1988 PLP 1696 (CLC)

Ch. Mushtaq Ahmad Khan for Petitioner. Awan Muhammad Hanif Khan for Respondent. Nemo for Respondents Nos. 2 and

3. Date of hearing: 30th January, 1988. This Constitutional petition assails the orders, dated 16‑1‑1983 and 29‑11‑1984, passed respectively by a learned Rent Controller, Sialkot and the learned Appellate Authority, i.e. a learned Additional District Judge, Sialkot.

2. The dispute pertains to a building situate in Mohallah Ahmadpura Sialkot City, which belongs to respondent No.l (hereinafter referred to as the respondent). He rented out that premises tb the petitioner through a rent deed, dated 27‑8‑1973 at the monthly rent of Rs.175. The petitioner installed looms in these premises. Needless to add that previously . the premises were being used by a former tenant for manufacturing of surgical goods.

3. On 26‑6‑1975, the respondent served a notice on the petitioner requiring him to vacate the demised premises as the same were needed by the landlord for his residential purposes. The petitioner sent his r reply to the notice contending that the. tenanted premises being a non‑residential building * could . not be .got vacated for residential purposes.. The respondent, however, filed an ejectment application on .3‑12‑1979, seeking' eviction of. the petitioner on the grounds of default in payment of rent; having caused damage to the tenanted premises and his bona fide need for personal residence. The petitioner, of course, resisted the application and the learned Rent Controller, after recording the parties, evidence and after hearing them, came to the conclusion that the petitioner was defaulter in payment of rent and that the demised premises were not a factory and, therefore, the same could 'be got vacated by the landlord for personal residence. He, consequently,, ordered the eviction of the petitioner vide order, dated 16‑1‑1983.

4. Feeling aggrieved, the petitioner preferred an appeal and the learned Appellate Authority viz. the learned Additional District Judge, Sialkot, dismissed the appeal vide order, dated 29‑11‑1984. He, however; found that ‑ the alleged default in payment of, rent was not proved but as the premises were. not a factory, therefore, they could be got. vacated for personal residential need of, the landlord. Thus the present Constitutional petition.

5. It has‑ been urged on behalf 'of the petitioner that while the constitutions jurisdiction of this Court could not ordinarily be invoked to challenge the finding of fact recorded "by the learned Rent Controller and the learned Appellate Authority that the demised premises were not a factory, yet the impugned judgments were wrongful and illegal inasmuch as both the Tribunals below have recorded a positive finding to the effect. that the tenanted premises were non‑residential premises being utilized for commercial purposes. It has further, been urged that non‑residential premises could not legally be got vacated by the landlord for hip personal residence. In support of this contention, reliance has been placed on the judgment of ‑Sind High Court in re: Jamil Ahmad.v. Mst. Sultana Jehan Begum PLD 1974 Kar.

319. In this case, it was held that notwithstanding good faith, a non‑residential building could not be directed to be given ‑in she possession of the landlord for residential purposes of his own or the limited category f his male, children and vice versa. In Muhammad Bashir v. Sultan 1uhammad Khan P L D 1975 Lah. 254 it was held that if a portion of building islet out to the tenant for non‑residential purposes, it is covered by the .definition of non‑residential building, and cannot be directed to be vacated for the use by the landlord for residential purposes. In Gul Afzal Khan v. Muhammad Hanif Arif P .L D 1979 398, it was held that if the landlord required non‑residential building for residential purposes, section 13 of the Rent Restriction Ordinance, 1959, cannot help him. Similarly view has been expressed Sabir, Hussain v. Munir Malik P L D 1983‑Kar.

414. In. Muhammad Hafeez and another v. Muhammad Azeem and 9 others 1984 CLC. luetta 1083, it has been ruled that shops which' were" being used for non‑residential purposes could not be directed to be vacated for use for residential purpose by the landlord. The learned counsel for the respondent maintained that the demised premises were factually , residential ones Although the petitioner had placed some wooden looms over there and also carried out his business of printing the cloth in those premises, nevertheless, he also resided in the premises and tethered his cattle therein. In support of his contention, he has referred to the testimony of the petitioner while appearing as his own witness before the learned Rent Controller. In that statement, he deposed that he also resided in a part of the premises and tethered his cattle over there as well. He has also placed reliance on Agricultural Development Bank of Pakistan v. Sh. Muhammad Ayub 1984 C L C 1696 wherein it has been ruled that where the demised premises were part and parcel of building used for composite purposes the same could not categorized as non‑residential building and that under section 11 of the Rent Restriction Ordinance, 1959, a residential building was prohibited to be converted into a non‑residential building without the permission of Rent Controller while there was no restriction on converting a non‑residential building into a residential one.

7. A photo copy of the plan of the demised premises stands annexed to the under consideration writ petition as Annexure 'B/1'. A perusal of this plan indicates that there are four big rooms in the demised premises and a compound. There are also four shops forming part of the same house, although they are not included in the tenanted premises. The door of these shops open in the lane. It has come on the records that prior to the tenancy of the petitioner, the demised premises were in occupation of Messrs T.Z. Surgical. The petitioner has installed wooden looms through which he manufactures bed sheets and also carries out the business of printing of cloth. The petitioner has also employed 8 to 10 workmen over there. The petitioner, of course, has conceded that he also lives in the premises and tethers his cattle over there. It has been sufficiently established that the tenanted premises were primarily being used by the petitioner for commercial purposes. Even prior to his tenancy, the said premises were occupied by Messrs T . Z . Surgical as factory. In the rent note (Annexure 'A') whereby these premises were rented by the petitioner, the premises have been described as 'Karkhana' (Factory) and not as a residential house. The mere fact that the occupant personally resides in such non‑residential premises or tethers his buffalo or a cow in the compound of the said premises will not render the non‑residential) premises as residential ones. As already observed, the learned Rent Controller as also the learned Appellate Authority have come to the conclusion that the premises in question were commercial ones but not a factory. The commercial premises viz. non‑residential premises cannot be got vacated by the landlord on the ground of bona fide personal need for residential purposes as has been held in the authorities quoted above.

8. In the light of the foregoing conclusion, the writ petition is allowed and the impugned orders are, therefore, declared to be illegal and without lawful authority. There shall be no order as to costs. H.B.T./M‑679/L Petition allowed.