Find a Lawyer

2. The dispute relates to the ground floor of Bungalow No. Q/30 Gulberg‑II, Lahore, belonging to Begum Musarrat Bashirul Hassan (respondent No. 1). The ground floor of the bungalow was let out to Muhammad Saleem (petitioner) on rent on 25‑6‑1969, at Rs. 800 per month, by Fazal Hussain respondent No. 2, the attorney of the landlady.

3. The Agreement of Lease is silent about the use to which the said building was to be put, but admittedly after taking the premises on lease the petitioner installed a printing press therein.

4. In April, 1976, the landlady filed an application for ejectment the petitioner to the Court of the Rent Controller on the grounds of default ; subletting ; causing damage to the property and requirement for personal use as residence.

5. The learned Rent Controller framed seven issues, of which those relevant to the grounds of eviction were Issues Nos. 4, 5, 6 and 7, which read as follows :‑

"(4) Whether the respondent has defaulted in the payment of rent O. P. P.

(5) Whether the respondent has sublet the premises in dispute to respondent No. 2 O. P. P.

(6) Whether the respondent has materially impaired the value and utility of the house in dispute O. P. P.

(7) Whether the petitioner in good faith requires the premises in dispute for personal use and occupation O. P. P.

The parties led their respective evidence on these issues. The learned Rent Controller, relied on the evidence adduced by the landlady and allowed the application for ejectment on the ground that the bungalow was bona fide required by her for personal use as residence.

6. Aggrieved by this order, the petitioner went in appeal. The learned Additional District Judge upheld the finding of the Rent Controller regarding requirement for personal use, and dismissed the appeal on this as well as on the additional ground that he had converted the premises in dispute into a non-residential building without the permission of the Rent Controller under section 11 of the Urban Rent Restriction Ordinance, 1959.

7. The petitioner then filed an S. A. O. The High Court upheld the findings of the two courts below and dismissed the appeal vide the impugned judgment. The High Court held, inter alia, that although it was admitted that the tenant had installed a printing press in the building in dispute, yet his act was not legal since he had not obtained permission of the Rent Controller for converting the building to another use, as required by section 11 of the Urban Rent Restriction Ordinance.

8. Aggrieved by the dismissal of his second appeal, the petitioner filed a petition for Leave to Appeal before this Court. Leave was granted to the petitioner by order dated 13-7-1978. The relevant portion of the order reads as follows

"Mr. A. R. Sheikh, the learned counsel contended that the long user of the premises in dispute as commercial premises by the petitioners would, in the absence of any written document or objection by the respondents show that the respondents had in deed agreed to the said arrangement. His grievance, however, is that the learned Additional District Judge as well as the learned Judge in the High Court both have erred to hold that since no prior permission under section 11 of the West Pakistan Urban Rent Restriction Ordinance, 1959, had been obtained by the petitioner from the Rent Controller, they must be held to have rendered themselves liable to ejectment. Section 11 of the said Ordinance reads as under :-

"11. Conversion of a residential building into a non-residential building.- No person shall convert a residential building into a non-residential building, except with the permission in writing of the Controller."

The learned counsel contended that since the respondents herein had agreed to the user of the suit premises by the petitioners as commercial premises, which indeed were so used for almost seven years, the application of section 11 (ibid) to the facts of this case would be out of the question. From this the learned counsel, therefore, argued that the impugned judgment of the High Court would be untenable because once it is found that the suit premises were really agreed to be used as commercial premises then the application filed by the respondents herein for getting them vacated to be used. as residential premises would be incompetent. Prima facie, there seems to be force in the contentions raised by the learned counsel.

Leave is accordingly granted to the petitioners as prayed to examine the said two questions of law "

9. Before us the learned counsel for the petitioner reiterated the same contentions as had been raised by him before the learned D. B., at the time of granting leave to appeal.

He also contended that since the landlady had filed the ejectment petition only on the grounds of default, subletting, damaging the building and personal use, she could not, later on, be allowed to urge a new ground for eviction, namely, conversion of the property from residential to a non-residential building by installing a printing press in it, specially when she had not made any grievance for it for a number of years.

10. We have beard the learned counsel for the parties at length and given our careful consideration to. the legal questions raised by the appellant.

11. It would be noticed that the petitioner-tenant's case, broadly, is that since the landlady had acquiesced in the use of the premises for commercial purpose, she cannot object to the conversion now. The case of the landlady, on the other hand, is that the property in question is a bungalow in a residential area in Gulberg which was given on rent to the petitioner for residential purpose and its conversion into a non residential building by installing a printing press therein without her consent and the permission of the Rent Controller is illegal.

12. The lease deed is silent on the question as to the use to which the bungalow was to be put, but it is admitted that shortly after it was give on rent the petitioner installed a printing press in it. All the Courts have given a concurrent finding that the bungalow was required by the landlady for her personal use. The fact that it is a residential bungalow is evidence from the fact that it is situated in a purely residential area of Gulberg (Lahore) and the fact that respondent No. 2, actually resides in the first floor of that) bungalow.