1998 PLP 1003 (CLC)

By this common judgment I will dispose of four First Rent Appeals being F.R.A No.76 of 1994, First Rent Appeal No.77 of 1994, First Rent Appeal No.79 of 1994 and First Rent Appeal No.86 of 1994 wherein appellants/ tenants are different but the respondent/landlord is common. The disputed premises are also situated in one residential house bearing No. 159 Pir Illahi Bux Colony (disputed property), Karachi, consisting of shops and rooms where a hotel is also being run. The appellants through these appeals have challenged the judgment, dated 18‑1‑1994 passed by the learned VI Rent Controller, Karachi East, whereby the ejectment applications were allowed. In two of the cases i.e. First Rent Appeals Nos.76 of 1994 and 77 of 1994 the appellants have, through these appeals also challenged the order, dated 18‑12‑1993 passed by the learned Rent Controller, Karachi on an application under section 151, C.P.C. for reopening of the case to adduce further evidence. The subject‑matter of First Rent Appeals Nos.76 of 1994 and 77 of 1994 are two shops bearings Nos. l and 2 situated in the disputed property which was purchased by the present respondent from previous owner Allama Syed Muhammad Razi Mujtahid for residential purposes somewhere in September, 1980. However, admittedly the said shops existed at the time of purchase of the said property and were on rent with present appellants under an agreement, dated 30‑3‑1976. In First Rent Appeal No.79 of 1994 and First Rent Appeal No,86 of 1994 the tenant/appellant Muhammad Raza is common but the property in First Rent Appeal No.79 of 1994 is a shop while in First Rent Appeal No.86 of 1994 the subject‑matter is the remaining portion of the disputed property, which was rented out to the appellant for running a hotel. The other facts in respect of the rented premises are the same as in First Rent Appeals Nos.76 and 77 of 1994. Admittedly the respondent is the owner of the disputed property, which was purchased from Allama Syed Muhammad Razi Mujtahid in September, 1980. At the relevant time the respondent was working in Doha, Qatar and as such his father was acting as his attorney and finally in 1986 when he returned to Pakistan, since the disputed property was on rent he started living in House No. 156 PIB Colony, Karachi, which belonged to his mother. The respondents family with three children found the accommodation insufficient and requested the tenants to vacate the premises for his and his family's personal bona fide use and on failure to obtain vacant possession, filed Rent Case No.66 of 1990 (F.R.A. No.76 of 1994), Rent Case No.67 of 1990 (F.R.A. No.77 of 1994), Rent Case No.65 of 1990 (F.R.A. No.79 of 1994) and Rent Case No.68 of 1990 (F.R.A. No.86 of 1994) under section 15 of the Sindh Rented Premises Ordinance, 1979, praying for an order of ejectment against the opponent and to direct them to hand over the vacant possession of the premises. Notices of the rent case were issued and present appellants/tenants filed written‑statement. Affidavit‑in‑evidence was filed by the respective parties and they were cross-examined and after hearing of the arguments of the counsel the learned Rent Controller by its judgment, dated 18‑1‑1994 allowed the applications of the present respondent/landlord directing the appellants/tenants to hand over the vacant possession of the disputed property within 30 days of the order as passed. While proceedings were pending first the father of the respondent/landlord died leaving behind the Property No. 155 P.I.B. Colony, Karachi, which is completely commercial and there is no dispute in respect of the said property, and then the mother also expired. The present appellants in First Rent Appeal No.76 of 1994 and First Rent Appeal No.77 of 1994 moved an application under section 151, C.P.C. for reopening of the case and to produce further evidence in view of the death of the parents but the learned Rent Controller vide his order, dated 18‑12‑1993 also dismissed the‑said applications. The appellants after filing the present appeals have also moved similar applications before this Court which were heard alongwith the appeals. While passing the judgment the main issue for determination four the learned Rent Controller was:‑‑‑ "Whether the applicant requires the premises on Plot No. 159 PIB Colony, Karachi, for his personal bona fide use?" I have heard the learned counsel Mr. M. Saleem Iqbal in First Rent Appeal No.76 of 1994 and First Rent Appeal No.77 of 1994 and Mr. Moinuddin Ahmed in F.R.As. Nos.79 of 1994 and 86 of 1994 for the appellants and the learned counsel for the respondent Mr. K. A. Wahab. . The contention of the learned counsel for the appellants is that the Rent Controller committed error in dismissing the application under section 151, C.P.C. as in view of the death of the parents of the applicant the accommodation had become sufficient for the need and purposes of the respondent/landlord. Mr. Moinuddin Ahmed further contended that Rent Case No.68 of 1990 was not maintainable as the premises are being used as a hotel. Next it was argued that the premises being commercial cannot be used for residential purposes and that the respondent/landlord, with mala fide intention is pursuing to eject the appellants so that he could obtain Pagri and enhance rent of the premises. On the other hand Mr. K.A, Wahab the learned counsel for the respondent contended that the premises were used by the previous landlord for residential purposes and was also purchased for residential purpose and there is no legal bar to the fact that the property can be used for residential purposes again. His further contention was that the question of sufficiency or insufficiency of accommodation is the prerogative of the landlord and the same cannot be challenged by the appellants/tenants. I have heard both the counsel and have perused the record. Admittedly the parents of respondent/landlord expired during the pendency of the rent cases. The Properties bearings Nos. 155 and 156 have been inherited by three sons including the respondent. Out of the two properties there is no dispute in regard to House No. 155 which is completely commercial. The death of the parents did not basically changed the circumstances except that the House No. 156 where the respondent/landlord is residing has become joint property of the three brothers. It has also been admitted that one of the shops in disputed property is in the possession of the respondent/landlord. At the very out set I may point out that the first application under section 151, C.P.C. was moved by the appellant at the time when the father of respondent died and the same was dismissed but the appellants did not initiate any proceedings against the said order. It was second similar applications which were moved by the appellants and were heard alongwith the rent cases. The reopening of the case would not have served any purpose except lengthening the proceedings further. The principle has also been accepted that it is the landlord who has the prerogative to decide the sufficiency or insufficiency of accommodation. In my opinion the learned Rent Controller rightly dismissed the same. In regard to his first contention the learned counsel for the appellant relied on the case of Mst. Amina Begum and others v. Mehar Ghulam Dastagir (PLD 1978 SC 220), wherein it was held that "Rent Controller and Appellate Authorities, in exercise of discretion vested in them, are not precluded to allow any bona fide amendments and take note of subsequent events in order to suitably mould relief on basis of altered circumstances in order to avoid multiplicity of litigation and shorten proceedings. Another case relied on by the counsel is of Noor Timber Importers, Karachi v. Haji Deen Muhammad and Sons, Karachi (1994 CLC (Kar.) 602), wherein landlords admitted themselves that the premises let out to tenant was a commercial plot of land with structure thereon comprising two rooms and saw mills fixed and installed therein. The Court observed that the "Rent Controller in the circumstances was right in dismissing the application filed by the landlords in respect of such premises. The above two cases do not lend any support to the case of the appellant. In the present case, admittedly, the disputed property was originally a residential quarter and some shops were carved out and were rented by the original owner who was living with his family in the said house till 1980 when the property was purchased by the present respondent/landlord as such it cannot be said that the property was originally commercial as in the case of Noor Timber Importers. No doubt that at the time when the property was purchased by the present respondent/landlord the entire premises were given on rent but that does not change the character of property. It may further be mentioned that the appellants‑failed to lay before me any document which could indicate that the entire belt where the disputed property is situated has been commercialised and there is a bar to the conversion of the same to residential purposes; nor any document has been filed showing that there is any policy of the society or any other authority concerned that the premises which are used for commercial purposes cannot be converted into a residential. The next contention of the learned counsel for the appellant was that after the death of the parents the existing premises had become sufficient for the use of family and as such the need for extra accommodation had disappeared. His further contention was that the landlord has failed to substantiate the claim of his need and insufficiency of present accommodation and as such the appeals may be allowed. The first case referred to by the learned counsel was of Akhlaq un‑Nabi v. Nawab Ahmed Shamei and 6 others (1986 CLC (Kar.) 1100), wherein it was hold that "mere assertion on part of landlord that he requires non residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Rent Controller to determine the truth of the assertion and whether it is bona fide". But in the same it was also held that if a landlord asserts his claim for personal bona fide requirement on oath then the same should be accepted at bona fide if consistent with averments in application and not shaken in cross-examination or disproved in rebuttal". Similarly, in the case of Amanullah Khan v. Hafiz Abdul Ghaffar (PLD 1985 Kar. 7), it was held that "assertion of landlord on oath as to requirement of premises for his personal use has to be accepted if consistent with the averments in his application and not shaken in cross‑examination or disproved in rebuttal ". In the present cases during the entire proceedings the landlord/respondent has been claiming that he needs his own premises for his personal bona fide use as the premises where he is staying at present is insufficient anti that there is no parking place for his car. It has also come in evidence that previously the parents of the respondent were also living in the same premises and that two other brothers who are new co‑owners of the disputed property come from abroad and stay therein which causes inconvenience and insufficiency of accommodation. Mr. K.A. Wahab the learned counsel for the landlord/respondent contended that there is no bar to conversion of premises used temporarily for commercial purpose to residential one. His further contention was that through out the proceedings the landlord/respondent has been agitating for personal bona fide use which should be accepted as envisaged in law and judgment of the superior Courts. He relied on the case of Farrukhh Sultana v. Latif Ahmed (1993 MLD 1811), wherein it was observed that "under section 15(2)(vii) of the Ordinance the landlord is entitled to possession of the premises if he requires in good faith for his own occupation or use, or for the occupation or use for his spouse or any of his children. In the Ordinance there is no distinction between the commercial and residential premises so far the ground of personal bona use is concerned". Another case relied on by the learned counsel is that of Safdar Butchar v. Khawaja Pervazuddin Butt (PLD 1996 Kar. 508), wherein it was observed that under section 2(h) of the Sindh Rented Premises Ordinance, there is no bar for conversion of a residential premises into a commercial one or vice versa as such permission may be obtained from civil agencies. It was further held "mere usage of portion of plot for a commercial purpose would not mean the premises had turned to non‑residential. The premises, for all intents and purposes, were and still are residential premises as the same was held in the case of Anis Ahmed v. Habib Bank Limited, Karachi (1992 CLC (Kar.) 1304)". In the case of Farzand Ali v. Aziz Bibi (1993 CLC (Lah.) 1309), residential premises were let out for non‑residential purpose and it was held that the "conversion of the residential premises let out for non‑residential purpose cannot be got vacated for residential purpose is also misconceived. Admittedly, the nature of the premises in question is residential. In case it was let out for commercial purpose, it cannot debar the landlady from getting it vacated for residential purpose which is in line with the nature of the property". In the case of Habib Bank Limited v. Dr. Munawar Ali Siddiqui (1990 MLD (Kar.) 792), it was held that the landlord has unfettered right to use his own premises in any manner he likes provided purpose for which premises was to be used was legal. It was further held that "personal bona fide requirement can be considered on sufficient evidence in each particular case if the same has been proved or not". In the present case also disputed premises are actually residential. It has also come in the evidence that Houses Nos.160 and 161 are being used for residential purpose and position of these two is similar to House No. 159, the disputed property. In the circumstances given in the preceding paras. It cannot be said that the entire area has become commercial and the character of property has changed and cannot be used for residential purpose. Consequently the contention raised on behalf of the appellants has no force. In First Rent Appeal No.86 of 1984 Mr. Moinuddin Ahmed, the learned counsel for the appellant contended that the Rent Controller had no jurisdiction to decide the case as the premises which are in the use of the appellant are being used as a Hotel and under section 2(b) of the Sindh Rented Premises Ordinance it has been excluded from the jurisdiction of Rent Controller. According to him the name of the premises is "Cafe Sadat Hotel" and as such it is a hotel within the definition of the word used in the Sindh Rented Premises Ordinance. I am unable to agree with the contention of the learned counsel as the word "Hotel" means a place which provides accommodation, to travellers and guests and an establishment which only offers refreshment and food ordinarily does not mean a hotel. The ordinance does not define the word "hotel", and therefore, it would be necessary first to see the ordinary grammatical meaning of the word. According to the Shorter Oxford English Dictionary the word "hotel" inter alia means "an Inn; especially one of the superior kind," "a dwelling place, lodging, a public house for the lodging and entertainment of travellers, wayfarers, etc." The Black's Law Dictionary (Fifth Edition) defines the meaning of the word "hotel" as under: "A 'hotel' is building held out to the public as a place where all transit persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a well‑defined private group. " In Stroud's Judicial Dictionary (Third Edition), it has been stated that a "hotel" is a place where lodgings are let and where provisions are, to some extent, supplied. It is further observed that the modern word is introduced from the French, and rather implies a house to which people resort for lodging, than for the sort of entertainment procured only at an inn. Further, essential nature of a hotel has been described as the business carried on in the building to which the public are entitled to resort for accommodation and refreshment or reception of guests and travellers desirous of dwelling therein. In Haisbury's Laws of England (Third Edition) the word has been defined as "a hotel is an establishment held out by the proprietor as offering food, drink, and if is so required, sleeping accommodation, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received". In the case of Zafar Ali v. Allah Bachayo (PLD 1989 SC 294) it was observed "from the various definitions of the word "hotel" in ordinary grammatical meaning and as used in some of the statutes interpreted judicially, we feel that the concept of hotel ordinarily imports the idea of providing accommodation to travellers and guests and an establishment which only offers refreshment, would, therefore, ordinarily not mean a hotel. " it was further held that "the establishment which offer refreshment like eatable and drinks are generally called restaurants or cafes. It is also common knowledge that in mofussil areas of this country the word "hotel" is loosely used with reference to small road side tea shops". No doubt preliminary objection was raised by the present appellant and one of the issue in Rent Case No.65 of 1990 was "whether the Court has jurisdiction to entertain the rent application in Rent Case No.65 of 1990?" The Rent Controller after discussing the issue in detail on page 9 of the judgment has observed that "opponent No. l (present appellant) has nowhere stated in written‑statement and in his affidavit‑in‑evidence and even in cross-examination that he is providing accommodation to people for staying there and as such the premises is a hotel. Mr. Moinuddin Ahmed, the learned counsel for the appellant admitted during the arguments that the appellant does not provide any accommodation to people for staying. In view of, this admission and keeping in view the definition given in each law Dictionaries the Rent Controller was right in rejecting the contention of the appellant that the premises is being used as a "hotel" and consequently the rent case was not maintainable. The arguments raised on behalf of the appellant that after the premises in question are vacated they would be relet by the respondent/landlord on enhanced rent and Pugree could not be substantiated. The upshot of the above discussion is that from the evidence on record it is proved that respondent/landlord's demand for vacation of the disputed property is made in good faith. Accordingly the appeals having no merit are dismissed with no order as to costs. However, the appellants are granted three months' time to vacate the premises and hand over peaceful vacant possession of I the disputed property of the respondent/landlord. A.A./M‑25.7/K Appeal dismissed.