NASIM AHMAD Versus Mst. Hajiani KHATOON BAI
This appeal is directed against the order dated 6‑11‑1984 passed by the VIIth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No. 22(7 of 1979 declining the appellant's application for ejectment which was filed on two grounds, namely, default and personal requirement.
2. Mr. Rahmat Ellahi, learned counsel for the appellant has candidly submitted that the appellant wishes to press the ground of personal requirement alone and not the ground of default.
3. In support of the above appeal Mr. Rahmat Ellahi, learned counsel for the appellant has urged that the learned Rent Controller has not examined the merits of the personal requirement but has non‑suited the appellant on the ground that since the premises in dispute was a garage, the appellant could not have applied for personal requirement for commercial purpose. He has further submitted that section 11 of the late West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the late Ordinance) is not a defence to an application under section 13(2) of the late Ordinance.
4. On the other hand Mr. Mubarak Hussain Siddiqui, learned counsel for the respondent has submitted that the appellant could not have applied for personal requirement for business purpose without first getting the garage converted into commercial purpose under section 11 of the late Ordinance.
5. Mr. Rahmat Ellahi in furtherance of his above submission has referred to the case of Khushi Mohammad v. Anwari Begum P L D 1982 Lah. 295, in which, inter alia, it has been held by learned Single Judge of the Lahore High Court that section 11 does not govern the provisions of section 13 and a distinction between the residential and non‑residential buildings given in section 2 of the late Ordinance is not applicable to an application under section 13 (2) of the late Ordinance. In the above case the landlord had applied for ejectment on the ground of reconstruction and for personal requirement of his son. On the other hand Mr. Mubarak Hussain Siddiqui has referred to section (2) (d) and (2) (g) of the late Ordinance. The clause (d) provides the definition of non-?residential building as meaning building being used solely for the purpose of business whereas clause (g) gives the definition of the term "residential building" as means any building which is not a non‑residential building. The above distinction has been highlighted in the case of Muhammad Uris v. Zainuddin P L D 1981 Kar. 345 by Zaffar Hussain Mirza, J. (as his Lordship then was) and it has been held that a building used for business or trade alone is regarded as non?-residential use and all other uses arc to be regarded as residential uses. In the above‑cited case the question in issue was whether "Otak" was used for residential or non‑residential purpose.
6. Reference may be made to section 11 of the late Ordinance which provides that no person shall convert a residential building into a non‑residential building except with the permission in wilting of the Controller. Mr. Mubarak Hussain Siddiqui had referred the case of Dr. Bano Abedin v. Dr. Haq Nawaz P L D 1982 Kar. 818, in which I had held that a clinic having residential accommodation for patients and staff cannot be equated with a commercial premises like shops etc. and the landlady was entitled to apply for ejectment or the ground of personal requirement for house. 1n the above case reference has been made to the following cases.
(i) Jamil Ahmed v. Sultan Jehan Begum P L D 1974 Kar. 319, in which a learned Single Judge of this Court held that non‑residential building such as shop cannot despite the existing good faith be given to a landlord for residential purposes.
(ii) Muhammad Bashir v. Sultan Mahmood Khan PLD 1975 Lah. 254. In the above case a learned Single Judge of the Lahore High Court while construing the provisions of sections 2 (d) and 2(g) of the late Ordinance held that word. "building;" means even a part of the building and that portion of a building; let out by a landlord and used by the tenant exclusively for non‑residential purpose despite the fact that the rest of the building is used by the landlord for residential purposes would not render the portion let out to the tenant as residential building and the landlord would not be entitled to secure vacation on the ground of his personal use for residential purpose.
(iii) Gul Afzal Khan v. Muhammad Hanif Arif P L D 1979 Lah. 398, in which the view expressed in the above case of Mohammad Bashir v. Sultan Mahmood Khan was reiterated. In the instant case the sketch which is' appended to the sale‑deed al page 41 of the file of the rent case indicates that on the ground floor there were 14 shops though in the sketch shops Nos. 12, 13 and 14 are shown and behind the shops the garage in question exists which is given as No. 15. It appears that the above garage is a part of multistorey building having shops and flats. In terms of the above judgment of Zaffar Hussain Mirza, J. the use of the garage is not a use for commercial or trade purpose. In this view of the matter, the above Karachi case of 1974 and the two cases of the Lahore of 1975 and 1979 referred to hereinabove arc directly against the appellant. I am inclined to hold that the learned Rent Controller could have taken the view which found favour with him and I am, therefore, not inclined to interfere with the order under appeal.
7. It was also submitted by Mr. Rahmat Ellahi that under the Sind Rent Restriction Ordinance, 1979 the distinction between residential and non?-residential has been done away and, therefore, al present the law obtaining is different and a landlord can apply even a commercial premises for residential purpose and vice versa. Since the present case was under the late Ordinance, in my view, it will not be proper to dilate upon this aspect but it will be open to the appellant to agitate the same in a proper proceedings.
8. The appeal is dismissed with the above observations with no order as to costs.
S.Q./N‑115/K Appeal dismissed.