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1st Rent Appeal No. 704 of 1982, decided on 28th March, 1984.

‑‑‑Ss.13(3)(a)(ii) & 15(4)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.15‑‑Ejectment proceedings‑‑Rights and liabilities having accrued to parties at time of filing ejectment application when Rent Ordinance, 1959 in force, held should not be deemed to have been taken away by Ordinance XVII of 1979, and rights would be decided on basis of law in force at time of filing ejectment application.

‑‑‑Ss.13(3)(a)(ii) & 15(4)‑‑Ejectment‑‑Non‑residential building‑‑Shop let out separately for non‑residential purpose to tenant and rest of building used by landlord for residential purpose‑‑Shop, held a distinct building falling under definition of non‑residential building and as such shall not be available to landlord for personal requirement of residence‑‑Order of Rent Controller ejecting tenant from shop for residential use of landlord set aside.

Muhammad Bashir v. Sultan Mahmood Khan P L D 197 Lah. 254; Gul Fazal Khan v. Muhammad Hanif Arif P L D 1979 Lah. 398 and iana Khalil‑ur‑Rehman v. Additional District Judge, Lahore and 2 others P L D 1983 Lah. 331 ref.

N. K. Jatoi for Appellant.

Muhammad Rafique Khanzada for Respondent.

Date of hearing: 21st March, 1984.

The respondent is owner of a shop bearing No. AV/15, situated in Angora Goth, Liaquiatabad, Karachi. This shop was rented out by the respondent to the appellant on monthly rent of Rs.130. In July, 1977 the respondent called upon the appellant to vacate the shop as she required it for her personal use. It may be stated that the shop in question forms part of the composite house in which the respondent is also residing. Only one part of the house was rented out to the appellant as a shop.

2. It was alleged by the respondent that the appellant refused to vacate the shop in spite of his promise. She, therefore, filed Rent case being No.3700 of 1977 before IXth Senior Civil Judge and Rent Controller, Karachi on 26th July, 1977.

3. The appellant denied the claim of the respondent that she required the shop for her bona fide requirement. Only one issue was framed in this case as under:

"Whether the suit premises is required by the applicant for her own and of her children's bona fide use and occupation in good faith "

After recording evidence of the parties the learned Rent Controller allowed the ejectment application and directed the appellant to vacate the shop and hand over its possession to the respondent within 119 days by his judgment dated 20th May, 1982. Hence this first appeal under section 21 of the Sind Rented Premises Ordinance, 1979.

4. Mr. N. K. Jatoi learned counsel for the appellant has urged only one point in support of his appeal namely, that that premises having been let out to the appellant as shop for business purposes shall be deemed to be non‑residential premises and as such the respondent was not entitled to obtain its possession under section 13(3)(a((ii) of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance of 1959) for residential purposes.

5. There is no dispute on the question that the premises in dispute were let out to the appellant by the respondent as a shop for business purposes by an agreement dated 17th May, 1976. The rent agreement has been produced by the respondent in her evidence as Exh.A/2. The ejectment application was filed on 19th December, 1977 i.e. before coming into force of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance of 1979). Hence the rights and liabilities that have accrued to the respective parties at the time of filing the ejectment application, shall not be deemed to have been taken away by the Ordinance of 1979. The liability of the appellant to be ejected from the premises in question at the time of filing the ejectment application shall be decided on the basis of the law which was in force at the time of filing the ejectment case. Similarly the rights which had accrued to the appellant at the time of filing the ejectment application shall also be determined under the Ordinance of 1959 which was in force at that time and those rights shall not be deemed to have been extinguished by the Ordinance of 1979. According to section 13 (3) (a) (ii) of the Ordinance of 1959 a tenant of a non‑residential building could be ejected by the landlord only if the landlord required it for business purposes i.e. as a non residential premises. He would not be entitled to eject the tenant from a non‑residential building for the purposes of using it as a residential building.

6. Reliance in this connection has been placed on the case of Muhammad Bashir v. Sultan Mahmood Khan P L D 1975 Lah. 154 in which it has been held by a learned Single Judge as under:

"The word 'building' as defined by section 2(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959 means even a part of a building let for any purpose. Clearly therefore, only that part of the building is a building within the meaning of the term in section 2(a) of the Ordinance which has been let out for any purpose. The portion which remains in possession of the landlord, although it be part of the building in ordinary parlance, will not fall within the definition of the word 'building' in section 2(a). The words 'residential building' will mean, if the whole building is rented out either for residential purpose alone or for partly residential and partly commercial purposes, the whole building; and in case only a portion of the building has been rented out either exclusively for residential purposes or partly for purpose of residence and partly for purpose of business, the rented portion of the building,, if the let out portion of a bigger building is not used either solely for residential purposes or partly for resi dential and partly for commercial purposes, but is utilized only for commercial purposes, it will fall within the definition of expression 'non‑residential building', while considering these three definitions, therefore, the portion of the building which has not been rented out by the landlord and is in his actual possession, cannot be taken into consideration. In determining the nature of the portion in dispute, therefore, any portion of the building in possession of the landlord is to be ignored from consideration.

The portion let out to the tenant will form a building by itself under section 2(a) of the Ordinance and since it is being used exclusively for non‑residential purpose, it is covered by the definition of 'non‑residential building' and cannot be directed to be vacated for the use by the landlord for residen tial purpose.

The same view has been taken in the case of Gul Fazal Khan v. Muhammad Hanif Arif P L D 1979 Lah. 398. Relying on the earlier case of Muhammad Bashir, the learned Judge in the above case held as under:‑

"20. It is clear from a reading of these two clauses that the landlord can eject a tenant from a residential building if he requires the building for residential purposes and from a non residential building if he requires it for trade or business since the question of his occupation of a non‑residential building when he requires a residential building for his own use and question of residential building when he requires non residential building for his own use, would not be relevant except in the circumstances noted above. It necessarily follows, that he can eject a tenant from the same for his personal use for the purposes of business or trade. Since the respondent requires a non‑residential building for residential purposes, section 13 cannot help him."

7. Mr. Muhammad Rafiq Khanzada learned counsel for the respondent has, on the contrary, relied on the case of Rana Khalil‑ur‑Rehman v. Additional District Judge, Lahore and 2 others P L D 1983 Lah. 331 in which it has been held that if a part of a composite residential building is being used for non‑residential purposes, then the whole building shall be treated as a residential building. It is, therefore, argued that since the shop let out to the appellant was part of a composite building occupied by the respondent for residential purposes, hence the entire building including the shop rented out to the appellant shall be treated as a residential building. The ratio of the above case, the facts of which were quite different, is not attracted to the facts of the present case. In the present case the shop has been let out separately for non‑residential purposes to the appellant, as is evident by the agreement itself, while the rest of the building is being used by the respondent herself for residential purposes. The shop in dispute, therefore, is distinct building falling under the definition of non‑residential building and as such shall not be available to the landlord for her personal requirement of residence.

I am in respectful agreement with the two decisions of the Lahore High Court cited above and hold that the Rent Controller had erred in holding that the respondent was entitled to eject the appellant from the shop in question for the purpose of getting the shop for her personal use and for the use of her children. Consequently the appeal is allowed and ejectment 'application filed by the respondent is dismissed. There shall be no order as to costs.

M.Y.H. Appeal allowed.

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