MRS. GOOL Versus MRS. NASIM A RAHMAN

ORDER

KARAM ELAHEE CHAUHAN, J .‑The dispute in this case is about the ground floor of a double storeyed bangalow bearing No. 167‑C/111, P.E.C.H.S. Karachi. The entire ground floor of this bungalow is on rent with the petitioner Mrs. Gool (hereinafter called the tenant). Mrs. Nasim A. Rahman (hereinafter called the landlady filed an application for eviction of the tenant under section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 on the ground of need for personal residence pleading that the tenant had taken the premises on rent "for living in a part of the premises and for housing a Montessori Institution for small kids in the remaining portion of the bungalow, if and when she liked." As a matter of fact the relevant clause of the lease agreement stated the object of lease granted by the landlady or taken by the tenant was "to use the permits for residential or for running a School for children which shall be held in the forenoon only. Any class for adult girls may, however, be held in the afternoon".

2. The learned Rent Controller accepted the application of the landlady and directed eviction of the tenant‑petitioner by means of his Order dated 13‑3‑1978. .

3. The tenant filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Karachi, on 20‑1‑1979.

4. The tenant‑petitioner filed a Second Appeal being 11 Appeal No. 90 of 1979 which also met the same fate and was dismissed by a learned Single Judge of the Sind High Court by his order dated 17‑3‑1979.

5. The tenant‑petitioner has come up in a petition for special leave to appeal against the same to this Court.

6. Learned counsel for the petitioner has referred us to the definitions of the words "holding", "non‑residential building", "residential building" and "scheduled building" as contained in clauses (a) (d) and (h) of section 2 of the Ordinance. He also referred to sections 11 and 13 of the Ordinance and has argued that the nature of the property as to whether it was a residential building or a non‑residential building has to be seen with reference to the purposes for which it is let. Projecting his argument further, he submits that if a property, from the point of view of the aforesaid classification, falls under the category of "non‑residential building" then the landlady cannot get the same vacated from his tenant except when she "requires it in good faith and for her own use or for, the use of her male children" as laid down in section 13 (3) (a) (ii) of the Ordinance. He submits that the word "use" in the aforesaid provision of law should be similar to the nature of the property. If it is a "non‑residential building" then use should also be for a "non‑residential purpose." In the instant case, since the property was being used as a school namely for "non‑residential purpose" its eviction for the personal residential use of the landlady was no ground to evict the tenant. He has, in support of this plea, referred to Abdul Bari v. Khadim Hussain (P L D 1978 S C 78), Jamil Ahmad v. Mst. Sultana Jahan Begum (P L D 1974 Kar. 319) and Muhammad Bashir v. Sultan Mahmud Khan (P L D 1975 Lab. 254).

7. As against the above, learned counsel for the caveator landlady has submitted that firstly, on factual plane the property was let for both purposes, i.e. residential or commercial and from that point of view, if the tenant had the option to use it for any purpose, correspondingly the landlady also had the option to seek her eviction for any of these purposes. Secondly, the clause of the lease‑agreement above referred to, read with the pleadings of the parties and the attending evidence showed that it could be used for both the purposes together at one and the same time, and, therefore, from that point of view as well, the ejectment application for her residential use was not defective because none of the aforesaid form of use was exclusive of the other but was conjunctive. He further submitted that in this case the property was in fact also being used for both the residential as well as non‑residential purposes by the tenant. Thirdly, he argued that the construction and interpretation which was being put on the relevant provisions of the Ordinance by the petitioner‑tenant was not correct because it will have the effect of changing the character of a property for all times to come once it was let out to a tenant use for instance of a particular nature, apart from restricting the right and liberty of the owner to use it in such manner as he may like to do in future. He submits that this was not the intention of the Legislature and the arguments of the tenant‑petitioner were not correct. Fourthly, he submitted that words "for his own use" were not of any restrictive character because the manner of "use" was left open for the landlord and he could not be restricted to make only a particular type of "use of his own property. Similarly the aforesaid words do not exclude "use" of property by residing therein personally because when a landlord resides in his own property, it cannot be said that he is not using it or that the property is not in his use. Occupation or keeping residence in a property is as much "his own use" of landlord as other type of use e.g. "by doing business therein".

8. In our opinion the points raised by both sides are of substantial nature which are likely to affect a large number of cases of similar type. A Leave to appeal is granted. Security Rs. 1,000. Appeal may be heard on the present record but parties will, however, file concise statements and such relevant documents from the record on which they rely. Appeal to be heard very early preferably immediately after the re‑opening of the Court, after summer vacations. Status quo in the meanwhile.

S A.H. Leave granted.