P L D 1963 (W (PLP)

7. I see no force in the contention of the learned counsel for the respondents. "Non‑residential building" has been defined in the Ordinance in the following words :‑‑ "non‑residential building means a building being used solely for the purpose of business or trade". There is no manner of doubt that the premises in question were being solely used for the purpose of business and trade by the appellant on the day that the respondents made their applica tion under section 13 of the Ordinance. From the lease deed dated the 17th of June 1952, under which the premises in dispute were rented to the appellant, it is clear that building was to be used by the appellant for manufacturing food and other "pro cessed food industries" for a period of five years. There is nothing on the record to suggest that the appellant had neither during the period of five years contemplated by the lease deed or thereafter used the building for purposes other than manufacturing food etc. It is, therefore, clear to my mind that the building in question was as a non‑residential building. In this view of the matter, it appears to me that the respondents, irrespective of the fact whether they required the building in question in good faith or otherwise, could not ask for its occupation on the ground that the residential house they were occupying was not suitable for their needs at the time. To determine the validity of the claim of a landlord to occupy a building which is in occupation of a tenant, subsection (3) of section 13 has to be examined. Subsection (3) reads as follows:‑ "(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession‑ (i) in the case of a residential building, if‑ (a) he requires it in good faith for his own occupation or of any of his children ; (b) he is not occupying another residential building suitable for his needs at the time, in the same urban area in which such building is situated ; and (c) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area ; (ii) in the case of a non‑residential building or a scheduled building or rented land, if‑ (a) he requires it in `good faith for his own use or the use of any of his male children; (b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time ; and (c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area: Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant the landlord shall not be entitled to apply under this subsection before the expiry of such period; Provided further that where the landlord had obtained possession of a residential, scheduled or non‑residential building or rented land under the provisions of sub‑paragraph (i) or sub paragraph (ii) he shall not be entitled to apply again under the said sub‑paragraph for the possession of any other building of the same class or rented land unless such residential, scheduled or non‑residential building or land is no longer suitable for his needs at the time. (b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided that Controller may give the tenant a reason able time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate."

8. It is obvious from subsection (3) (a) (1) that it is only a residential building that a landlord can occupy in supersession to the claim of the tenant to remain in its occupation if the landlord requires it in good faith for his occupation or for the oc cupation of any of his children, whether they are male or female, and in the case of a non‑residential building, sub‑paragraph (U) of clause (a) of subsection (3) lays down that a landlord can occupy it in supersession to the right of the tenant to remain in its occupation if the landlord requires it in good faith for his own use or for the use of his "male" children and he or his said child is not occupying in the same urban area such a non‑residential building for the purpose of his business. It appears to me that what is contemplated in subsection (3) (a) (d) is that a non residential building can be claimed by the landlord in supersession to the right of the tenant to continue using it if the landlord requires the building for the purpose of his business, and not when he requires it for residential purposes. Since not only no evidence has been led by the respondents that they wanted the building in question for the purpose of their business but had not even averred that they required the building for their personal use in connection with their business, I hold that the learned Rent Controller and, for that matter, the lower Appellate Authority were right in recording their findings on issue No. I in favour of the respondents.

9. As regards issue No. 3 I must uphold the findings of the lower Courts since it appears to me that the appellant was not entitled to withhold the arrears of rent equal to Rs.

700. Although the respondents' contention is that the arrears of rent to the tune of Rs. 850 had been withheld by the appellant, the latter had himself admitted that R. 700 had been kept back by him. As to whether a tenant can carry out repairs (when the landlord fails to make them the relevant section of the Ordinance is section

12. It reads as follows :‑ "If a landlord fails to make the necessary repairs other than structural alterations, to a building, it shall be competent for the Controller to direct, on application by the tenant and after such inquiry as the Controller may think necessary that such repairs may be made by the tenant and that the cost thereof may be deducted from the rent which is payable by him." According to this section, it is necessary for the tenant in order to entitle himself to withhold any arrears of rent for the purposes of deducting the cost of repairs to get the permission of the Controller for carrying out the repairs. In the present case, apparently the appellant did not with hold the amount of Rs. 700 which amounts to more than three months' agreed rent at the rate of Rs. 225 per month after having obtained previous permission of the Rent Controller who was supposed to have granted the permission only after an inquiry into the necessity of the repairs. In this view of the matter, I do not think the appellant had made himself liable to eviction because he made no payment of rent to the respondents for more than three 'months. I, therefore, uphold the findings of the lower Courts on issue No.

3. Nor do I find any good ground for inter fering with the discretion that the Rent Controller has exercised in ordering the eviction of the appellant.

10. For the foregoing reasons, the appellant's appeal is dis missed. Since a finding on one issue has been given in favour of the appellant, I make no order as to costs. The appellant shall vacate the premises and put the owner in possession of the building within a period of one month. K. B. A./A. H. Appeal dismissed.