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Constitutional Petition No.S‑106 of 1985, decided on 30th January 1986.

‑‑‑S. 17‑‑Residential premises let out for commercial use‑ ‑Possession, held, could be sought back by landlord for residential purpose.

Syed Amjad Ali Shah v. lqbal Ahmad Farooqi and others PLD 1985 S C 242 rel.

P L D 1981 S C 246; Jamil Ahmad v. Sultan Jehan Begum PLD 1974 Kar. 319; Muhammad Amin Baig v. Muhammad Khan PLD 1965 Lah. 385 and Muhammad Bashir v. Sultan Mehmood Khan PLD 1975 Lah. 254 ref.

‑‑‑ S. 17‑‑Limitation Act (IX of 1908), Ss. 5 & 29‑‑Condonation of delay‑‑Cantonments Rent Restriction Act, 1963, being a special law, provision of S. 29 excludes provisions of S.5 of Limitation Act, 1908‑ Delay in filing appeal, held, not condonable.

Jamil Ahmad v. Sultan Jehan Begum P L D 1974 Kar. 319; PLD 1975 Lah. 259; P L D 1965 S C 669; A I R 1963 S C (Ind.) 337; P L D 1982 S C 88 and 1983 SCMR 1239 ref.

Ali Muhammad and another v. Fazal Hussain and others 1983 S C M R 1239 rel.

Raja Qureshi for Petitioner.

Shamdas B. Chhangani, for Respondent No.1 (in pre‑Admission Notice).

Date of hearing: 29th January, 1985.

This petition under Article 9 of the Provisional Constitution Order, 1981 is directed against judgment dated 8‑6‑1985 passed by the learned District Judge, Karachi, as Appellate Authority under the Cantonment Rent Restriction Act, 1963, dismissing the Petitioners appeal against the order of ejectment dated 26‑2‑1983, passed by the Controller of Rents, Drigh Road Cantonment, in Rent Case No.3 of 1983.

The learned counsel for the Petitioners has contended that the respondent No.1 filed the ejectment case on various grounds viz. personal requirement, Subletting, use of the premises for a purpose other than for which it was let out, default in payment of rent, and impairing the value and utility of the premises, out of which the learned Controller passed the order for ejectment on the grounds of personal requirement, subletting and impairing the value and utiliy of the rented premises, while the learned District Judge maintained the order of ejectment on the only ground of personal requirement. According to him, the rented premises, although originally a residential premises, was let out for commercial purpose, and it cannot be reverted back for residential purpose and, therefore, the order of ejectment is bad in law. He has next contended that the learned District Judge dismissed the appeal also on the ground of its being time-barred; and that since the appeal was entertained and it was considered on merits, the question of limitation stood impliedly condoned. He has placed reliance on the cases reported in PLD 1974 Kar. 319 and PLD 1975 Lah. 259 in support of his first submission. On the question of limitation, he has urged that the period of limitation had run out due to fault of the Counsel having appeared before the Controller of Rents. He has placed reliance on the cases reported in P L D 1965 SC 669 and A I R 1963 S C (India) 337.

On pre‑admission notice to the respondent No.1, the learned counsel appearing for that respondent has opposed the admission of the petition, contending that the appeal was time-barred and the question of limitation could not be condoned. He has placed reliance on the cases reported in P L D 1982 S C 88 and 1983 S C M R 1239. As regards the conversion of the premises from residential to commercial use or otherwise, he has placed reliance on a case reported in P L D 1985 S C 242 and another case reported in P L D 1981 S C 246.

There are concurrent findings of the learned Controller and, the learned District Judge that the respondent No.1 bona fidely needs the rented premises for his own use. The contention on behalf of the petitioners that the landlord could not obtain for residential purpose possession of the rented premises let out for commercial purpose is not tenable. It was, of course, held in the case Jamil Ahmad v. Sultan Jehan Begum P L D 1974 Kar. 319, that a non‑residential building could not be directed to be given in the possession of the landlord for residential purpose; and an earlier case viz. Muhammad Amin Baig v. Muhammad Khan P L D 1965 Lah. 385, wherein different view was adopted, was distinguished. Same view was adopted by a Single Judge of the Lahore High Court in a case Muhammad Bashir v. Sultan Mehmood Khan P L D 1975 Lah. 254. But there is a recent Judgment of the Supreme Court in a case Syed Amjad Ali Shah v. lqbal Ahmed Farooqi and others P L D 1985 S C 242 which is apt to the nature of this case. In that case, the landlord had let out a residential premises for commercial use and he sought its possession back for using it for residential purpose and a question arose whether the landlord obtain its possession under the Rent Laws. It was held that a residential premises let out for commercial use could be obtained back by the landlord for residential purpose. Both the cases relied upon by the learned counsel for the petitioner, mentioned above, were referred to in the aforesaid Judgment of the Supreme Court. In the instant case, the premises let out to the petitioners was originally a residential premises and it was, of course, let out to the petitioners for commercial use, but its possession can be sought back by the landlord for residential purpose. The petition cannot be maintained on that ground.

The order of the learned District Judge dismissing the petitioners appeal, impugned in the petition, was also based on the question of limitation that the appeal was time-barred. The submission of the learned counsel that the delay in filing the appeal stood condoned in view of the fact that the learned District Judge applied his mind and considered the appeal on merits. But it was held by the Supreme Court in the case of Abdul Ghaffar and others v. Mst. Mumtaz that limitation could not be condoned under section 5 of the Limitation Act in the appeal arising from the Sind Rented Premises Ordinance as the period of limitation or filing the appeal is different from the period prescribed by the Article 156 of the Limitation Act and the provisions of section 29 of the Limitation Act excluding the provisions of section 5 thereof would be attracted. The case involved in the petition is that under the Cantonment Rent Restriction Act, 1963 which is a special law like the Sind Rented Premises Ordinance and the rule laid down in the aforesaid case does apply thereto. There is another decision of the Supreme Court on the same proposition of law and it is the case of Ali Muhammad and another v. Fazal Hussain and others reported in 1983 S C M R 1239. The cases relied upon by the learned counsel for the petitioners are not attracted on the facts of the case. In the case reported in P L D 1965 S C 669, it was observed that a party was not to suffer because of counsel's negligence and dismissal of the suit for default was condoned. But in that case, default was condonable if sufficient reason was advanced whereas the question of limitation in the instant case was incondonable. In the other case of the Supreme Court of India, the facts were different.

It would appear that the impugned orders are within the sphere of relevant laws and there is no case for interference with them under the Constitutional jurisdiction. Accordingly, the petition is dismissed in limine.

M.A.K./A‑110/K Petition dismissed.

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