ZAHIDA ZAIDI Versus JAMALUDDIN AHMAD

ORDER

1. JAVID IQBAL, J.-- This petition for leave to appeal has been filed by Dr. Zahida Zaidi petitioner and is directed against the judgment dated 17th May, 1987 of learned Single Judge of the Lahore High Court Multan Bench, Multan.

2. The background is that the petitioner is a tenant under Jamalud din Ahmad respondent of house bearing No.94-13/VII at Sahiwal. The said house was leased out by the respondent to the petitioner vide lease agreement dated 28th July, 1963 whereunder the lessee i.e. the petitioner had agreed to take on rent the said house for her residence and for running maternity hospital. The respondent who was a Govern ment servant was compulsorily retired in 1972 but 11 years thereafter on 28th July, 1983 moved an ejectment petition against the petitioner in the Court of the Rent Controller at Sahiwal on the ground of personal use of the said premises. The respondent averred that he needed the premises for his personal use after his retirement as he did not own any property at Sahiwal for his residence. The petitioner's case before the Rent Controller was that the disputed property was not only being used by her as residential property but was also being used as maternity hospital and thus it was a scheduled building. The petitioner being herself a registered medical practitioner was using the said property as a scheduled building and that the respon dent could not get the premises vacated unless he required the dispute property in good faith for his personal use of the said house as a scheduled building. The Rent Controller dismissed the ejectment petition filed by the respondent against the petitioner vide his judgment dated 6th April, 1986 but on appeal the Additional District Judge Sahiwal reversed the judgment and decree of the Rent Controller. Thereafter the present petitioner challenged the judgment of the appellate Court by way of a constitutional petition which was heard and dismissed by learned Single Judge of Lahore High Court Multan Bench , Multan.

3. The main argument of the learned counsel for the petitioner before us is that section 2(h) of Urban Rent Restriction Ordinance gives definition of scheduled building as a residential building which is being used by a person engaged in one of the professions specified in the Schedule to the Ordinance, partly for his business and partly for his residence. According to the learned counsel such a building if occupied partly as residence and partly as hospital by a medical practitioner is to be considered a scheduled building. The argument of the learned counsel further is that under section 13(3)(ii) of the Ordinance in the case of non-residential building or a scheduled building or rented land, a landlord can apply to the Controller for an order directing the tenant to put the landlord in possession, if:

(a) he requires it in good faith for his own use or for the use of his male children; and

(b) 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 or rented land, as the case may be, suitable for his needs at the time.

4. In the light of these legal provisions it is submitted by the learned counsel that since the property in dispute is a scheduled building, the petitioner could only be ejected therefrom if the respondent in good faith required the said premises for his own use as a scheduled building or for the bona fide use of his son as a scheduled building. He placed reliance on Abdul Ghaffar v. Haji Salamatullah P L D 1961 Lah. 233, Dr. Muhammad Rafiq v. District Judge, Lahore and others P L D 1982 S C 362 and Hakim Shahab Din v. Abdul Majid and others 1986 S C M R 400.

5. We have carefully considered the arguments of the learned counsel but in our considered opinion, the law point which has been raised by him already stands decided in 1986 S C M R 400 (supra) in which it was laid down as follows:

6. "Additionally and more importantly even if it is established that the disputed premises consisted of a scheduled building, we are unable to find any extra protection extended by the law to the tenant of such a building in the matter of eviction on the ground of personal use. Section 13(3)(ii) of the Urban Rent Restriction Ordinance, 1959, provides for the eviction of a tenant in the case of non-residential building or a scheduled building or rented land, inter alia, on the ground that the same is required by the landlord in good faith for his own use or for the use of any of his male children. The grounds for eviction in respect of the three categories of premises mentioned above are identical and to us it is clear that no extra privilege has been extended by these provisions to the tenant of scheduled building. Learned counsel for the petitioner when confronted with this position of law was unable to controvert the same and conceded that no distinction has been made between the non-residential and scheduled building. The argument that the building in question may be a scheduled building is, therefore, wholly irrelevant in the context of the findings of fact that the same was required for the use of the landlord's son."

7. In the light of the above discussion in our view it is not a fit case for the grant of leave. The petition is therefore dismissed. However, since the petitioner promises before us to vacate the premises peacefully and without even filing by the respondent an application for execution within a period of four months, we allow the petitioner four months time from today to vacate the said premises subject to the payment of rent of Rs.500 p.m. which should be paid in lump sum in advance within two weeks to the respondent landlord.

8. M . I . / Z-18/ 5 Petition dismissed.