MUHAMMAD BASHIR Versus SULTAN MAHMOOD

This is a tenant's appeal against the order of his eviction from the ground floor of property No. 1 Baij Nath Street, Dhani Ram Road, Anarkali, Lahore passed on the landlord's appeal, by Ch. Muhammad Ilyas, Addi tional District Judge, Lahore, on the ground that the respondent required the premises in question in good faith for his personal use.

2. The respondent who is owner of this property is in possession of the rest of the house and is using it for residential purposes. He let out the disputed portion on the ground floor on the 14th August, 1961, to the appellant on a monthly rent of Rs.

125. The appellant, who is a tailor, has been using this portion as a tailoring shop. According to Exh. P. 2 (rent note) this property was given to the appellant as Proprietor of Bhatti Garments for the use of the Firm.

3. On the 29th April 1963, an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, was filed by the respon dent for ejectment of the appellant on the ground of personal requirement for his own use as well as for the use of his children. It was also pleaded that the appellant had been a source of nuisance to the respondent by working on sewing machines in the premises in dispute not only during the day time but also till late at night. Some allegation of default was also made. This application was contested on a number of grounds which gave rise to the following issues :-

(l) Whether the respondent has been paying or tendering rent regularly to the petitioner ? O. P. R.

(2) Whether the petitioner requires the premises for his bona fide personal use ? O. P. P.

(3) Whether the respondent is a nuisance ? O. P. P.

(4) Whether the respondent is damaging the house in the sense that he has over-loaded the consumption of electricity ? O. P. P.

(5) Relief.

The learned Rent Controller held under issue No. 1 that the appellant was not a defaulter. Since the case of the respondent was that he required this premises for his residence, the learned Rent Controller decided issue No. 2 against the respondent on the ground that the disputed portion was being used for commercial purposes and could not be got vacated on ground of personal use for the purposes of his residence. Issues Nos. 3 and 4 were also decided against the respondent and the respondent's application was dismissed with costs on the 13th July 1965.

4. The respondent filed an appeal against this order which was allowed only on the ground of personal requirement. The learned Additional District Judge reversed the finding on issue No. 2 on the ground that the respondent had fractured his leg and being disabled he required the ground floor in good faith for personal use. Regarding the commercial nature of the property, he held that the property being of a composite nature it is a residential building and the respondent could seek eviction of the appellant from the premises in dispute. In support of this he relied upon P L D 1965 Lah. 185.

4-A. The only point which requires consideration in this case is whether a tenant of a part of composite building which is being used for commercial purposes can be ejected for the reason that the landlord requires that portion for his residence.

5. Section 13(3) of the above Ordinance provides that in the case of a residential building, a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession if he requires it in good faith for his own occupation or the occupation of any of his children and 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 has not vacated such a building without sufficient cause after the commencement of the Ordinance. It further provides that in case of a non-residential building a landlord can apply to the Controller for being put in possession, if he requires it in good faith for his own use or for the use of any of his male children; he or his 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 and he has not vacated such a building without sufficient cause after the commencement of the above Ordinance in the said urban area. The expression "residential building" has been defined in section 2(g) of the above Ordinance as meaning "any building which is not a non-residential building." The expression "non residential building" has been defined in section 2(d) as meaning "a building being used solely for the purpose of business or trade". If only these two definitions are taken into consideration, there can be no doubt that a composite building being a building not used solely for the purpose of business or trade would fall within the definition of "residential building". A difficulty however arises out of the definition of the word "building" in section 2(a) which is as follows :- " 'building' means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godown, outhouses, together with furniture let therewith but does not include a room in a 'sarai', hotel, hostel or boarding house."

The word "building" means even a part of a building let for any purpose. Clearly, therefore, only that part of the building is a building within the meaning of the term in section 2(a) of the above Ordinance which has been let out for any purpose. The portion which remains in. possession of the landlord, although it be part of the building in ordinary parlance, will not fall within the definition of the word "building" in section 2(a). The. words "residential building" will mean, if the whole building is rented out either for residential purpose alone or for partly residential and partly commercial purposes, the whole building and in case only a portion of the building has been ranted out either exclusively for residential purposes or partly for purpose of residence and partly for purpose of business, the rented portion of the building. If the let out portion of a bigger building is not used either solely for residential purposes or partly for residential and partly for commercial purposes but is. utilised only for commercial purposes it will fall within the definition of the expression "non-residential building", while, considering these three definitions. Therefore, the portion of the building which has not been rented out by the landlord and is in his actual possession, cannot be taken into consideration. In determining the nature of the portion in dispute, therefore, any portion of the building in possession of the respondent is to be ignored from consideration.

6. The portion let out to the appellant will form a building by itself under section 2(a) of the above Ordinance and since it is being used exclusively for non-residential purpose, 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. The findings of the learned Rent Controller are, therefore, legally correct.

7. I, therefore, allow this appeal, set aside the order of the learned Additional District Judge and restore the order of the learned Rent Controller. As a difficult question of law is involved in this case, there will be no order as to costs.

K. B. A. Appeal accepted.