inasmuch as, no finding was recorded by the learned Rent Controller against issue No. 3, therefore, no question arose for reversing his findings on this issue. The contention is misconceived. It is true that if this Court is of the opinion that there is no proper evidence to be considered by the learned Additional District Judge in support of some material point in the impugned order, the same is liable to be quashed in the exercise of constitutional jurisdiction. Here although the learned Rent Controller gave no specific finding against issue No. 3 but the Appellate Authority, after re‑appreciating the evidence and giving the parties an adequate opportunity of being heard, himself decided issue No. 3 to which no exception can be taken. I am not inclined to accept the contention that the learned Additional District Judge instead of deciding it himself ought to have remanded the case to the Rent Controller to record his finding on the issue of personal need. This view is fortified by the dictum of the Supreme Court in Mst. Sardar Begum v. Muhammad Saleem (P L D 1984 S C 62) wherein it was held that cases arising from Rent Restriction law should end within the shortest possible time so as to save time of the litigants in the matter which on principle required summary disposal. Reference be also made to Pramatha Nath Chowdhury v. Kamir Mondal (P L D 1965 S C 434), Nasir Ahmau v. Khuda Bakhsh (1976 S C M R 388), Fateh Ali v. Pir Muhammad (1975 S C M 8221), Samiullah v. Mian Muhammad Salim (P L D 1966 (W. P.) Lab. 572), Syed Mocood Hussain v. Muhammud Saeed Khan (P L D 1965 (W. P.) Lab. 11) Nasiruddin Khan v. Abdul Majid (N L R 1979 Civil Lab. 551) and Mst. Zahida Yousaf v. Mst. iftikhar Akhtar (1982 S C M R 303) herein it has been repeatedly held that in order to shorten litigation, remand should be avoided, and the Courts of correction should decide the questions itself finally where the entire material is available on record.

8. Learned counsel for the petitioner placed reliance on Seth Girdharf Lal v. Marzia Bano (P L D 1963 (W. P.) Quetta 25), Jamil Ahmed v. Me. Sultana Jehan Begum (P L D 1974 Kar. 319), Muhammad Ashraf v. Muhammad Anwar (P L D 1975 Pesh. 254) Muhammad Bashir v. Sultan Mahmood Khan (P L D 1975 Lab. 254), Dr. Bano Abedin v. Dr. Haq Nawaz Arbab (P L D 1982 Kar. 818), Sabir Hasan v, Munir Malik (P L D 1983 Kar. 414), Nek Muhammad v. Muhammad Shafi (1983 S C M R 180), Gul Afzal Khan v. Muhammad Hanif Arif (P L D 1979 Lab. 398) and Sh. Manzur Ahmad v. Muhammad Hanif (P L D 1970 Lab. 391) to contend that in terms of section 13 (3) (a) (if) of the Ordinance, a "non‑residential building" cannot be claimed by the landlord for residential purpose, and that portion of a building rented out for purely commercial purposes is a "non‑residential building" which cannot be claimed for residental purpose. The precise contention is that the petitioner could not be evicted from the building, in dispute, which is a "non residential building", to fulfil the residential need of the respondent.

9. In Seth Girdhari Lal's case, the building, in dispute, was admittedly a "non‑residential building" which was to be used and being used solely for the purpose of business and trade by the tenant. It was not a case of a composite building. In this view of the matter, it was that a "non residential building" cannot be claimed by a landlord for residential purpose. This decision is, therefore, no assistance. In Jamil Ahmad's case, the building let out was a double storyed building. A shop on ground floor was let out to the tenant and upper floor was occupied by the landlady and her family members. The eviction of the tenant was sought on two grounds First, that the accommodation at the disposal of the landlady's family was insufficient and, secondly, she wanted to expand her clinic where she was carrying on homoeopathy practice. However, at the trial the landlady's husband deposed that the shop, in dispute, was required for residential purpose. The application was allowed by the Rent Controller. This order was upheld by the Appellate Authority but set aside by the High Court in second appeal on the ground that a on‑residential building cannot be directed to be given in possession of the landlord for residential purpose. In the precedent case, the case of Muhammad Amin Beg v. Pir Muhammad Khan (P L D 1965 (W. P.) ab. 3850) was examined and the ratio laid down therein was approved that eviction of a tenant can be sought for personal residence in case of a composite build ing. In Jamil Ahmed's case, it was never argued that the shop let out to the tenant formed part of a composite building. This decision is, therefore, distinguishable. In Muhammad Ashraf's case, the building, in dispute, was let out to the tenant as a shop. The landlord sought eviction of the tenant from the shop, in question, which was described as a baithack, for his residential need. The learned Single Judge of the Peshawar High Court dismissed the ejectment application observing that :‑ "A bare persual of section 13 (2) of the Ordinance would show that in there commercial and residential premises have been dealt with separately and in order to be able to seek recovery, a landlord must be able to prove that he required the premises to be used by him for the same purpose for which they had been let out and not vice versa. The only provision, which would have seemingly supported the case of respondent, would be found in clause (vi) of subsection (2) of section 13 of the Ordinance, in which it is said that a landlord may make an application for the eviction of his tenant on the ground that he wishes to reconstruct a building on the site and has already obtained the necessary sanction of required authority for the said reconstruction. But it was not the case of respondent that he required the suit shop for any such purpose. The question of composite nature of building was not examined in the precedent case, therefore, it is of no avail to the petitioner. The view expressed in Muhammad Bashir's case, and Gul Afzal Khan's case supports the contention of the learned counsel for the petitioner that where a building was residential but a part thereof was let out for commercial use, the disputed premises was treated as "non‑residential building" and the landlord was treated as having no right to claim the same for his bona fide personal need and the premises rented out by the landlord was alone to be considered in ascertaining the nature of the building. The procedent cases were examined in Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi (PLD 1983 LAH 674) in the light of the later view reflected in Rana Khalil‑ur‑Rahman v. Additional District Judge, Lahore (P L D 1983 Lab. 331), Nasiruddin Khan v. Abdul Majid (NLR 1979 CIVIL LAH 551), Raja Qurban Khan v. Begun M. M. Shartf and another (1980 SCMR 590) and Sh. Muhammad Asif v. Mst. Khurshid Begum (1981 CLC 562) wherein it has been held that where a building is composite, it would be treated as residential, where it is residential and leased out as such, then notwithstanding its non‑residential use or portion thereof with or without F permission of the landlord, the leased portion shall retain its residential character and the landlord shall have a right to claim the same for bonafide residential purpose. The same view was taken in Suba v. Siraj Din (PLD 1977 LAH 1263). Reference may also be made to Agricultural Development Bank v. Sh. Muhammad Ayub (NLR 1981 UC 400) . I respectfully follow it. Also see the provisions of section 11 of the Ordinance, which provides that no person shall convert a non‑residental building, except with the permission in writing of the Controller. In Dr. Bano Abedin's case, the learned Single Judge of the Sind High Court observed that in order to determine whether a particular premises is residential or non‑residential inter alia the following facts are to be taken into consideration: ‑ (i) Whether the building is situated in a residential area? (ii) What is the type of construction of the building, whether it is intended to be used as a residential unit or as a commercial unit? (iii) For what purpose it was used? (iv) Whether the purpose was changed with the permission of the Raw Controller under section 11 of the late Ordinance. In the precedent case, first floor of the building, in dispute, was used for residential and ground floor was rented out for running a Poly‑Clinic. Applying the test laid down therein it was observed that merely the fact the ground floor was rented out for running a Poly‑clinic will not debar the appellant from applying for ejectment on the ground of personal requirement for residential purpose. The respondent herein was transferred the‑entire building by the Settlement Department as one unit. It was intended to be used as a house and a shop and was actually being used for that composite purpose, therefore, even in the light of test laid down in Dr. Bano Abedin's case, relied upon by the petitioner's counsel, the premises, in dispute, is a composite building. In Sabir Hasan's case, the landlord carved out two shops in a portion of his house and let out the same as such. The learned Judge treated the shops, in dispute, as a "non‑residential building" on the reasoning that under section 2(a) of the Ordinance, a part of the building can also be a building. I say with respect that the effect of section 11 of the Ordinance which prohibits the conversion of a residential building into a non‑residential building except with the permission of a Rent Controller and the provisions of section 19 of the Ordinance, which provides that if a person contravenes the provisions of section I1 he shall be punished with fine which may extend to one thousand rupees was not examined in the precedent case. Also refer Raja Qurban Khan v. Begum M. M. Sharif (1980 S C M R 590) wherein it was held that in the absence of any permission having been obtained from the Controller under section 11 of the Ordinance a house would continue to retain its character as a house notwithstanding the fact that it was actually being used as hotel. In Nek Muhammad's case, the building, let out was a shop and it also included a chaubura. Subsequently the tenant started residing in the chaubara comprised in the building. It was held that as the entire building had been taken by the petitioner under a single leased deed as one unit, the property was rightly treated as a shop. Here the entire building was not leased out to the petitioner as a shop, therefore, the mere fact that a portion of it was let out as a shop would not effect the composite nature. This case is, therefore, distinguishable and not attracted to the facts of the present case. In Sh. Manzur Ahmad's case it was observed that if the whole building is let for any purpose to a tenant, then‑ the whole premises constitutes a building, but if a huge building is let in parts to various tenants then each part so let is a building by itself within the ambit of section 2 (a) of the Ordinance, and eviction can be sought only in respect of a portion of building needed for demolition and the tenants in respect of other parts of building cannot be evicted. Here a portion of the composite building is not required for demolition but the building, in dispute, is required for the personal need of the landlord. The precedent case is therefore, distinguishable.

10. The precedents cited at the Bar by the learned counsel for the petitioner on closer examination were found not to be helpful in the facts of the present case. In terms of clause (a) of section 2 of the Ordinance, "building" means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses together with furniture let therewith but does not include a room in a "Sarai", hotel, hostel or boarding house, and a "non residential building" according to clause (d) of the said section means a building being used solely for the purpose of business or trade. The term "residential building" as defined in clause (g) of the aforesaid section means any building which is not a non‑residential building. It is, therefore, evident that the building which is used for composite purpose, namely business and residence, will, therefore, fall under the definition of "residential building" and under section 13 (3) (a), a landlord can apply to the Rent Controller for the eviction of a tenant from the business premises. For the foregoing reasons the impugned order calls for no interference in the exercise of constitutional jurisdiction. The writ petition is, therefore, dismissed, but in the circumstances, there shall be no order as to costs. Petition dismissed.