P L D 1961 (W (PLP)

5. The first contention raised on behalf of the appellant is that the building is a scheduled building and that the landlord could not apply under subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, (hereinafter called the Ordinance) unless he required it for use as a scheduled building, and as he requires it for the purposes of setting up crockery business, the order of ejectment is illegal and contrary to the provisions of the Ordinance. The argument is that as the appellant had a Jarrah's business in the shop, it could only be got vacated for purposes of having a Jarrah or other avocation speci fied in the Schedule and for no other purpose, that is to say, it could not be got vacated for establishing a crockery business. which the landlord intended to set up in the building. It is further contended that the application for ejectment was not made for a bona fide purpose and that, in any case, as the respondent had obtained possession of an adjoining shop, the appellant was pro tected from ejectment by reason of the second proviso to subsec tion (3) of section 13 of the Ordinance.

6. A "scheduled building" is defined in clause (h) of section 2 of the Ordinance as a residential building, which is being used by a person engaged in one or more or the professions specified in the schedule to the Ordinance, partly for his business and partly for his residence. The schedule mentions lawyer, architect, dentist, engineer, veterinary surgeon and medical practitioner, including practitioner of indigenous system of medicine. It is contended that appellant, as a Jarrah, falls within the category of medical practitioner i.e., a practitioner of indigenous system of medicine. The Rent Controller, as well as the appellate authority, came to the conclusion that he was a barber and not a medical practitioners as contemplated by the Ordinance. In this connection reliance, was placed on the lease deed Exh. P. 2, executed by the appellant on the 24th of October 1958, in favour of the landlord, in which he described himself as a barber by profession and not as a Jarrah. This is a finding of fact, which is justified on the face of the record and I also agree with this finding. Even if I had held that he was a Jarrah, I would not have been inclined to include him in the category of `medical practitioner of indigenous system of medicine' for a Jarrah does not practise any system of medicine. I, therefore, A agree with the finding of the Rent Controller that the building in dispute is not a scheduled building.

7. It has been accepted by the Rent Controller and the appel late authority that the landlord requires the premises for the bona fide use and needs of himself and his family. It has been establish ed that the landlord has three sons, of whom two, who are married, have ten children and that they require the premises not only for their residence but also for opening a new business of crockery, as the rented shop in their possession is too small to provide them the necessary income for the maintenance of their family. This is again a finding of fact, which is justified on the evidence and the circumstances of the case. The shop in his possession was obtained on lease by him some 30 years ago, and since then his family has grown manifold and their need for separate residence as well as for enhanced income to support the family cannot be doubted. In these circumstances, the landlord is entitled to apply for the ejectment of the tenant on the ground that the shop in question is required in good faith for his own use and the use of his male children under subsection (3) of section 13 of the Ordinance.

8. As it has been held that the building is not a scheduled building, it is not really necessary to consider the following contentions raised by the learned counsel for the appellant, but I may as well deal with them. The first contention is based on decision of Kaikaus, J. in Dr. Aziz Rasul v. Khawaja Mushtaq Ahmad (P L D 1954 Lah. 366), that a landlord cannot apply under subsection (3) of section 13 in respect of a scheduled building unless he requires it for use as a scheduled building. This conclusion was arrived at by Kaikaus, J. for the following reasons :‑ "The phrase `scheduled building' after its definition in section 2 occurs only in section 13 (I am dealing with the Act of 1949). If the Legislature has taken the trouble of creating a separate class of buildings and has been provided a special schedule for this purpose, it must have done so with some object. It cannot have defined `scheduled building' merely for the sake of definition. I have gone through the whole Act and I can find no object for this definition except that of protecting such a building from being taken by the landlord for purpose other than use as a scheduled building. If I do not accept the interpretation put upon this phrase by learned counsel for the petitioner the result would be that there will be a superfluous definition and schedule existing in the Act with no purpose at all. It appears to me that intention of the Legislature in classifying certain buildings as scheduled buildings was to afford a special protection to members of certain professions."

9. The provisions of the Ordinance are somewhat different from the West Punjab Urban Rent Restriction Act of 1949, which were interpreted by Kaikaus, J. Subsection (3) of section 13 of the Ordinance enacts as follows :‑ "(3) (a) 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 for the occupation 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 for the use of any of his male children ; (b) be or has 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 such‑paragraph (i) or sub‑paragraph (ii) he shall not be entitled to apply again under the said sub‑paragraphs 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 the Controller may give the tenant a reasonable 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." With the utmost respect to the above conclusion, I am unable to agree with the first contention that a landlord cannot apply under subsection (3) of section 13 of the Ordinance, for obtaining possession of a scheduled building, unless he requires it for us as a scheduled building. The main intent and object of the Urban Rent Restriction Ordinance is to control and regulate the eject ment of tenants by the landlords, and not to take away the other rights or superior right of the landlord to use the building for his own requirement. The Ordinance no doubt expressly restricts conversion of a residential building to a non‑residential building except with the permission of the Rent Controller, but there is no other restriction on his own user of the building. The other express restriction is against the 'tenant using a building for a purpose other than that for which it Was leased. There is no express provision in the Ordinance prohibiting the use of a scheduled building otherwise than as a schedule building. Such a restriction cannot be inferred by mere implication, as it affects rights in property of a landlord and such a restriction cannot be enforced or imposed without express provision. By the mere use of word `scheduled building' and its definition it cannot be inferred that it was intended that it cannot be used otherwise. There could be no difficulty in making an express provision, if it was so intended. It is plain that the word `scheduled building' has been used in the Ordinance for a residential building which is also urged by certain class of persons mentioned in the schedule for their profession. In that context `scheduled building' was evidently defined as distinguished from residential and non‑residential building, for it is neither purely residential, nor non‑residential. The words `scheduled building' have been used in one of the section of the Ordinance and if it has been defined, the definition . is not without purpose. `Scheduled. building' has been placed in .the same category as non‑residential buildings and rented lands, and the conditions and provisions for ejectment from a `scheduled building' are the same as in respect of a non‑residential building or rented land. Thus no peculiar protection attaches to a scheduled building. If a non‑residential building or rented land ‑can be put to other use and a non‑residential building can 'be converted into residential building by a landlord, it follows that a scheduled building can also be used by a landlord as a building other than a scheduled building. Consequently, I .hold‑, with all respect, that there is nothing in the Ordinance which debars the Rent Controller from putting Haji Salamat Ullah in possession, even if it is a scheduled building, and, by his occupation, it, will snot be used as a scheduled .building.

10. Learned counsel for the appellant also argues' secondly, relying on clause (ii) (b) of subsection (3) of section 13 of the Ordinance, that Abdul Ghaffar could not be ejected'‑because the 'building was not required by the landlord for the‑ purposes‑of the need of his business, ‑ at ‑the' time. The argument is that for his business at the time; that in, his existing leather business; he was occupying a shop and godown, which were suitable‑for the purposes of his business at the time, and thus he could not apply for being put in possession of the disputed building and‑ the need of the building for setting up crockery business cannot be deemed to be his requirement of his business at .the. time: In substance, the contention is that the business need for which a building is needed by a landlord must relate to the business, being carried on at the time and not in connection, with a prospective, .business intended to be set up. In my view, however, the true construc tion of the provision is that if a landlord has a bona fide need of the building at the time for purposes of his business, whether existing for the time being or imminently to be set up, and if h is not in occupation of another building suitable for his need, h may apply to the Rent Controller for obtaining possession of the premises and the Rent Controller has to make an order that the landlord be put in possession, if he is satisfied about the bona fide of his claim. The provision is so enacted that it provides that a landlord may apply for his being put in possession, if he require it in good faith for his own use or for the use of any of his male children, and he is not occupying any other building suitable for his needs at the time. The ‑ need is referable to the time a which‑he applies, but is not confined to the need of his existing business at the time. A genuine need may exist in relation to a new business which a landlord wants to set up immediately, either for himself or for his male children. This is the case here, and the landlord has a genuine need of the premises, partly‑for‑his residence and partly for setting up of crockery, business, for himself or his male children‑ His requirement of the building is his need at the time in relation to business. This contention also has no force.

11. The third contention that the landlord having obtained possession of an adjoining shop from Master Abdur Rahman, he cannot obtain its possession because of the second proviso to subsection (3) of section 13 is also of no avail to the appellant. It is explained by the learned counsel for the respondent‑landlord that as Haji Salamat Ullah was ejected, under the orders of a Rent Controller from a godown in his possession, he has been obliged to use the adjoining shop as a godown. Haji Salamat Ullah carries on the business of leather merchant, and he has obvious need of a godown. If, therefore, he uses the adjoining shop as a godown, it does not follow that he does not require the shop in dispute for the purposes of crockery business, which he and his sons need to set up for augmenting their resources. The second proviso does not apply to the facts of the case, as it only provides that where a landlord has obtained possession of a residential scheduled or non‑residential building, or rented land under the provisions of sub‑paragraph (1) or sub‑paragraph (2), he shall not be entitled to apply again under the said paragraph for 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. The landlord is not applying again, having already obtained possession of a building of the same class under sub‑paragraph (1) or sub paragraph (2). I see no force in this contention also.

12. The building, which is not a scheduled building was being used partly as residential and partly as non‑residential building by Abdul Ghaffar. Haji Salamat Ullah landlord needs the residential portion for his residence and the non‑residential portion for his business. The order of ejectment is in conformity with subsection (3) of section 13 of the Ordinance, and there is no illegality in the order.

13. In view of what I have stated above, I find no force in the second appeal, which is dismissed with costs. K. B. A. Appeal dismissed.