1980 PLP 983 (SCMR)

G. SAFDAR SHAH, J: The petitioner, vide written agreement, dated 22‑8‑1971 got on rent from the respondent House No. 12‑S/2, P. E. C. H. Society, Karachi, at the monthly rent of Rs. 500, as well as the additional amount of Rs. 200 which was agreed to be paid by him every month for the use of fixtures and fittings of the house. The agreement in question was to take effect from 1‑9‑1971 and was meant to last for 11 months and 29 days. The admitted position is that after taking the possession of the suit house, the petitioner commenced in one of the rooms of it, the business of Beauty Parlour by the name "May Fair Beauty Parlour and in that behalf obtained from the then Karachi Municipal Corporation, a licence in the month of May, 1972. After the expiry of the agreed period of tenancy, the ‑respondent served on the petitioner a notice asking him to vacate the house. In reply thereto, the petitioner however, contended that since he was now a statutory tenant he could not be asked to vacate the house. In the month of January, 1973, however, respondent served on the petitioner' another notice to vacate on, grounds, amongst others, that he had converted a part of the house into commercial premises without her written consent. However, since the petitioner refused to oblige her, she filed eviction proceedings against him in the Court of the Rent Controller, Karachi. In the written statement filed by him, the petitioner, amongst others, took up the plea that the additional amount of Rs. 200, which he had agreed to pay to the respondent, was actually meant to allow him to convert room of the house into a. Beauty Parlour, and so he cannot be said to have contravened the terms of the tenancy agreement. Upon the pleadings of the parties, the learned Rent Controller framed in the proceedings various issues ; thereafter recorded the evidence of the parties and in the end rejected the application of the respondent. The learned Additional District Judge, before whom the respondent went in appeal, however, set aside the order of the Rent Controller and allowed her eviction application. In the Second Appeal filed by the petitioner in the High Court, the judgment of the learned Additional District Judge was maintained only on Issue No. 3, as arguments were confined to that issue alone, which runs as under ‑ "

3. Whether the opponent is keeping the Hair Dressing Saloon without the consent and permission of the applicant ?" The learned Judge took the view that "clause (ii) (b) of subsection (2) of section 13 provides that a tenant incurs the penalty of being evicted if he uses the building for purpose other than for which it is leased and he can only set up a plea of justification if there is written consent of the landlord in that behalf. Admittedly, there is no such written consent of the respondent nor is it so pleaded". Having recorded the said finding, the learned Judge reached the conclusion that the petitioner had indeed violated the terms of tenancy, and so he had been rightly ejected by the learned Additional District Judge. In seeking leave to appeal, Mr. Mamoon Kazi, the learned counsel for the petitioner first contended that the respondent in disregard of the require?ment of section 13(2) (ii) (b) of the Rent Ordinance, had taken no plea in the eviction application that the petitioner had used the house "for purpose other than for which it was leased", therefore, the Courts below, as well as the High Court were in error to allow her application. Now this contention urged by the learned counsel is seemingly correct. But under the circum?stances, it is wholly technical. It was pleaded in the eviction application filed by the respondent that whereas the suit house had been let out to the petitioner only for his residential purposes, yet in violation of the terms of the tenancy agreement he converted a room of it for commercial purpose. In point of fact the case before the Courts below, as well as the High Court had proceeded on this basis and it cannot be said that the petitioner had been misled or handicapped in putting up a proper defence. The learned counsel next contended that since only one room of the suit house had been converted by the petitioner to commercial purposes, he cannot be said to have brought himself within the mischief of section 13(2) (ii) (b) of the Rent Ordinance. In that behalf the learned counsel also relied On sub‑clause (d) of section 2 of the Rent Ordinance in which 'non‑residential building' has been defined to mean "a building being used solely for the purpose of business or trade". We are afraid, there is no force in this contention. The requirement of section 13(2) (ii) (b) of the Rent Ordinance is that if a tenant is proved to have "used the building or rented land for purpose other than for which it was leased", without the written consent of the landlord, then he would be liable to be ejected. The expression "building" has been defined in sub clause (a) of section 2 of the Ordinance to mean "any building or part of a building . . . . . .

", therefore, it would follow that by having converted one room of the suit house to commercial purposes, the petitioner had indeed brought himself within the mischief of the said provision of the Ordinance, as admittedly he had done so without obtaining the written consent of the respondent. We were also not impressed with the other contention urged by the learned counsel. It is true that according to sub‑clause (d) of section 2 of the Ordinance, a 'non‑residential building' means "a building being used solely for the purpose of business or trade". But reliance upon the said definition, in so far as the facts of this case are concerned, is misconceived. The object of the said clause seems to be evidently linked with section 11 of the Rent Ordinance in which it is said that "No person shall convert a residential building into a non‑residential building, except with the permission in writing of the Controller". But in a case in which a part of residential building has been converted to commercial use, by a tenant without the written consent of the landlord, the case would be covered under the aforesaid express provisions of section 13 of the Ordinance,, and consequently he would be liable to eviction. The fact that in this case the petitioner had indeed converted one room of the residential house in his possession for commercial purposes without the written consent of the landlord, evidently he had brought himself within the mischief of the said provision of the Ordinance, and so had been rightly ejected. We are also not impressed with the contention of the learned counsel that the amount of Rs. 200 which the petitioner agreed and went on paying to the respondent was actually meant to grant him permission to convert a room of the suit house for commercial purposes. In the first place, there is no such evidence on the record as noted by the High Court, and in the second place no such agreement could be pleaded or proved in violation of the expressed terms of the written agreement. This petition, therefore, fails and is dismissed; However, in view of the facts and circumstances of the case, four months' time is granted to the petitioner to vacate the suit house for which period, however, he would continue to pay rent to the respondent. Petition dismissed.