1980 PLP 590 (SCMR)

(a) That the same was required by them in good faith for their own occupation ; and (b) That whereas the house had been let out for residential purposes, the petitioner had, in violation, of the tenancy agreement, put it to com mercial use in which he was running an hotel. The petitioner, in the written statement filed by him, denied the said various allegations with the result that the learned Rent Controller framed in the proceedings twelve issues out of which Issues No. 8 and 9 alone being relevant, may be reproduced: - "(8) Whether the building in question is required in good faith by the petitioners for their own occupation ? O. P. A. (9)Whether the respondent has used the building for purposes other than that for which it was leased out ? O. P. A." After recording the evidence of the parties, which they wished to pro duced before him, the learned Rent Controller answered both the said issues in favour of the respondents, and consequently directed the ejectment of the petitioner, vide his order dated 9-12-1977. The petitioner feeling aggrieved of the said order, challenged the same in appeal before the Additional District Judge, Rawalpindi, who vide his judg ment dated 25-2-1979, dismissed the same holding that the respondents had succeeded to prove that they required the suit house in good faith for their own occupation. On issue No. 9, however, he reversed the finding of the learned Rent Controller, as from the analysis of the evidence on record he concluded that the suit house had initially been let out to the petitioner not for residential purposes but for using it as an hotel. Feeling still dissatisfied, the petitioner went to the High Court in Second Appeal. But the same was dismissed by a learned Judge, vide his judgment dated 18-11-1979. The only contention urged in the High Court on behalf of the petitioner was that the suit house was in fact a non-residential building and therefore, the same could not be got vacated for the residence of the respondents. The learned Judge in the High Court, however, rejected the said contention, as in his view it was meant to raise a question of fact which could not be allowed to be raised at the stage of second appeal. The further view taken by the learned Judge was that in so far as the character of the suit house was concerned, the same had never been in issue between the parties, and further that although the petitioner had raised a number of preliminary objections in his written statement but had taken no objection therein that the suit house in fact was a non-residential building. Mr. Bashir Ahmad Ansari, the learned counsel for the petitioner argued that the said finding recorded by the learned Judge in the High Court was factually erroneous, and in that behalf referred to para. 2(a) of the written statement filed by the petitioner, in which the plea taken by him was: We are afraid, there is no force in this contention. It is common ground between the parties that the suit house was indeed being used by the peti tioner as a hotel, but that would not mean to change the character of the house which was originally constructed as a house for residential purposes. In other words, to put a residential house to commercial use is one thing and a building originally constructed for non-residential purposes such as trade or business is entirely another. We are, therefore, in respectful agreement with the view taken by the learned Judge in the High Court that the said question raised before him on behalf of the petitioner was meant to canvass a question of fact which question, however, could not be raised for the first time in second appeal. Quite apart from this position, by the examination of the original rent deed which was placed before us by respondent Mian Muhammad Sharif, it transpired that the suit house had been let out to the petitioner as a house and not to be used for commercial purposes. The learned counsel for the peti tioner did not dispute this position. But nevertheless urged that since the petitioner had been using the suit house, as an hotel, with the tacit approval of the respondents, the same must be held to have acquired the character of a non-residential building, and so it could not be got vacated for the residence of the respondents. There is no force in this contention for more than one reason. Assuming for the sake of argument that the respondents had acquiesced in the use of the suit house by the petitioner as an hotel, even then it would be insufficient to sustain the said contention urged on his behalf as under section 13(2)(ii)(b) the petitioner, even if there existed no legal bar in his way, could not have put the suit house to commercial purposes without the written consent of the respondents, which however, is lacking in this case. Furthermore, the petitioner seems to be faced with another difficulty, and in that behalf reference may be made to section 11 and section 19 of the Rent Ordinance, 1959, which respectively run 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 subsec tion (1) of section 10, section 11 or section 18 he shall be punished with fine which may extend to one thousand rupees." 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 residen tial 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 Or dinance prohibiting the conversion of a non-residential building into a residen tial building, as also that any person found to have contravened the provi sions 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 resi dential 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. This petition, therefore, fails and is dismissed. However, the petitioner is allowed the period of four months to vacate the said building, subject to his paying rent for the said period to the respondents. Petition dismissed.