1989CLC2417 (PLP)

(2) Whether the eviction application has been filed without any power of attorney and liable to be dismissed in view of P.O.C of written statement? (3) What is the exact rate of rent? (4) Whether respondent is bad pay master and has failed to pay or tender the rent w.e.f. October, 1976? (5) Whether applicant No.l requires the premises in question in good faith for their own use and occupation? (6) Relief. Record reveals that respondent adduced 5 witnesses, besides their attorney Raja Amir Muhammad. First three witnesses namely (AW‑1) Malik Pir Bakhsh' (AW 2) Muhammad Yasin and (AW‑3) Bashir Ahmed have deposed that `suit property' was bona fide required for the use and occupation of Raja Amjad Ali the son of respondent No.l for carrying his business. They also mentioned that these days he was not doing any job or business. AW‑4 representative of Excise Department produced P.T.I. of the 'suit property'. Raja Amjad Ali (AW‑5) professed that 'suit property' is required for starting his business. Whereas AW.6 Raja Amir Muhammad attorney of respondents also gave detailed statement concerning personal bona fide requirement of `suit property' for Raja Amjad Ali to carry out shoes business, there. It is pertinent to note, that the attorney during cross‑examination candidly admitted, that ground floor was let our for business purposes, however upper storey was leased out to appellant for residence and are being used in the same manner, till date. Appellant in rebuttal examined 5 witnesses apart from himself. (R.W‑1) Azizullah, (RW 2), Abbas Ali, (RW‑3) Dr. Arbab Ali Ahmed and (RW‑4) Maqbool Ahmed in their respective depositions attempted to explain that respondents wanted exorbitant enhancement of rent, or alternately sale of (suit property) at a very high price. It was also stated by Dr. Arbab Ali Ahmed (RW‑3) that Raja Amj‑ad Ali had a petrol pump near Quarry Road. (RW 5) Abdul Jahl, representative of Industries Department produced partnership deed Ex.R/1 of Mir Coal Company and Ex.R/2 containing details of partners. Further‑more representative of Tehsil appeared in the Court on 26‑12‑1988 and tendered copy of Fard Ex.R.3 pertaining to petrol pump, in the name of respondents and their attorney. Appellant gave detailed account of the nature of building specifying that upper storey was let out exclusively for residential purposes whereas ground floor being commercial unit was explicitly rented out for purposes of running hotel business. In respect of default he deposed that after death of Raja Saif Ali rent has been regularly deposited with Controller. Appellant expressly denied bona fide requirement of `suit property' for the use of Raja Amjad Ali. It was stated that Raja Amjad Ali had service station, petrol pump and share and control over various business concerns and building contracts. Appellant reaffirmed that factually, respondents through Raja Amjad Ali wanted unconscionable increase of rent to the tune of Rs.5,000 thus present proceedings aim at pressurising him to increase monthly rental.

4. At this stage it would be pertinent to mention another factual aspect. Appellant on 22‑6‑1988 furnished a list for summoning 9 witnesses, consisting of 7 private persons and two officials. Learned Controller on the same date observed that appellant could produce only four private persons, besides official witnesses mined in said list. It was mainly on account of the fact that oral evidence of all such witnesses, pertained to challenging the issue of bona fide requirement of 'suit property'.

5. However, trial Court on appraisement of evidence and condideration of points raised by learned counselor parties granted the application for ejectment from whole building (i.e ground storey and upper storey) by means of order dated 20‑5‑1989. Accordingly appellant was directed to hand over vacant possession of the `suit property' to respondents within four months. Feeling aggrieved from aforesaid order, present appeal was filed on 19‑6‑1989.

6. Firstly, learned counsel for appellant greatly stressed that Controller had no jurisdiction to curtail number of witnesses on the very first date. According to him direction of the Controller eliminating three private witnesses out of seven mentioned in list was illegal, arbitrary, unprecedented, this discretion so exercised does not vest in him. Considering this objection it may be seen that Controller in spite of performing certain judicial functions mainly acts in a quasi‑judicial capacity. Undisputedly he is not bound to follow exhaustive procedure contained in Civil Procedure Code. However, while acting under the provisions of Rent Restriction Ordinance he can manifestly simplify procedural intricacies as far as possible. Anyhow proceedings so drawn by the Controller should necessarily reflect fair opportunity of contest to the parties without tings of perversity or arbitrariness. Novertheless hard and fast rules cannot be laid for the Controller exercising quasi‑judicial authority for controlling or curtailing unnecessary prolongation or burdening of record. Obviously facts of each case have to be considered on its own merits. In the instant case evidently nine witnesses were sought to be adduced, where as Controller permitted two official and 4 private witnesses. It is not disputed that all private witnesses were merely to challenge the issue of bona fide requirement of respondents by suggesting that Raja Amjad Ali was doing other business and landlords actually wanted enhancement of rent. I have no doubt in my mind that Controller without exhibiting capricious conduct or arbitrariness can reasonably regulate the proceedings. Appellant had option of producing his best four witnesses out of seven named in the list. Thus directed inference would be that evidence of remaining 3 witnesses is of considerably inferior quality. Primarily it is to be seen, whether oral version of witnesses examined by appellant make out any plausible defence. In may opinion appellant could perhaps make out some grievance only if minor omissions were left out in contradicting stand of landlord. Learned counsel for appellant could not specifically state exact prejudice caused for not allowing remaining three witnesses. Considering evidence on record, it is quite apparent that Controller in exercising discretion m the instant case did not make any serious error. Forl principle of law, I respectfully find support from the observation in case (i) Major (Retd.) Fazal Muhammad Khan v. Sardar Khan and 3 others (PLD 1980 Lahore 33) and Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another (P.L.D. 1965 Supreme Court 459), and Ayub Khan and another v. Fazal Haq and others (P L D 1976 S.C. 422) (at p.429).

7. Next question requiring determination would be, whether common application for two portions of 'suit property' which are of independent character and were admittedly let out and are being used separately for residential and commercial purposes, is maintainable. 1t may be seen that "building" defined under Section 2 (a) of "Rent Ordinance", means a building or part thereof let out for any purpose whether being actually used for said purpose or not and includes land, godown, outhouse etc. Whereas under Section 2 (d) of "Rent Ordinance" of `non‑residential' building is defined to be solely used for purpose of business or trade. Similarly 'residential' building under section 2 (j) means any building which is not "non‑residential". Additionally section 11 of "Rent Ordinance" expressly provides a limitation whereby landlord is not authorised to convert residential building into non‑residential, without written permission of Controller. Mr. Ehsanul Haq, learned counsel for respondent emphatically urged the `suit property' that 'suit property' is a composite building comprising of `ground floor' and `upper storey', having single municipal number located in a commercial area, primarily of a commercial nature, therefore, mere use of its portion (upper storey) for residential purposes would not convert its basic status and character. He thus contended that 'suit property' being basically a commercial unit, objection concerning non‑maintainability of common application, was misconceived. To substantiate his submissions reference was made to a number of reported judgments, concerning common building put to composite use, which do not aptly apply to the facts of this case. It is however clear that for arriving at correct conclusion true nature of building, with particular reference to its primary character and not subsequent use to which it has been put needs to be ascertained. Thus for proper rationalization of real issue about maintainability of common eviction application it would be imperative to first determine basic character, nature and status of building. Admittedly, `suit property' consists of two separate portions being `ground floor' and 'upper storey'. Raja Amir Muhammad attorney of respondent categorically stated that ground floor is a shop let out to appellant for running hotel business; whereas `upper storey' was leased out to him exclusively for residential purpose. This factual position is further elaborated by appellant in his statement before trial Court. Record of Excise and Taxation Department in the form of P.T.I. brought on record by respondents landlords as Exs.R‑1 and R‑2 unambiguously confirms existence of two portions being used for aforesaid separate and independent purposes. Evidence thus undisputedly establishes that both the portions of `suit property' have different distinct identifiable character, and are being used accordingly. In the circumstances mere fact that building has single Municipal number or rent is jointly paid, would not ‑treat or style it "non‑residential building" being put to composite use. Thus, each `` portion of `suit property' has its distinct character, which has also been retained by separate type of use from the very inception. Perusal of section 13 of the Ordinance shows that grounds for seeking possession in respect of residential and non‑residential business have been differently specified in section 13 (3) (a) (i) and (ii) of `Rent Ordinance'. Comparison of definitions concerning various types of building and analysis of case‑law suggests that basic of character of building coupled with use to which same was put from the very inception could provide effective guide for determining whether same be deemed residential or non residential. Zafar Ahmed and others v. Muhammad Hussain (P L D 1982 Karachi 451) mentions broad factors for ascertaining nature of building namely (i) location of building, (ii) type of construction and its intended use, (iii) purpose or use to which building has been put and permission of Controller for changing nature of use of the building is duly accorded. It is held in case (i) Muhammad Amir Baig v. Pir Muhammad Khan (P L D 1965 Lahore 385), (ii) Muhammad Salim v. Begum Mussarat Bashirul Hassan (P L D 1981 Supreme Court 578), (iii) Raja Qurban Ali v. M.M. Sharif (1980 S.C.M.R. 590), (iv) Raja Khurshid Ali v. Addl. District Judge (P L D 1984 Lahore 169) and (v) Ghulam Rasool Shah v: Kamal Khan (1986 S.C.M.R. 1605) that if a building is primarily of `residential character' and also expressly let out for such purpose or even if it is of composite nature and independent portion distinctly let out for residential purposes, landlord could seek ejectment from the residential portion only on the grounds available for residential building and not otherwise. It is further ruled in cases (i) Agriculture Development Bank v. Sh. Muhammad Ayub (1984 C L C 1696), (ii) Muhammad Aquil v. Khairunisa (1984 C L C 1912) and (iii) Gul Afzal Khan v. Muhammad Hanif Arif (P L D 1979 Lahore 398) that non‑residential building cannot be availed for residential needs and vice versa. Facts and evidence adduced by the parties in this case undoubtedly disclose that basic character of two portions of the `suit property' are apparently quite different, distinct, separate and independent, therefore, on the principle of law referred to above, a common application seeking ejectment from `upper storey' on the ground of requiring it for business would not lie. With respect it is observed that principle discussed in D the reports relating to composite building referred by learned counsel for respondents, in the peculiar circumstances of this case would not be helpful to him. Consequently I have no hesitation in holding that eviction application culminating m present appeal shall not be maintainable for residential portion (upper storey) and shall be deemed competent only to the extent of (ground floor) commercial unit. Now coming to merits, it may be seen that preponderant evidence is adduced for establishing bona fide requirement of 'ground floor' being commercial unit of 'suit property' for the use and occupation of Raja Amjad Ali son of respondent No.l. Statements of all the four witnesses as well as Raja Amjad Ali and Attorney Raja Muhammad Amir, sufficiently prove genuine need of the commercial unit.. Factually their version. in this behalf has not been E impeached at all. There is ample evidence to show that Raja Amjad Ali is not doing any business of his own for the time being. It is unchallenged that he was married towards 1984 and has got family to fall back upon. Thus, anxiety for starting his business is quite obvious and reasonably genuine. Appellant through evidence has merely attempted to show that respondents had intention to increase monthly rental of the premises and thus claim for requirement was not bona fide. Reference was also made to legal notice issued to appellant towards April, 1979. Abortive attempt to draw adverse inference from the same was also made but arguments were obviously devoid of force. In fact version of witnesses examined by appellant is altogether sketchy, vague, hearsay and apparently unreliable. Without prejudice even if, assertions about alleged enhancement were true and duly proved, then too observation in case Shamsul Islam Khan v. Pakistan Tourism (1985 S C M R 1996) offer complete answer to the same. Effort was made to suggest that Raja Amjad Ali has petrol pump and is associated with several other business concerns. Firstly appellant has not been 'able to substantiate through plausible or convincing evidence, that Raja Amjad Ali for whom commercial unit i.e. ground floor of the `suit property' is required has independent business of his own. Secondly even if it was proved that he had some interest in any business, the landlord for himself or children has right of improving or expanding existing business or resources, unless bad faith is shown to be existing or reflected from record. Observations in following reported cases support this view:‑ (i) Malik Abdul Oadoos v. Mst. Maryam Bibi and others P L D 1981 Lab. 456. (ii) Shariyar Ali Parudi and others v. M/s. Decora Furnishers P L D 1985 Karachi 47 at p.59.

8. Additionally penal consequences provided under Section 13 (4) also contain salutary check against mala fide actions of landlord and afford adequate safeguard in that behalf. If authority is needed reference may be made to following reported judgments: (iii) Muhammad Laman v. Mahboob Ellahi (P L D 1981 Lahore 609). (ii) S.B. Khan v. Member‑II, Board of Revenue, Balochistan and others (PLD 1982 Quetta 35). (iii) Sh. Abdul Aziz and others v. Kh. Hassan Joo and others (1981 S.C.M.R. 924). (iv) Messers Hafeezan Coal Company v. Abdul Qayum (P L D 1987 Quetta197.

9. From the above discussion and consideration of available record, I am satisfied that requirement of Raja Amjad ali son of Respondent No.l for his use and occupation of commercial unit, i.e. "ground floor" of 'suit property' is genuine and bona fide. Accordingly keeping in view legal and factual aspects and for the foregoing reasons I have no hesitation to arrive at following conclusions; (i) `Suit property' consists of two distinct separate and independent units of which, ground floor (commercial unit) is being used for running hotel business, whereas upper storey is exclusively residential. Thus present eviction application praying for need of the son of respondent No.l for running business relates only to the commercial unit at ground floor, however said application is not maintainable as regards upper storey which primarily has residential character and admittedly let out exclusively for said purposes. (ii) Bona fides regarding use and occupation of commercial unit i.e. ground floor of 'suit building' having been fully established, appellant would be bound to hand over vacant possession of only commercial unit (shop) being ground floor to respondent. (iii) Consequently order for eviction of appellant from ground floor (the shop, being used by appellant for carrying hotel business) is upheld, however, impugned order so far as it relates to eviction of appellant from (residential portion of the building i.e.) "upper storey " is set aside. The impugned order is consequently modified in the above terms. (iv) In view of scarcity of business premises a period of four months from ,today is granted to appellant for handing. over ground floor (shop where hotel business is run by him) to respondent. Appeal is disposed of in the above terms, however, parties are left to bear their own costs. A.A./337/Q Order accordingly.