1993 PLP 1309 (CLC)

2. On the basis of pleadings of the parties, the Rent Controller settled the following issues:‑ (1) 'Whether the petition is not maintainable in its present form? (2) Whether the respondent is a wilful rent defaulter? (3) Whether the petitioner requires the premises in dispute for her personal need for her son in good faith? (4) Whether the respondent has disshaped the premises in dispute? (5) Whether the respondent has violated The terms of rent? (6) Relief.

3. After recording of evidence, the Rent Controller passed an order of ejectment against the appellant vide order dated 9‑12‑1991 on the ground of personal need and causing of damage to the properly. The appellant filed an appeal before the Additional District Judge, Faislabad which has been dismissed vide order dated 20‑10‑1992. Aggrieved of this order, the appellant tenant has filed this SAO.

4. Mr. S.M. Masud, Advocate has appeared on behalf of the appellant whereas Malik Muhammad Azam Rasool, Advocate has appeared on behalf of the respondent.

5. Learned counsel for the appellant has argued that the two Courts below have illegally held that the premises in dispute are required by the respondent for her personal use and occupation and for the residential purposes which was admittedly rented out for commercial purposes and could not have been got vacated for residential purposes. Learned counsel further contends that the respondent has got vacated another premises also for personal use and occupation. Hence, ejectment of the disputed premises on ground of personal need could not have been granted. In support of above argument learned counsel has placed reliance on case of Haji Sharif Ahmad and others v. Suleman 1984 SCMR

28. Learned counsel has further contended that as the premises were being used as "kabar khana" by Abdul Aziz the previous tenant, hence. it cannot be said that the applicant has caused damage to the property in dispute,

6. On the other hand, learned counsel for the respondent has argued that the two Courts below after scanning of evidence have concurrently held that the premises in question arc needed by the respondent for her personal use and occupation and that the property in question has been damaged, therefore, this finding cannot be interfered with in second appeal as there is no misreading or non‑reading of evidence. Learned counsel contends that it is a choice and prerogative of the landlady to decide as to which premises are more suitable for her need. Merely because certain other premises have also been got vacated is not a ground for depriving her of the abovesaid prerogative. Learned counsel further contends that as per law declared m case of Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others PLD 1985 SC 242 there is absolutely no bay' to the ejectment of the residential premises let out for commercial purposes in case the landlady again wants to use the same for residential purposes.

7. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. There is a concurrent finding of fact rendered by the two Courts below that the premises in question are required by the respondent for her personal use and occupation. Learned counsel for the appellant has not been able to point out any misreading or non reading of evidence. It is an established principle of law that occupation of the premises and decision with regard to the suitability thereof is the prerogative of the landlady and, therefore, merely because some other premises have also fallen vacant is not a ground for refusing the ejectment for persual use and occupation of the, lady which need has been found to be bona fide by the two Courts below an also stands established on the evidence produced in this 13 case. Proviso to the provision of section 13 which entitles the tenant to re occupy the premises in case they are not used for personal use and occupation is also a strong circumstance in favour of the bona fides of the landlady who has led evidence in support of her personal need which is quite in line with the pleadings and, therefore, no interference is possible with the finding rendered by the two Courts below on the issue of personal need and damage to the property. Case‑law cited by the learned counsel for the appellant is distinguishable on facts and hence of no help to the appellant. .

8. Argument of the learned counsel for the appellant to the effect that the residential premises let out for non‑residential purpose cannot be got vacated for residential purpose is also misconceived.. Admittedly, the nature of the premises in question is residential. In case it was let out for commercial purpose, it cannot debar the landlady from getting it vacated for residential purpose which is in line with the 'nature of the property. Merely because ex tenant was using it for commercial purpose, real nature of the premises shall not change. Respectfully following the law declared in case pf Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others (PLD 1985 SC 242) wherein at page 251 of the report it has been held as under:‑ "It may be remarked that there is some force in the argument of tie learned counsel for the respondent that the Rent Restriction Law never intended that once a landlord commits a mistake of renting on a part of his house for non‑residential use for earning some additional income at his own inconvenience, he can never seek its restoration to him by evicting the tenant if he on account of chan6ed circumstances genuinely requires it for his use as part of residence. In other words, 'I would be deemed to have become a non‑residential building for times to come and in order to retrieve it he would have to tell a le that he needs it for non‑residential use. Indeed this was not tie intention of the relevant law when enacted. On case, on face only, appears to be laying down a slightly different rule, though in reality it is the same as in the case of Raja Qurban. It s that of Nek Muhammad v. Muhammad Shari and others 1983 SCMR

180. A building was rented out to the tenant as a shop. He subsequently started his residence also in the first floor which was described as Chowbara. The contention raised by the tenant that the demised‑ premises were a residential house and not a shop was repelled on the finding that when rented out the character of Or property was of a shop and not a house. And further that the fact that the tenant used it also for residential purposes would not change the character of the building. Hence, the landlord could seek eviction of the tenant for his personal use of the property in dispute for commercial purpose. This case is also to an extent illustrative of the character of composite building; but as it happened therein the question as to whether the building had residential or commercal character at the relevant time, would depend upon the circumstance; of each case." I hold that the order of ejectment is lawful and the respondent was competent to file ejectment petition on the ground of persona need for use and occupation of the premises for residential purpose in spite of the fact that was let out for commercial purpose. Consequently findings of the Court below on both the issues referred to above are upheld. No other point has been urge( in support of this appeal.

9. Resultantly, I see no force in this SAO and the same is hereby dismissed with costs. However, the appellant is given a period of two month: w.e.f. today to vacate the premises in question. He shall, however, go on paying the agreed rent as per terms of tenancy during this period. I n case he fails to hand over the possession of disputed premises within the stipulated period of time, the landlady shall be at liberty to get possession pf the premises in dispute by executing the order of ejectment passed by the Rent Controller and upheld by this Court. A.A./F‑80/L Appeal dismissed.