1992 PLP 2351 (SCMR)

AJMAL MIAN, J.

This appeal is with the leave of this Court against the judgment dated 26-5-1987 passed by a learned Single Judge of the High Court of Sindh in F.RA. No.66 of 1984 filed by the appellant, dismissing the same and maintaining the order of ejectment dated 1-12-1983 passed by the learned XIVth Senior Civil Judge/Rent Controller, Karachi (South), in Rent Case No.817 of 1982.

2. The facts to be noted are that the respondent filed aforesaid rent case for ejectment in respect of Shop Np.5 situated on the ground floor of Plot No.6/72-A, Commercial Area, Liaquatabad, Karachi, hereinafter referred to as the shop, on the grounds .of default, subletting, causing damage/alteration as to impair the value and utility of the shop, and conversion of the shop into a godown. The above application was resisted by the appellant. On the basis of the pleadings of the parties, the learned Rent Controller framed the following five issues:- (1) Whether the opponent has committed default by-not tendering/paying the rent since January, 1977, till the date of filing of this application and thus committed deliberate default in the payment of rent? (2) Whether the opponent has sublet the premises and handed over its possession to some one else? (3) Whether the opponent has caused damage/alteration in the premises in question and has thus impaired the value and utility of the premises? (4) Whether the opponent has converted the said shop into a godown and used it for the purpose other than agreed between the parties? (5) What should the order be? The parties produced their respective evidence. The respondent during the arguments did not press issues Nos.2 and

3. The Rent Controller on above Issues Nos.1 and 4 i.e. default and conversion of the shop into a godwon, recorded his findings in the affirmative and, therefore, allowed the ejectment application. Thereupon, the appellant filed aforesaid F.RA. which was dismissed by a learned Single Judge of the High Court through the judgment under appeal, whereby he reversed the finding on the question of default but maintained the finding on the question of conversion of shop into a godown. After that, the appellant as well as the respondent filed separate petitions for leave to appeal. The respondent's petition for leave was dismissed but the appellant's petition for leave was granted to consider the question, whether the view taken by the learned Single Judge is not sustainable in law inasmuch the Rent Laws confine the use of the premises for residential or commercial purpose without sub-dividing the commercial use' into specific purposes and that also because of the fact that there was no- term in the tenancy agreement with regard to the specific purpose for which the premises were let out.

3. In support of the above appeal, Mr. Kunwar Mukhtar Ahmed, learned ASC appearing for the appellant, has urged that since there was no specific purpose mentioned in the tenancy agreement for the use of the shop, the user of the shop as a godown does not amount to change of the purpose for which the shop was taken on rent by. the appellant. On the other hand, Mr. S. Ishtiaq Ali, learned ASC appearing for the respondent, has contended that in the absence of any contrary purpose mentioned in the tenancy agreement, the shop could be used by the appellant for its normal purpose, namely, for carrying on business transactions, and that the conversion of the shop into a godown, amounts to breach of sub-clause (b) of clause (iii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance.

4. It seems to be an admitted position that in the tenancy agreement dated 1-4-1972, no purpose for the use of the shop has been specified. It is also an admitted position as was conceded by the learned counsel for the appellant during the arguments of the petition for leave that the appellant has now been using the shop as a godown though originally he was using it as a shop. The question, therefore, arises that in the absence of specifying any purpose in the tenancy agreement, for what purpose the shop could have been used. In this regard, reference may be made to the following cases:- (i) Ch. Muhammad Anwar Sipra v. Malik Muhammad Din etc. PLD 1981 SC 491; in which the facts were that the appellant had taken on lease under a lease deed the premises as a house. He converted part of the house into a lawyer's office. The respondent/landlord filed ejectment application on the ground of unauthorised conversion of the use of house into an office in breach of section 13(2)(iii) of the West Pakistan Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, which was granted. The matter came up before this Court and one of the questions for consideration was that in the absence of any covenant in the lease deed providing the purpose for which the house was to be used, for what purpose the house could have been used by the appellant/tenant. The above question was answered as follows:- "

9. We have heard the counsel for the parties at length and considered the aforementioned question. We are of the view that even if the provision of clause (p) of section 108 of the Transfer of Property Act, were not to be invoked, the tenant in this case would be liable to ejectment under section 13(2)(ii)(b) of the Rent Restriction Ordinance. It would be noticed that the premises had been mentioned in the lease deed as a house. Although the lease deed is silent about the use to which the house was to be put, yet considering that it is mentioned in the lease deed as a house, secondly that the premises in question consist of the first and the second floor of the building, it is evident that the said premises were leased out on the condition that it would be used for residential purpose. Therefore, by putting it to a different use by converting a part of it into a lawyer's office, the appellant had evidently infringed the first part of clause (b) of section 13(2)(ii), which prohibits a tenant from using a building for a purpose other than for which it was leased out. Moreover, he can also be deemed to have infringed one of the conditions on which he had evidently taken the house on lease, i.e. to use it for his residence. As such he was also guilty of contravening the second portion of clause (b) of section 13(2)(ii). Again, since the lease deed does not contain any clause permitting the tenant to make any construction on the building without the landlord's consent, therefore any construction made by the tenant without the permission of the landlord would evidently be against the written agreement." (ii) Muhammad Saleem and others v. Begum Musarrat Bashirul Hassan and another PLD 1981 SC 578: In the above case, the appellant/tenant had taken on rent a bungalow. The agreement of lease did not specify the purpose for which it was to be used. The appellant installed a Printing Press in the bungalow. The respondent/landlady filed ejectment. case against the appellant on a number of grounds. The matter came up for hearing before this Court in an appeal with the leave of the Court and the question, as to the conversion of the bungalow from residential use into commercial use, was considered and inter alia it was held that the same was violative' of section 11 of the late Ordinance. It will be pertinent to reproduce paras.12 and 13 of the above judgment which have direct bearing to the present controversy and which read as follows:- "

12. The lease deed is silent on the question as to the use to which the bungalow was to be put, but it is admitted that shortly after it was given on rent the petitioner installed a printing press in it. All the Courts have given a concurrent finding that the bungalow was required by the landlady for her personal use. The fact that it is a residential bungalow is evident from the fact that it is situated in a purely residential area of Gulberg (Lahore) and the fact that respondent No,2, actually resides in the first floor of that bungalow.

13. As for the legal contentions, on which the leave was granted, the matter has been set at rest by the judgment of this Court in Raja Qurban Khan v. M.M. Sharif 1980 SCMR

590. In that case, a house in Murree was let out on rent by the owner. It was, however, used by the tenant as a hotel. One of the questions considered in that case was whether the use of a building originally constructed for a residential purpose, for commercial purpose, either with the permission of the landlord or his tacit consent or acquiescence, would change the nature of the building. It was held that despite the permission or acquiescence of the landlord the tenant could not have put the house to commercial use without getting the sanction of the Rent Controller under section 11 of the Urban Rent Restriction Ordinance, 1959. The relevant portion may be usefully reproduced in extenso, for facility of reference:-- "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 a 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 residential 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."

5. The ratio of the above cases seems to be that if a lease deed or tenancy agreement gives the description of the premises as a house or as a shop without specifying the purpose for which they are to be used, it would be presumed that the rented premises would be used for which it is normally used. In the present case as stated hereinabove, the premises was described as a shop. The question, therefore, arises, as to whether use of the shop as a godown can be treated as the normal use of the shop. The terms "shop" and "godown" have not been defined in the Ordinance. The late Ordinance divided the premises into two broad categories, namely, non-residential building and residential building by providing definitions of the same in clauses (d) and (g) of section 2 of the late Ordinance as follows:- "(d) "non-residential building" means a building being used solely for the purpose of business or trade; (g) "residential building" means any building which is not a non-residential building;" .

6. It may be noticed that "residential building" has been defined as means any building which is not a non-residential building, whereas "non-residential building" has been defined as means a. building being used solely for the purpose of business or trade. However, in the Ordinance there is no such division of the buildings into non-residential and residential, but the Ordinance has described the terms "building" and "premises" in clauses (a) and (h) of section 2 as follows:- "(a) `building' means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garage, outhouse and open space attached or appurtenant thereto; (h) "premises" means a building or land, let out on rent, but does not include a hotel;" The above-quoted definitions indicate that the "building" has been defined as means any building or part thereof, together with all fittings and fixtures therein, if any, including any garden, garage, outhouse and open space attached or appurtenant thereto, whereas the "premises" has been defined as means a building or land, let out on rent, excluding a hotel.

7. Since the Ordinance does not contain the definitions of the terms "shop" and "godown", we will have to refer to their ordinary or literary meanings. In this behalf, reference may be made to the definitions of the above terms given in the following Dictionaries:

Concise Oxford Dictionary. New Edition, 1982, pp.425 arid 976: "shop" n. & v. (-pp-). 1. n. building, room, etc., for retail sale of some commodity or service (chemist's, butcher's fruit--betting-, shop; come to the wrong ~, (sl.) apply to wrong person (etc.) or in which manufacture or repairing is done (engineering-shop; fitting, pattern, etc., -shop;. CLOSED shop). 2. (sl.) institution, establishment, place of business, etc. 3. one's profession, trade or business, things connected with it, or talk of it esp. when inopportune;" "godown" n. warehouse in parts of E. Asia, esp. in India (f. Port. gudao f. Malay godong, gadong, perh. f. Telugh gidangi place where goods lie (kidu lie):' Chambers 20th Century Dictionary New Edition pp. 538 and 1198: "shop", n. a building or room in which goods are sold: a place where mechanics work, or where any kind of industry is pursued: a place of employment or activity es. a theatre: prison (slang): talk about one's own business. -v.i. to visit shops, es. for the purpose of buying. v.t. to imprison, or cause to be imprisoned (slang) to betray (someone), e.g. to inform against (him) to the police." "godown" go-down, n. a warehouse, or a storeroom in the East. (Malay gudang.)" The Oxford Universal Dictionary nn.866 and 1979: "shop;

1. A house or building where goods are made or prepared for sale and sold. Banker's shop a bank. (Orig. the shop of a goldsmith or other tradesman who practised banking.)-1796.

2. A building or room set apart for the sale of merchandise. late ME.

3. A building or room set apart and fitted up for the carrying on of some particular kind of handiwork of mechanical industry; a workshop. Now often, a building or room in a factory, appropriated to some particular department or stage of the work carried on there. late ME. b. fig. (Chiefly after L. officina.) A place where something is produced or elaborated, or where some operation is performed.. Often said of the heart, liver, or other internal organs.-1737. 4. collog. or slang. A place of business; the place where one's ordinary occupation is carried on." "godown" Anglo-Ind. 1588 -- Place where goods lie. A warehouse or store for goods in the East:' Aiyer's Manual of Law Terms and Phrases- pp 324 and 627: "shop" The trade or business contemplated by the main portion of the definition in section 2(22) of the Bombay Shops and Establishments Act (LXXIX of 1948) is not any business of selling whatever and however conducted but only those trades where the selling is conducted on defined premises. The very idea of a shop in that connotation betokens a room or a place or a building where goods are sold." "godown" A storage, warehouse." The American Heritage Dictionary of the English Laneua P . 1197: "shop"

1. A small retail store or a speciality department in a large store.

2. An atelier; studio.

3. A place for the manufacture or repair of machinery or the like: a machine shop. 4. a. Any commercial or industrial establishment. b. A business or other similar activity: set up shop.

5. A home workshop 6. a. A schoolroom fitted with machinery and tools for instruction in the manual arts. b. The manual arts as a technical science or course of study". Wharton's Law Lexicon p 929: "shop", a place where things are kept for sale, usually in small quantities, to the actual consumers. By Shops Act, 1912, S.19, `shop' includes any premises where any retail trade or business is carried on; `retail trade .or business' includes the business of a barber or hairdresser, but not the sale of programmes, etc., at places of amusement."

8. A perusal of the above-quoted definitions indicates that the ordinary dictionary meaning of a "shop" is a place where the things are kept for sake usually in small quantities to the actual consumers or building, room for retail sale of some commodity or service. In broad sense, it also includes the place in which the manufacturing or repairing is done. Whereas "godown" means a warehouse or a place where the goods or articles are stored. It is, therefore, evident that the definition of a "shop" does not cover a godown which has its own specific meaning in the dictionary as well as it has also been understood by the people in the sense in which it has been defined in the -dictionaries. However, Mr. Kuifwar Mukhtar Ahmad has referred to the following cases in support of his contention that the use of the shop as a godown does not violate I section 15(2)(iii)(b) of the Ordinance:- (i) Mst. Naima Khatoon v. Shamimuddin 1986 CLC 2602; in which a learned Single Judge of the Sindh High Court, while maintaining the order of Rent Controller declining to grant ejectment on the ground of conversion of the shop into a workshop for carrying out repairing, denting and painting of cars, observed that in the absence of any positive covenant prohibiting the tenant from carrying out business of the above nature, there was no violation of above provision of section 15 of the Ordinance. (ii) Muhammad Siddjq v. Anjumane Taheiri Saddar Jamaat Committee 1987 CLC 352: In the above case, a learned Single Judge of the Sindh High Court maintained the order of the Rent Controller refusing to grant ejectment on the ground of breach of section 15(2)(iii)(b) for using the shop for running a Printing Press and observed that since the premises were let out for general commercial purpose without having any written agreement, the installation of the Press was covered by the said purpose. (iii) National Bank of Pakistan and another v. Messrs Film Exhibitors Ltd. 1987 CLC 1547: In the above case, the High Court maintained the order of the Rent Controller declining to grant ejectment on the ground of conversion of the premises for other use than for which it was let out. In the above case, the bank instead of opening a Branch of the bank, had used the premises for storing its own record and housing its Engineering Department.

9. On the other hand, Mr. S. Ishtiaq Ali, besides relying upon the above two referred cases of this Court, has also placed reliance on the following cases:-' (i) Suba v. Siraj Din PLD 1977 Lah. 1263; in which a learned Single Judge of the Lahore High Court inter alia dilated upon the definitions of the words "trade" or "business" by referring to the meaning given in the Oxford English Dictionary and held that the word "trade" in short means "anything practised for a livelihood", whereas the expression "business" on the other hand has more extensive meaning than the word "trade" as it may include occupation which would not strictly come within the meaning of the word "trade". (ii). Wali Muhammad v. Shabbir Ahmad 1980 CLC 835: In the above case, a learned Single Judge of the Lahore High Court, while construing the expression "for the purpose of business or trade" used in subsection 2(d) of section 13 of the late Ordinance, held that the use of the premises for godown solely was not covered by the above definition, and observed as follows:- "The contention is plainly untenable on facts as well as in law. Jurisdiction of learned Rent Controller under the Ordinance is contingent on existence of relationship of landlord and tenant between the parties and the property subject-matter of the proceedings should be a building residential or non-residential, rented land or scheduled building situated in an urban area. Admittedly, the premises were not used by the petitioners for the purpose of residence. Non-residential building is defined in section 2(d) of the Ordinance as a building used solely for the purposes of business or trade. Rented land has been defined as any land let separately for the purpose of being used principally for business or trade. Use of a building or property for dumping articles of trade where no transactions, dealings, or actual commercial activities are held cannot be treated as building or rented land used solely or principally for the purposes of business or trade. To keep stock of the articles of trade would be merely incidental to or a step in aid of purposes of business or trade and could not in itself be treated as business or trade:' (iii) Mst. Nusrat Agha v. Mst. Zubaida Fikree 1985 CLC 1861; in which a learned Single Judge of the Sindh High Court maintained the order of ejectment on the ground of conversion of the residential premises into commercial by opening a private school.

10. In the present case, the learned Single Judge has dilated upon the question of conversion of the shop into godown and observed as follows:- "I am of the opinion that where a demised premises is identified merely as a shop then the same can be used only as shop, but if the said premises came to be used later on exclusively as godown, then that would tantamount to a change of user. Similarly if such a demised premises was put to use exclusively as a godown or shop-cum-godown (for the moment assuming that the expression `godown' connotes a building that is used for the purpose of only stocking provisions therein) then that would tantamount to the change of user. The reason being that when the premises is used as a shop, it is being put to constant use by the tenant which by implication ensures its proper upkeep like timely repair, timely white-washing, but when premises is used as a godown, which is merely used for dumping goods therein, such upkeep may neither be possible nor by implication envisaged as such a godown remains mostly closed, while a shop remains mostly open. The premises used as a godown are bound to deteriorate and a landlord if had been informed at the time of entering into tenancy agreement that the tenant intended to use the demised premises described as a shop, he might not have agreed to enter into the said agreement. Hence when the demised premises are used for a purpose to which having regard to its description as shop "godown" etc., the landlord may not have intended, had the said different purpose, which the tenant had in mind, been made known by the tenant to him, then the landlord may not have agreed to let out the said shop for that purpose. The word "shop" does not mean or include a godown for the purpose of section 15(2)(iu)(b) of the Ordinance and the premises, which are mentioned as a shop in the tenancy agreement cannot without the written consent of the landlord, be converted into godown for storing rice. The words "shop" and "godown" are distinct having distinct and separate meanings which are well understood in this part of the country and for that matter, in dictionaries meanings of the words `shop' and `godown' are given as these are understood in Pakistan."

11. The cases cited by Mr. Kunwar Mukhtar Ahmad do not advance the case of the appellant. On the contrary, they are-in line with the definition of the word "shop" given in the above-quoted dictionaries. The word "shop" is susceptible to a wide connotation as to include a workshop or a Printing Press, but even above broader meaning would not cover a "godown" which has a definite limited connotation. The cases cited by Mr. S. Ishtiaq Ali support his' contentions. Even otherwise, I am inclined to hold that there seems to be no legal infirmity in the above reasoning of the learned Single Judge in chambers, who has concurred with the finding of the learned Rent Controller. The above conclusion seems to be in consonance with the definitions of the terms "shop" and "godown" referred to hereinabove. In this view of the matter, the appeal has no merits and it is dismissed, but there will be no order as to costs. ZAFFAR HUSSAIN MIRZA, J.

I have had the benefit of reading the judgment proposed by my learned brother Aimal Mian, J. in this appeal. However, with utmost regard for the views of my learned brother, I am unable to agree with the enunciation of law and the findings on fact reached by him. I would now briefly state my reasons for holding a difference of opinion with my brother. I need not state the facts involved in this case in detail as they have been mentioned in the opinion of his Lordship. The eviction order passed against the tenant is based upon the provisions of section 15(2)(iii)(b) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as `the Ordinance') i.e. that he has without the written consent of the landlord "used the premises for the purpose other than that for which it was let out". It is now well settled that the relationship between the landlord and tenant is regulated by the general law, namely, the Transfer of Property Act, 1882 (which is directly applicable to, the Province of Sindh) except to the extent contrary provision is made in the Sindh Rented Premises Ordinance, 1979. Section 108 of the Transfer of Property Act, provides that in the absence of contract or local usage to the contrary, the rights and obligations of the lessor and lessee shall be as provided therein. Part (B) of the said section deals with the rights and liabilities of the lessee and clause (o) lays down, inter alia, that the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased. In their commentary on the Transfer of Property Act, on this clause, Chitaley and Rao have observed that this clause, enacts, in substance, the principle of English Law to the effect that the lessee is bound to use the property in a reasonable and tenant-like manner. As the Ordinance has borrowed the same terminology in connection with the same subject-matter of legislation, it will be reasonable to seek assistance from the English Law in the matter of interpretation of the provisions in question. Thus in U Po Naing v. Burma Oil Company Limited AIR 1929 PC 108, while interpreting clause (o) of section' 108 of the Transfer of Property Act, in a case where lease of land was granted of oil well site for getting oil from land, on the question whether the lessee could use the gas which came out from the well drilled in the land, following observations were made: "A further argument was based upon the provisions of section 108 subjection (o), T.P. Act, 1882, which provides that the lessee of property must not use the property for a purpose other than that for which it was leased. In their Lordships' judgment it is not necessary exhaustively to discuss the limits of that provision, but there seems to be nothing inconsistent with its terms in the use of gas which is necessarily set free by reason of the sinking of the oil well for the respondents' own purposes without doing any damage or .any injury to the property leased." In Halsbury's Laws of England (Fourth Edition), Volume 27 (Landlord and Tenant) at p.271, the authors while commenting on the covenants restricting the user of premises observe that leases of buildings, whether dwelling houses or trade premises, usually contain a covenant by the tenant restricting their use. The purpose for such restrictive covenants is to protect neighbouring occupiers from annoyance, or to confine the use of trade premises to certain trades. In this connection following relevant statements are made: "Moreover, if land is let for a specified purpose, its use for other purposes will be restrained by injunction; but otherwise the tenant is not prohibited, as between him and his landlord, from using the premises for any lawful purpose, notwithstanding that it is different from the purpose originally contemplated, provided there is no fraud on the landlord in taking the lease in an unrestricted form. A covenant not to carry on any trade other than a particular trade does not imply a positive obligation to carry on that trade, but the lease may impose such a positive obligation on the tenant." Cases that may arise under the provisions of section 15(2)(iii)(b) of the Ordinance can be broadly divided into three categories, i.e., (i) where there is a tenancy agreement which expressly provides for the restriction on the use specifically, (ii) where there is an agreement of tenancy but it does not make any provision restricting the use of the premises specifically and (iii) where there is no written agreement at all. The case before us falls under the second category because admittedly there is an agreement of tenancy but there is no covenant therein restricting the use of the premises to any particular purpose. In such a case the question has to be largely decided on the true construction of the agreement, between the parties and the surrounding circumstances as may appear in the evidence throwing light on the intention of the parties with regard to the crucial question, if any, restricting the purpose of the tenancy to a particular trade, business or use. Having made the aforesaid general observations, I may, now refer to the facts of the present case. The learned Judge in the High Court decided the question whether the tenant had put the premises to a use for a purpose other than that for which it was let out mainly on the basis of the description of the premises as a "shop" in the agreement. In the present case admittedly there was no specific covenant in the agreement of tenancy restricting the use of the premises for a particular purpose. The learned Judge in the High Court in this connection made the following important observations: "In the instant case the agreement is silent about the purpose of the shop but it described it as a 'shop" without any further description thereof. Accordingly, if a demised premises is identified as a shop in a tenancy agreement, it would be taken that the parties had used the expression "shop" in the sense in which the shop is understood in common parlance or as indicated by its dictionary meaning." Proceeding on this principle, having come to the conclusion that the shop was being used as a "godown", learned Judge held that the tenant was guilty of changing the user of the premises and violating the restrictive covenant. Mr. Justice Ajmal Mian has agreed with the above-said conclusion relying upon certain decisions of this Court and deducing a principle 'that where the tenancy agreement gives the description of the premises as a house or a shop without specifying the purpose for which they are to be used, it would be presumed that the rented premises would be used for the purpose for which they are normally used. I regret, with utmost regard, my inability to subscribe to a general principle so widely stated as a test for resolving a controversy of such a nature. In this connection reference was made to Ch. Muhammad Anwar Sipra v. Malik Muhammad Din etc. PLD 1981 SC

491. The facts in the said case are distinguishable, inasmuch as, in that case the premises were leased as a house and the nature of the building was, in all probability that of a dwelling house. Therefore, its conversion for the purpose of a lawyer's business office, was patently a use for which the premises were not let out. Muhammad Saleem and others v. Begum Musarrat Bashirul Hassan and another PLD 1981 SC 578, was similarly a case of leasing out the ground floor of a bungalow, under a lease which was silent with regard to the use to which the building was to be put, but the tenant had installed a printing press therein. Therefore, in the absence of a provision in the agreement the question was resolved with reference to the nature of the building which was apparently intended to be used as a dwelling house. Both these cases are under the repealed Urban Rent Restriction Ordinance of 1959, which not only made a distinction between non residential building and residential building, but also put an embargo upon conversion of a residential building into a non-residential or commercial building without the permission of the Controller. Similarly Suba v. Siraj Din PLD 1977 Lah. 1263, Wali Muhammad v. Shabbir Ahmad 1980 CLC 835 and Mst. Nusrat Agha v. Mst. Zubaida Fikree 1985 CLC 1861, on which reliance was placed by the learned counsel for the landlord have no material bearing on the controversy in this case. . In a case like this and indeed in every such case, in view of the language in which the provisions of section 15(2)(iii)(b) of the Ordinance are couched, the crucial question is as to what was the purpose for which the premises were let out. As far as the first category of cases mentioned above, where there is a tenancy agreement expressly providing a restrictive covenant regarding the use, it appears to me that the agreement itself would be conclusive of the question, unless a subsequent modification of the agreement by common consensus of the parties has been pleaded. However, difficulties arise in determining the question in case there is a formal agreement of tenancy, as in the present case, where there is no express provision with regard to the use of the demised premises and in cases where the tenancy is by an oral contract without there being a written instrument incorporating the terms of tenancy. In my view the first principle is that in its nature the provision under construction, referring as it does to a restrictive covenant which may result in forfeiture of the tenancy rights, has to be strictly construed. In Levermore and another v. Jobey (1956) 2 All. ER 362 the Court had to construe the provisions of an English Statute and the question was whether the demised premises were let only for business purpose or any portion of it was let as a dwelling house separately. There was a deed incorporating the terms of the lease positively stipulating that the demised premises shall be used and occupied "for the trades or business of a newsvendor, stationer, bookseller, toy merchant and tobacconist only." The contention before the Court was that the portion of the demised premises apart from the shop was liable to be used as a dwelling house. In this connection Jenkins, L.J., summarised the following principles for determining the question: "This question has been many times before this Court, and it has been laid down that first thing that must be looked at in considering it in any particular case is the formal lease or tenancy agreement, if any, by which the letting was created. If from the provisions of that lease or tenancy agreement it appears that the premises were let on terms excluding their use for residential purposes, then the matter is concluded against the tenant notwithstanding the use to which the premises may in fact have been put unless on the facts it can be shown that by the common consent of the tenant and the landlord the provision excluding use for residential purposes was relaxed, so as to create a new or modified letting of the premises which, as modified, constitutes a letting of them for residential purposes. If there is no formal lease or tenancy agreement, or any document there may be is silent on the question of user, then it is legitimate to look at what was actually done, to look at the purpose for which the premises were in fact used with the assent of the landlord, in order to ascertain whether they were let as a separate dwelling or were let for business purposes." It is important to note that the question in the said reported case was also whether the premises were let for residential or commercial purpose, as in the two cases from this Court referred to hereinabove. In such cases in the contingency of there being an absence of provision in the tenancy agreement, the nature of the premises would of course afford a very good test with regard to the intention of the parties, as to the purpose for which the premises were let. In other words if the issue is whether the premises were let for residential or commercial purpose, in the absence of a provision in the agreement of tenancy, the nature, lay out and the general plan of construction adapted to either purpose would furnish extrinsic evidence with regard to the purpose for which the premises were let, because a house is obviously built to provide all the amenities and conveniences of living whereas a commercial premises is generally not equipped with all such conveniences, like, for instance, bath rooms or bedrooms or kitchen. The question that arises for determination in the present case cannot be decided with reference to the nature of construction of the premises in dispute. It is common knowledge that no peculiar structure is necessary for a building to be used as "godown" and ordinary shops are generally used as godowns. In any case there is no evidence in the present case that the premises were so built as to be incapable of being used as a godown. Therefore, in this case the subject-matter of tenancy being a shop does not necessarily lead to the inference that the purpose, of letting was that the premises be used only as a shop as understood in the literal sense. In (49 Am. Jur. 2d "Landlord and Tenant") at p.167 the following general principles for construction of lease are mentioned: "As in the case of contracts generally, the cardinal principle in the construction of leases is to give effect to the intention of the parties as manifested by the words used: A Court is not at liberty to read into a lease a meaning which the parties did not intend, or which they did not express in the language used, and should if possible, in interpreting the language used, give each word or phrase its ordinary meaning, in a business sense, at the time the lease was made:" On the same subject at page 170 the authors have observed as under: "The prevailing general rule supported by nearly all the authorities on the subject is that a lease is ordinarily to be construed more strongly against the lessor in case of ambiguity and in favour of the lessee, particularly where the lease was prepared by the lessor:' In Volume 51 Corpus Juris Secundum at p.851 the authors have referred to the following important rules of construction of a lease: "The language of a lease, or of a clause thereof, which is clear ordinarily cannot be extended by implication or intendment. It is not the province of the Court, by construction, to change or make a new contract for the parties to a lease, or to supply material stipulations or conditions, or to create terms or conditions which contravene the agreements of the parties." The rule is also laid down at p.172 of 49 American Jurisprudence 2nd, that when a lease is reduced to writing the law presumes that the writing contained the whole agreement". So that under ordinary circumstances extrinsic facts are not considered in the construction and interpretation of a written lease which is complete in itself. The important terms of agreement which required to be noticed are as follows:-- From the aforesaid provisions it is clear that the word `dukan' and the word `makan'' have both been used in connection with the same building. Therefore, it is quite clear that the word `dukan' is written for the purpose of description of the premises only and it has no reference to the intended used or purpose for which the premises were being let. At any rate in view of the foregoing principles for construction of lease agreement in the absence of a positive restriction on the use of the premises as a godown, the agreement must be construed in favour of the tenant, who could use the premises reasonably for any trade, business or allied purpose. Condition No.2 referred to above, which has not been taken into consideration by the High Court although it is very material and relevant to the use of the premises, indicates that any kind of goods could be kept in the shop as long as the shop was not damaged. According to the evidence on record the shop is being used as a godown for stocking rice and foodgrains. The landlord has admitted that the shop was given on commercial basis but no particular business was specified in the agreement which was to be done by the tenant. I am unable to agree with the learned Judge in the High Court that the use of the premises as a godown would result in deterioration of the building as a godown mostly remains closed. There is also no foundation in the evidence for the conclusion reached by the learned Judge that if the landlord had been informed at the time of letting out the premises that the tenant intended to use the same as godown he would not have agreed to let them out for such purpose. This conclusion is speculative and unwarranted. On the other hand, it would be reasonable to hold that if the landlord wanted that the premises be not used for any particular business or purpose, he should have made an express provision in the agreement which was drawn up between the parties with so much care, as to incorporate a term to the effect that the tenant shall not keep any goods which would cause damage to the building of the premises. For the foregoing reasons I have reached the conclusion that the landlord has failed to discharge the onus of proof that the tenant had used the premises for a purpose other than the one for which the premises were let. In the result I would accept this appeal and set aside the order of eviction passed by the Rent Controller and affirmed by the High Court, with no order as to costs. NASIM HASAN SHAH, J.

This case has been referred to me because there was a difference of opinion amongst the two learned Judges who heard this appeal. I have heard the learned counsel for the parties and perused the record. Before recording my opinion I may very briefly give the facts which form the background of the matter. In this case the respondent-landlord filed a petition seeking ejectment of the appellant herein in respect of Shop No.5 situated on the ground floor of House No.6/27-A, Commercial Area, Liaquatabad, Karachi, who is his tenant. The ejectment was sought, inter alia, on the ground that the tenant had converted the shop into a godown. On this point, the issue that was framed was the following: "Whether the opponent has converted the said shop into a-godown and used it for the purpose other than agreed between the parties." The Rent Controller decided this issue in favour of the landlord and his fording was affirmed on appeal by the High Court. Resultantly, an eviction order under section 15(2)(iii)(b) of the Sindh Rented Premises Ordinance, 1979 which renders a tenant liable to eviction if he has without written consent of the landlord "used the premises for the purpose other than that for which it was let out" was passed against the tenant. The tenant appealed to this Court by its leave and in support of the appeal it was urged on behalf of the tenant (appellant herein) that since no specific purpose was mentioned for the use of the shop in the tenancy agreement, the user of the shop as a godown did not amount to a change of the purpose for which the shop was taken on rent by him. On the other hand, the respondent/landlord contended that the premises having been rented out as a shop, in the absence of any contrary purpose mentioned in the tenancy agreement, the appellant could use the shop for its normal purpose only i.e. for carrying on business transactions and, accordingly, the conversion of the shop into a godown amounted to breach of sub-clause (b) of clause (iii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979. Mr. Justice Ajmal Mian agreed with the plea raised on behalf of the respondent but Mr. Justice Zaffar Hussain Mirza took a contrary view holding that the landlord had failed to discharge the onus of proof that the tenant had used the premises for a purpose other than the one for which the premises were let out. fie was, accordingly, inclined to accept the appeal. Hence, this reference to a third Judge. Broadly speaking, the situation wherein the provisions of section 15(2)(iii)(b) of the Ordinance can become attracted are: (i) where there is a tenancy agreement which expressly provides for the restriction on the use specifically; (ii) where there is an agreement of tenancy but it does not make any provision restricting the use of the premises specifically; and (iii) where there is no written agreement at all. The present case falls under the second category. because admittedly there is an agreement of tenancy but there is no specific covenant restricting the use of the premises to any particular purpose. As for this category of cases the question will, of necessity, have to be decided from the terms of the agreement entered into by the parties and the surrounding circumstances appearing in the pleadings and the evidence led at the trial which throw light on the intention of the parties on the question whether the purpose of the tenancy was indeed to restrict the user of the premises to any particular use. The learned Single Judge in the High Court has attended to this question and found that the tenant was guilty of conversion of the demised premises by putting it to a use other than for which it was let out. In this connection, he observed as follows: "I am of the opinion that where a demised premises is identified merely as a shop then the same can be used only as shop, but if the said premises came to be used later on exclusively as godown, then that would tantamount to a change of user. Similarly, if such a demised premises was put to use exclusively as a godown or shop- cum-godown (for the moment assuming that the expression `godown' connotes a building that is used for the purpose of only stocking provisions therein) then that would tantamount to the change of user. The reason being that when the premises is used as a shop, it is being put to constant use by the tenant which by implication ensures its proper upkeep like timely repair, timely white-washing, but when premises is used as a godown, which is merely used for dumping goods therein, such upkeep may neither be possible nor by implication envisaged as such a godown remains, mostly closed, while shop remains mostly open. The premises used as a godown are bound to deteriorate and a landlord if had been informed at the time of entering into tenancy agreement that the tenant intended to use the demised premises described as a shop, he might not have agreed to enter into the said agreement. Hence when the demised premises are used for a purpose to which having regard to its description as shop "godown" etc., the landlord may not have intended, had the said different purpose, which the tenant had in mind, been made known by the tenant to him, then the landlord may not have agreed to let out the said shop for that purpose. The word "shop" does not mean or include a godown for the purpose of section 15(2)(iii)(b) of the Ordinance and the, premises, which are mentioned as a shop in the tenancy agreement cannot without the written consent of the landlord, be converted into godown for storing rice. The words "shop" and "godown" are distinct having distinct and separate meanings which are well understood in this part of the country and for that matter, in dictionaries meanings of the words `shop' and `godown' are given as these are understood in Pakistan:' Mr. Justice Ajmal Mian agreed with the above conclusion of the learned Judge in the High Court and himself referred to several decisions of this Court as well as to the meaning given to the terms "shop" and "godown" in established judicial and other dictionaries and on their basis held that where the agreement of tenancy gives the description of the premises namely that it is a house or a shop, the said premises are presumed to be used for the purpose for which such premises are normally used. Mr. Justice Zaffar Hussain Mirza, on the other hand, was of the opinion that the crucial question requiring determination, in such matters, is to ascertain as to what was the purpose for which the premises were let out. In this connection, he opined that in those cases were a tenancy agreement expressly provided a restrictive covenant regarding the use, the agreement itself would be conclusive of the question. However, in cases where there was a formal agreement of tenancy but no express provisions with regard to the use of the demised premises, it is necessary to look at the purposes for which the premises were let out. His Lordship went onto add that-- "the question that arises for determination in the present case cannot be decided with reference to the nature of the construction of the premises in dispute. It is common knowledge that no peculiar structure is necessary for a building to be used as "godown" and ordinary shops are generally used as godown. In any case, there is no evidence in the present case that the premises were so built as to be incapable of being used as a godown. Therefore, in this case, the subject-matter of tenancy being a shop does not necessarily lead to the inference that the purpose of letting was that the premises be used only as a shop as understood in the literal sense:' He also reproduced the following terms of the agreement: And observed: "From the aforesaid provisions it is clear that the word' dukan' and the word `makan' have both been used in connection with the same building. Therefore, it is quite clear that the word `dukan' is written for the purpose of description of the premises only and it has no reference to the intended used or purpose for which the premises were being let. At any rate in view of the foregoing principles for construction of lease agreement in the absence of a positive restriction on the use of the premises as a godown, the agreement must be construed in favour of the tenant, who could use the premises reasonably for any trade, business or allied purpose. Condition No.2 referred to above, which has not been taken into consideration by the High Court although it is very material and relevant to the use of the premises, indicates that any kind of goods could be kept in the shop as long as the shop was not damaged. According to the evidence on record the shop is being used as a godown for stocking rice and foodgrains. The landlord has admitted that the shop was given on commercial basis but no particular business was specified in the agreement which was to be done by the tenant. I am unable to agree with the learned Judge in the High Court that the use of the premises as a godown would result in deterioration of the building as a godown mostly remains closed. There is also no foundation in the evidence for the conclusion reached by the learned Judge that if the landlord had been informed at the time of letting out the premises that the tenant intended to use the same as godown he would not have agreed to let them out for such purpose. This conclusion is speculative and unwarranted. On the other hand, it would be reasonable to hold that if the landlord wanted that the premises be not used for any particular business or purpose, he should have made an express provision in the agreement which was, drawn up between the parties with so much care, as to incorporate a term to the effect that the tenant shall not keep goods which would cause damage to the building of the premises." I am afraid I cannot agree with the above view. It is not disputed that the premises were let out as a shop. The lease deed makes this fact abundantly clear. This fact is borne out not only by reference to clauses quoted already but also by reference to various subsequent clauses of this document; for instance clause (1) states: and again in clauses (3) and (6) it is said: It is also relevant to refer to pleadings of the parties which too makes the situation quite clear. Para. 2 of the ejectment application (filed by the respondent) avers as follows: "

2. That the said shop was let out to the opponent for the specific business of running a provision store and the opponent had signed the tenancy agreement in terms of shop premises and the applicant always issued the receipts of the Shop No.5 to the opponent but the opponent has deliberately violated said term and has converted the said shop into a godown, hence has evidently impaired the value and utility of the said shop premises as the opponent used the premises for the purpose other than that for which it was let out." The appellant herein, in his written statement, in answer to this averment replied as follows:- "

2. That the contents of paragraph No.2 of the application are denied. It is denied that the said shop was let out to the opponent for any specific business, and no such condition has been mentioned in the lease agreement dated 1-4-1972. The opponent is using the said shop for the purpose for which it was let out to the opponent. The opponent has neither violated any term of the said lease agreement nor has converted the said shop into godown and nor has impaired the value and utility of the said shop. The said premises are being used since commencement of the tenancy as shop-cum-godown." From the above recitals it is clear that the tenant admits that the premises were let out to him as a shop and that it was for this purpose that the premises were let out to him. Furthermore, he asserts that he has not converted the said shop into a godown. Though he does go on to say that the premises since the commencement of the tenancy were used as a shop-cum-godown. But in his cross-examination he has admitted that the premises are referred to in the lease agreement as a shop and not as godown. He also admits that he was at present running a godown in the premises. Mr. Justice Zaffar Hussain Mirza has observed that as the premises was let out for a commercial purpose they could, therefore, legitimately be used as a godown. But I find that in fact the premises were let out as a "shop" and there is nothing to indicate that they were let out generally for commercial purposes. If they have been let out as a shop they could not, therefore, be used for any other purpose but as a shop, without the written consent of the landlord and the fact that the tenant had started using them as a godown rendered him liable to eviction. Mr. Justice Ajmal Mian quoted a large number of authorities to show that a godown is not included in the definition of the "shop". The reason being that a godown is merely a storehouse or a warehouse, while a shop is a. place where business transactions are conducted every day. Indeed the learned counsel for the appellant was unable to cite a single authority or refer to even one definition in any dictionary where the meaning of the word "shop" has been stated to include, inter alia, a godown. Consequently, the use of these premises as a godown, although they were let out as a shop, did amount to using the premises for a purpose other than that for which they were let out and in doing so the tenant fell within the mischief of section 15(2)(iii)(b) of the Sindh Rented Premises Ordinance, 1979. Accordingly, I am inclined to agree with the view taken by Mr. Justice Ajmal Mian in this case, namely that the tenant's appeal is liable to dismissal and the judgment of the High Court entitled to be affirmed. I order therefore, that this appeal shall stand dismissed. However, as a ticklish question involving the interpretation of the provisions of the Ordinance was involved, the parties will be left to bear their own costs. In accordance with the opinion of the majority this appeal is dismissed but the parties are left to bear their own costs. M.B.A./H-153/S Appeal dismissed.