KANEEZ FATIMA Versus NASEER

I intend to dispose of these two appeals by this common judgment as they pertain to the same property and raise common question of law.

The appeals are directed against the order, dated 21‑7‑1983 passed by the learned XIIth Senior Civil Judge and Controller, Karachi, declining respondent's application for ejectment on the ground of personal requirement for the reason that the premises in dispute are commercial and not residential, and, therefore, could not be converted into residential from commercial. The learned Rent Controller has not examined the question of personal requirement of the respondent on merits; though the only issue which was framed was on the personal bona fide requirement of the respondent and there was no issue on the ground on which the respondent has been non‑suited.

2. Miss Afroz Ihsanul Haq in support of the above appeal has urged that since the premises in question were part of the quarter, the mere fact that the same were used for commercial purpose would not convert the same into commercial premises in order to attract the prohibition from conversion from commercial into residential and vice versa under the rent laws.

On the other hand Mr. Syed Zaheer Hassan Chishti, learned counsel for the respondent has vehemently urged that since the premises were let out and were used as shops for more than two decades, the same are commercial premises, and, therefore, the learned Rent Controller was justified in dismissing the respondent's application.

3. However, the learned counsel for the parties have no objection if the case is remanded to the learned Rent Controller for examining the merits of the personal bona fide requirement of the respondent. But, before remanding the case, in my view, it will be appropriate to deal with the question, whether the premises in question are commercial premises warranting non‑granting of ejectment application on the ground found favour with the learned Rent Controller. It may be observed that it is an admitted position that the property in question is a residential quarter situated in Malir Colony, Karachi measuring 80 sq. yds. hearing No. C/138/4. It is also an admitted position that there were 3 rooms in the above quarter, two of the above rooms were let out to the present respondent for commercial purposes. The question, therefore, in issue is, whether the use of the above two rooms for commercial purposes for a number of years would alter the character or the nature of the residential quarter.

4. Miss Afroz Ihsanul Haq, learned counsel for the appellant has referred to the following cases in support of her submission that mere user of a residential quarter will not change the nature of the premises:‑

(i) Haji Lai Bux v. Mistry Allahabad, reported in 1980 C L C 984, in which the subject‑matter was a property comprising of a residential accommodation as well as a shop it was held by a learned Single Judge of this Court that the property was composite property and is to be treated as a residential.

(ii) Province of Punjab v. Mst. Noor Bibi and 3 others, reported in 1981 C L C 1082. In the above case Mr. Justice M.S.H. Qureshi (as he then was of the Lahore High Court) dealing with the identical controversy in issue held that originally a residential premises cannot be held to be non‑residential merely because it was being used for non‑residential purpose. Reliance was placed on the case of Raja Qurban Khan v. Begum M.M. Sharif and another, reported in 1980 S C M R 590, in which the Honourable Supreme Court while declining the petition for leave observed as follows:‑

"But nevertheless urged that since the petitioner had been using the suit house, as an hotel, with the tacit approval of the respondents, the same must be held to have acquired the character of a non‑residential building, and so it could not be got vacated for the residence of the respondents. There is no force in this contention for more than one reason. Assuming for the sake of argument that the respondents had acquiesced in the use of the suit house by the petitioner as an hotel, even then it would be insufficient to sustain the said contention urged on his behalf, as under section 13(2)(ii)(b) the petitioner, even if there existed no legal bar in his way, "could not have put the suit house to commercial purposes without the written consent of the respondents, which however, is lacking in this case."

On the other hand Mr. Syed Zaheer Hasan Chishti, learned counsel for the respondent has referred to the case Muhammad Hafeez v. Muhammad Azeem etc., in which the landlord sought ejectment of the tenant from the shop on the ground of re‑construction of the building for his residential purpose. It was held by a learned Single Judge of the Baluchistan High Court that a non‑residential premises used by a tenant exclusively for non‑residential purpose could not be got vacated for the use of the landlord for residential purpose.

5. In my view, the cases relied upon by the learned counsel for the appellant have direct bearing to the point in issue. Whereas, the case cited by the learned counsel for the respondent has no application to the present case for the reason that admittedly the two rooms in question which have been used for commercial purpose are part of a residential quarter and originally the premises were residential and not commercial. I am in agreement with the view found favour with the learned Single Judge of the Lahore High Court that mere user of a residential for non‑residential purpose will not make it a commercial premises particularly in a case in which admittedly the premises are part of the residential unit and were originally constructed for residential purpose as rooms.

6. Since the learned Rent Controller has not discussed merits on the question of personal bona fide requirement of the respondent I would remand the case to the learned Rent Controller with the direction to decide the question of personal requirement on merits and in case any of the parties wishes to produce further evidence, the same may be allowed. The above appeals are allowed with no order as to costs in the above terms.

H.B.T. Appeals allowed.