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Second Appeal from Order No. 589 of 1965, decided on 7th February 1966.

S. 13 read with Ss. 11 & 19-Controller has discretion to make an order in favour of landlord under S. 13(2)(vi)-Conversion of residential into non-residential building-Contravention of mandatory provision of S. 11, although punishable under S. 19, not a ground on which application for ejectment can be resisted.

In the scheme of the West Pakistan Urban Rent Restric tion Ordinance, 1959 while a restriction on indiscriminate conversion of residential buildings into non-residential buildings has been imposed by section 11, whose contravention is punishable under section 19, with a view to safeguard the availability of residential space, such a conversion without permission has not been made a ground for the dismissal of a petition under section 13. Although, the Controller has been given a discretion to make an order in favour of the landlord on ground (vi) of subsection (2) of section 13, and is not bound to do so, nevertheless, the contravention of section 11 is not one of the sure grounds on which an application for ejectment could be resisted.

S. 3(2)(vi)-Words "may" and "shall"-Purposely used in Ordinance to give or take away discretion of Controller Controller not bound either to accept or dismiss landlord's petition on ground (vi) of S. 13(2).

Commissioner of Income-tax v. Hoosen Kasam Dada P L D 1960 Dacca 506 ; Commissioner of Income-tax, East Pakistan v. Aizuddin Gazi P L D 1960 Dacca 535 and Ghulam Hussain v. Muhammad Rafiq P L D 1965 Kar. 468 ref.

S. 13--Provision having effect of curtailing rights of landlord to evict under Transfer of Property Act (IV of 1882)-To be construed strictly.

Abdul Hafez v. M. Daud Ali P L D 1961 Dacca 34 ref.

S. 100-Second appeal-Plea of law or fact-Not raised at earlier stage but if raised would have been successfully met-Such plea cannot be entertained in Second appeal.

S. M. Mundode v. New Mofassil Co. Ltd. A I R 1946 P C 97; Begam v. Kazbanoo P L D 1957 Kar. 884 and Abdullah Khan v. Nasir Muhammad Khan P L D 1965 S C 690 ref.

Hamid Mukhtar for Appellant.

Ali Hazoor Najafi for Respondent.

Dates of hearing: 17th, 19th, 20th, 26th and 27th January 1966.

These are eight connected appeals filed by the different tenants against the same respondent, land-lady, Mst. Surraya Sultana, who filed separate petitions under section 13 of the West Pakistan Urban Rent Restriction Ordinance of 1959, seeking ejectment of the appellants in occupation of different portions of the same premises, on the ground that she intended to demolish the existing building with a view to re-construct and had already obtained the necessary sanction from the Municipal Corporation in this regard. In four appeals Nos. 590, 592, 594 and 596 of 1965, the only issue framed and determined was in respect of the petitioner's intention to demolish the building for constructing the building on the same site for which she had obtained the necessary sanction from the Corporation. In respect of the remaining four Appeals Nos. 589, 591, 593 and 595 of 1965, a second issue on denied allegations of default in payment of rent was also framed viz., whether the respondents had been tendering or paying rent regularly. The first issue, which was common to all the petitions was found in favour of the petitioner-respondent, and consequently orders of ejectment were passed against the appellants. Their appeals were also dismissed by a single order dated 20th November 1965, passed by the District Judge, Lahore, as lower appellate authority, giving rise to the present second appeals. This order shall dispose of all the eight cases since the legal issue involved is identical and common.

2. These appeals were admitted by me on the ground that since the petitioner-respondent wanted to convert a residential building into a non-residential building, she could not do so except with the permission in writing of the Controller as provided in section 11 of the West Pakistan Urban Rent Restriction Ordinance. It was argued that having failed to comply with this statutory provision, she could not demolish the building for purposes of re-construction, on which pretext she had sought ejectment. While admitting these cases, I had also ordered maintenance of status quo which was sought to be vacated by the petitioner-respondent through Civil Miscellaneous Nos. 8193 to 8200 of 1965. Since in the petitions for vacation of stay order, the very basis of the admission of appeals was attacked it became difficult to separate the question of stay from the merits of the case, and as such, these appeals which normally should have taken quite sometime to be taken up were ordered to be fixed at an early date.

3. The cases were ably and elaborately argued by both sides and the hearing continued for several sittings.

4. Besides the appellant's main contention of the petitioner's failure to obtain sanctions of the Rent Controller for the conversion of a residential building into a non-residential building which formed the basis of admission, the learned counsel for the appellants tried to raise two more points, namely, that the copy of the plan exhibited by the respondent was not a true copy of the plan sanctioned by the Municipal authorities, and as such, was not admissible in evidence under section 63 of the Evidence Act. Efforts were also made to argue that in fact there had been no default in payment of rent in Appeals Nos. 589, 591, 593 and 595 of 1965.

5. Taking the last point first, it could be disposed of on the short ground that nothing was urged before the lower appellate authority in support of this contention as would be clear from the following observation of the learned District Judge in paragraph 13 of his impugned order

"As regards the finding of the Rent Controller regarding the issue in 3 appeals that the tenants in those three appeals have failed to prove that they are not defaulters, nothing has been urged before me and accordingly the finding of the Rent Controller on issue No. 2 in the above three appeals viz., Appeals Nos. 103, 104 and 105 is confirmed."

It was stated at the bar that the learned counsel who himself represented the appellants before the lower appellate authority could not get an opportunity to fully argue his case. Be that as it may, this question would become relevant and that too in respect of four appeals only, in case the main issue on which the appeals were admitted is decided against the respondent; and it is accordingly deferred.

6. As regards the other point alleging some discrepancy between the site plan Exh. P. 1 and the originally sanctioned site plan, it may be pointed out that Exh. P. 1 is admittedly a ferro copy prepared from the original by the mechanical process which in itself ensures its accuracy, and falls within the category mentioned in section 63 (2) of the Evidence Act. No direct objection to its mode of proof appears to have been taken and in fact, no question was put to the Inspector on this point, who was summoned and examined by the appellant as their own witness. The contention is, therefore, obviously devoid of force and is over-ruled.

7. Coming now to the main contention, the first point that falls to be determined is, whether in view of the site plan Exh. P. 1, showing some alterations in the ground floor, purporting to convert some rooms into godowns, the petitioner-respondent was in fact converting a residential building into a non-residential building, necessitating a permission in writing of the Controller, within the meaning of section 11 of the ordinance. Admittedly, the premises in question is a huge double-storeyed building of which different portions were let out to different persons for residential purposes including the appellants. No doubt some rooms on the ground floor along with kitchens originally used as residential accommodation are sought to be converted into godowns, vide site plan Exh. P. 1. A non-residential building as defined in section 2 (d) of the Ordinance means a building being used solely for the purpose of business or trade. Thus, any composite building which though mostly but not exclusively used for the purposes of business or trade cannot be called a non-residential building and shall still retain the character of a residential building as defined in section 2 (g) meaning any building which is not a non-residential building, although only a small fraction of the same may be used for purposes of residence. In the instant case, it is obvious that the building which was undisputedly a residential building in the first instance was not sought to be converted into shops and sheds for the sole purpose of business or trade, and as such, was not to be characterised as a non-residential building, for which the permission in writing of the Controller would be necessary. But this position is vulnerable from another point. A building as defined in section 2 (a) "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, out-house, together with furniture let therewith, but does not include a room in a Sarai', hotel, hostel or boarding house." Thus a part of a building let for any purpose would by itself, constitute a building and in fact was treated as such by the petitioner-respondent herself. Since different applications under section 13 had been brought against different tenants, the portions in their respective occupation were covered by the definition of building' under section 2 (a) and were treated as buildings under section 13. The argument was that even if one of such residential portions in a huge premises is sought to be converted into a shop or a godown, it would amount to a conversion of a residential building into a non-residential building. The question, however, is not free from difficulty. If the entire premises were in occupation of only one tenant, and were originally used for residential purposes, but subsequently most of it was sought to be converted into shop or sheds, still retaining some portions for residential purposes which would not fall within the definition of a non-residential building to be exclusively and solely used for business or trade, section 11 would not be attracted, but in the instant case, where each portion is defined and treated as a building by itself when proposed to be converted into a shop or shed, the question of obtaining the permission of the Controller certainly does arise, and there appears to be no escape from it, as there could not be two different definitions or standards by which a portion of a building is to be judged. The respondent-landlady herself filed different applications against different tenants in occupation of their respective portions or rooms treating them as "buildings" within the meaning of section 13 which deals with the eviction of a tenant in possession of a "building or rented land". The object of this provision is quite obvious and understandable. The Ordinance was promulgated with a view to safe-guard the rights of the tenants, to restrict the increase of rent of certain premises and to protect the tenants from arbitrary eviction there from. Section 11 obviously places a restriction on the arbitrary and indiscriminate conversion of residential buildings into non residential building so that an uncontrolled conversion with a view to attract more rent may not reduce the residential space in a society already confronted with an acute population problem. Although, the law does not clearly empower the controller to refuse such a permission, or set out the grounds on which it could be so refused, but such a discretion could be impliedly inferred. In that view of the matter, the petitioner-respondent gertainly sought conversion of the residential building into a non-residential building which is a point common to all the eight appeals. It is not in dispute that no such permission was either sought or obtained.

8. It now remains to be determined as to what is the effect of this contravention of section 11 and how far if at all, can it be raised as a plea by a tenant against his eviction. The only section which deals with the eviction of tenants is section 13 of the Ordinance which runs into eight subsections, and a close examination and analysis of this section would be advantageous for purposes of this case. Subsection (1) lays down " . . that no tenant shall be liable to ejectment except in accordance with the provisions of this section." This has the effect of complete ouster of the jurisdiction of civil Courts to try suits for ejectment of tenants in possession of buildings or rented lands. Subsection (2) lays down the procedure to be adopted by a landlord to seek ejectment of his tenants, and the ground on which ejectment could be sought. These include default in payment of rent, subletting, misuse of the building or impairing its utility etc. Un-amended part (vi) of subsection (2) of section 13 which is very relevant to the instant case reads thus:

"13(2) (vi) the landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for the said construction from the Improvement Trust or the Municipal Corporation, Municipality, Municipal Committee, Town Committee or Notified Area Committee, of the area where such building is situated, the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:

Provided that the Controller may give the tenant the reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate."

Subsection (3) (a) of section 13 empowers the Controller to put the landlord in possession on different grounds e.g. if, subject to certain conditions he requires a residential building in good faith and a non-residential building in good faith for his own use or for the use of his male children. Part (6) makes it obligatory on the Controller to make an order directing a tenant to put the landlord in possession, if he is satisfied about the bona fides of the landlord's claim. Subsection (4) provides for restoration of possession to a tenant under certain circumstances. Subsection (5) would again be very relevant for the purposes of the instant case and is reproduced below:

"(5) Where a landlord has obtained possession of a building in pursuance of an order under clause (vi) of subsection (2) of this section and does not have the building demolished within period of four months from the date of taking possession of the same, or does not construct the new building within a further period of two years after the expiry of the period of four months, from the date of taking possession of the same, he shall, unless he satisfies the Court that he was unable to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both."

This punitive provision is purported to be a safeguard against the eviction of tenants on false pretexts of demolition. Sub section (6) is procedural and deals with the determination of rent, and the deposit of arrears, and provides for summary dismissal of the petition, if the tenant is the petitioner and makes default in compliance with an order ; and for striking of his defence, if he is the respondent. The next subsection (7) authorises the Con troller to dismiss frivolous or vexatious applications and also provides for payment of compensation by the landlord to the tenant in such an event. The last subsection (8) is procedural in nature and provides for the payment of rent, to the landlord at the conclusion of the proceedings or even earlier as may be specified by the Controller. The only other section which is relevant for the purposes of the instant case is section 19 which is penal in nature and deals with contravention of sections 10, 11 and 18 of the Ordinance punishable with fine extending to rupees one thousand.

9. From the above analysis, it becomes abundantly clear that in the scheme of the Ordinance, while a restriction on indiscriminate conversion of residential buildings into non residential buildings has been imposed by section 11, and whose contravention is punishable under section 19, with a view to safe guard the availability of residential space, such a conversion without permission has not been made a ground for the dismissal of a petition under section 13. Although, the Controller has been given a discretion to make an order in favour of the landlord on ground (vi) of subsection (2) of section 13, and is not bound to do so, nevertheless, the contravention of section 11 is not one of the sure grounds on which an application for ejectment could be resisted. If it had been the intention of the Legislature to make this otherwise mandatory provision as one of the conditions precedant, under part (vi) of subsection (2) of section 13, it should have been mentioned there in its proper context where there is also a reference to obtaining necessary sanction for the said construction from the Improvement Trust, Municipal Corporation and Municipal Committee, etc. I am, therefore, of the view that this is not a ground on which an application under section 13 filed by a landlord could be successfully resisted.

10. It was argued by the learned counsel for the appellants that it was a settled principle of the interpretation of statutes that while interpreting a certain provision, the entire statute should be kept in view. Reference was made in this regard to Commissioner of Income-tax v. Hoosen Kesam Dada (P L D 1960 Dacca 506) and Commissioner of Income-tax, East Pakistan v. Aizuddin Gazi (P L D 1960 Dacca 535). Both these authorities were to the effect that interpretation should be reasonable and should reconcile the various provisions contained in different sections. They should be so construed as not to render any part super fluous, void or insignificant. The argument advanced was that the discretion given to the Controller in section 13 (2) read along with the mandatory provision of section 11 would lead to the inference that the Controller was bound to dismiss the landlord's petition for contravention of section 11. On the contrary, it was argued by the learned counsel for the respondent, relying on Ghulam Hussain v. Muhammad Rafiq (P L D 1965 Kar, 468) that the use of word May' did not give an uncontrolled discretion to the Controller. I see hardly any conflict of views in the two arguments and am definitely of the view that since in the scheme of the Ordinance, the words "may" and "shall" have been purposely used with a view to give or take away discretion from the Controller as the E case may be subject to certain specific circumstances, the f Controller was not bound either to accept or dismiss the landlady's petition on ground No. (vi) of section 13 (2). In my opinion, id would be competent for the Controller to refuse the landlady's application on the ground that no permission for the conversion of a residential building into a non-residential portion had been obtained or that he had refused to grant that permission. But in such an event, it would be equally open to him to ignore such a contravention and he would still be within his rights to make an order in favour of the landlord, notwithstanding the contravention of section 11.

11. It was next argued by the learned counsel for the respondent that assuming while proposing to convert some of the rooms into godowns, the respondent landlady was bound to obtain the permission of the Controller, the plea was rather pre-mature as the conversion was not complete and at the moment, it was nothing beyond a mere proposal. Since the punitive provision in section 13 (5) provided a sufficient safeguard against the false pretext or wrong invocation of ground (vi) of subsection (2) of section 13, no landlord could seek ejectment of a tenant on that pretext, except on pain of prosecution and since the words used in section 11 are that "no person shall convert" and not that "no person shall take steps to convert", the provision of this section could be pressed into service even at a subsequent stage, as the question of conversion would arise after the building has been demolished with a view to reconstruct it. Circumstances might change after demolition and may be that the site plan could also be sought to be amended so as to enable the ejected tenants to take benefit of the provision of section (5-B) inserted by the Amending Ordinance XXI of 1965, providing for the restoration of possession to him out of a portion of the reconstructed building. It was further argued that the provision of section 13 having the effect of the curtail ment of the rights of the landlords to evict as available to him c under the Transfer of Property Act, the section was to be strictly construed, and the conversion was to be fully established as having taken place, and which so construed even otherwise did not make the violation of section 11 a valid ground for disallowing an application for ejectment. Reliance was placed on Abdul Hafez v. M. Daud All (P L D 1961 Dacca 34). In this case while referring to the East Bengal Rent Control Act of 1963, Mr. Rahman, J. observed as follows:

"The Rent Control Act took away the right given to a landlord under the general law of the land, namely, the Transfer of Property Act to evict a tenant at his will after serving upon him the requisite notice and gave certain benefits to tenants to which they were not entitled before. Hence in construing this Act one must keep in mind the principle that those seeking benefits under the Act must bring themselves in the strictest terms within its provision."

12. Finally, it was argued that the objection not being a pure question of law, could not be taken at this late stage and if taken at the trial could have been met by a factual plea or alternatively the respondent-landlady could have obtain ed the sanction during the trial or even otherwise could have committed herself to let the godowns only for residential purposes or to be used as garages. After citing a chain of authorities, reliance was particularly placed on S. N Mundode v. New Mofassil Co. Ltd. (A I R 1946 P C 97), Begum v. Kazbanoo (P L D 1957 Kar. 384) and. Abdullah Khan v. Nisar Mohd. Khan (P L D 1965 S C 690). In the last mentioned authority, it was observed by their Lordships:

"To allow the question of law or of fact to be raised for the first time in appeal would clearly prejudice, and thus defeat the ends of justice."

It was further observed that "it is true that a pure question of law means a question which not only does not require any investigation into fact, but which could not have been met by a plea of fact if raised at the proper stage and ordinarily it will be a good argument as against a plea being a plea of law that it could have been met by an allegation of fact." This considered in the light of the obvious possibility of the plea having been successfully met, if' raised at an earlier stage has lot of force, and furnishes an D adequate answer to the question raised by the learned counsel fort the appellants. Even the earlier contentions raised by the learned counsel for the respondent are not without force, and have much to commend themselves.

13. In view of my finding on this issue, it is hardly necessary to go into the point of the existence or non-existence of default in payment raised in Appeals Nos. 589, 591, 593 and 595 of 1965, which even otherwise stands sufficiently repelled by an observation of the learned District Judge contained in paragraph 14 of the impugned order, reproduced earlier that nothing was urged before him on this point.

14. For the foregoing reasons, I see no force in the appeals which are dismissed. The parties are, however, left to bear their own costs.

S. Q.

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