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Second Civil Appeal No. 36 of 1962, decided on 3rd July 1963.
S. 13 (3) (a) (ii)‑Non‑residential building can be claimed by landlord only for his business and not for purpose of residence.
Ss. 12 & 13‑Tenant withholding rent for purpose of deducting cost of repairs carried out by him without permission of Controller‑Liable to ejectment for non‑payment of rent.
Mirza Muhammad Ahmed for Appellant.
Muhammad Nawaa Ahmed and L H. B. Hanafi for Respondents.
Dates of hearing : 25th and 26th Jute 1963.
Seth Girdhari Lal tenant‑respondent has come up "In second appeal against the order dated 31st of May 1962, of S. Tafazzul Hussain, District Judge, Quetta, the Appellate Authority under the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) who upheld the order dated the 11th of December 1961, of Mr. Ahmed Khan Barakzai, Senior Sub‑Judge and Rent Controller, Quetta who had ordered the ejectment of the appellants under section 13 of the Ordinance from the building bearing Municipal No. 2‑43‑69, situate on the junction of Yate Road, and Jinnah Road, Quetta.
2. The appellant has been admittedly in occupation of the above‑mentioned building as a tenant of the respondents. Mst. Marzia Begum and Mst. Khudeja Bano, on a monthly rental of Rs. 225 under a lease deed dated the 17th of June 1952. The respondents filed an application for the ejectment of the appellant from the premises in dispute on the 9th of July 1959, on the ground that they wanted the building in question in good faith for their own occupation and for the occupation of their children and that they were being pressed by the owner of the house they were living in to vacate it and had no other house of their own except the one tenanted by the appellant. They further averred by way of a ground for the eviction of the appellant that he had not paid rent due from him in respect of the said premises from the 10th of August 1958, up to the date of their application and that despite a notice having been given to him vacate the premises, he had done so.
3. The appellant resisted the application, contending, basides raising preliminary objections to the validity of the application on the score of its non‑verification and incorrect valuation for the purposes of Court‑fee, that the respondents did not require the premises in question bona fide or reasonably for their personal use and that Mst. Marzia Bano respondent was actually living in the house belonging to her husband and that the house in dispute was too big for the bona fide use of the family of respondent -applicant No. 1, it having eight or ten rooms, and that the real intention behind the application of the respondents was the enhancement of rent or to get the vacant possession of the premises for the purpose of selling the building to same-one else. It was further contended that the entire rent due had been paid off, except a sum of Rs. 700 which had been withheld by the appellant pending the settlement of accounts, towards the repair of the building carried out by the appellant. It was further stated that the huge arrears of rent got accumulated because the respondents were not prepared to receive the rent.
4. In their replication the respondent‑applicants reiterated the averments they had made in their application and stated that out of the arrears of rent due, i.e., Rs. 5,850 the appellant paid up Rs. 3,000 before the institution of the application and Rs. 2,000 after the application had been filed and a balance of Rs. 850 was yet due from him which he had neither paid up nor tendered in Court. They further emphasised that the appellant had no Authority to retain Rs. 700 towards the repairs of the premises and affirmed that the premises had been regularly repaired by them. They further asserted that is fact the appellant had himself damaged the said premises considerably.
5. The learned Rent Controller overruled the preliminary objection by his order dated the 30th of September 1959, and framed the following issues: ‑
(1) Whether the petitioners require the premises bona fide for their personal use
(2) Whether respondent has committed such acts as have materially impaired with the premises
(3) Whether respondent is entitled to withhold payment of Rs. 700 spent on repairs
The learned Rent Controller after taking into consideration the evidence led by the parties, recorded his findings on issues Nos. 1 and 3 in favour of the respondent‑applicants and against them on issue No. 2 and accepted the respondents' application and ordered the eviction of the appellant as prayed for by the respondents. As already mentioned, the District Judge as the Appellate Authority dismissed the appeal of the appellant, maintaining the decision of the Rent Controller.
6. The findings of the Rent Controller and of the Appellate Authority on issues Nos. 1 and 3 have been challenged by the learned counsel for the appellant before me. As regards issue No. 1, he has urged that the building in dispute being admittedly a non‑residential building, the respondents‑applicants were not entitled to occupy it in the circumstances of the case even if they were feeling inconvenience in the house that they were occupying. On the other hand, the learned counsel for the respondents has urged that merely because the appellant had started using the building for the purposes of his factory, the character and nature of the building cannot be said to have been altered from a house to a non‑residential building.
7. I see no force in the contention of the learned counsel for the respondents. "Non‑residential building" has been defined in the Ordinance in the following words :‑‑
"non‑residential building means a building being used solely for the purpose of business or trade".
There is no manner of doubt that the premises in question were being solely used for the purpose of business and trade by the appellant on the day that the respondents made their applica tion under section 13 of the Ordinance. From the lease deed dated the 17th of June 1952, under which the premises in dispute were rented to the appellant, it is clear that building was to be used by the appellant for manufacturing food and other "pro cessed food industries" for a period of five years. There is nothing on the record to suggest that the appellant had neither during the period of five years contemplated by the lease deed or thereafter used the building for purposes other than manufacturing food etc. It is, therefore, clear to my mind that the building in question was as a non‑residential building. In this view of the matter, it appears to me that the respondents, irrespective of the fact whether they required the building in question in good faith or otherwise, could not ask for its occupation on the ground that the residential house they were occupying was not suitable for their needs at the time. To determine the validity of the claim of a landlord to occupy a building which is in occupation of a tenant, subsection (3) of section 13 has to be examined. Subsection (3) reads as follows:‑
"(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession‑
(i) in the case of a residential building, if‑
(a) he requires it in good faith for his own occupation or of any of his children ;
(b) he is not occupying another residential building suitable for his needs at the time, in the same urban area in which such building is situated ; and
(c) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area ;
(ii) in the case of a non‑residential building or a scheduled building or rented land, if‑
(a) he requires it in good faith for his own use or the use of any of his male children;
(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 ; and
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area:
Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant the landlord shall not be entitled to apply under this subsection before the expiry of such period;
Provided further that where the landlord had obtained possession of a residential, scheduled or non‑residential building or rented land under the provisions of sub‑paragraph (i) or sub paragraph (ii) he shall not be entitled to apply again under the said sub‑paragraph for the possession of any other building of the same class or rented land unless such residential, scheduled or non‑residential building or land is no longer suitable for his needs at the time.
(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application:
Provided that Controller may give the tenant a reason able 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."
8. It is obvious from subsection (3) (a) (1) that it is only a residential building that a landlord can occupy in supersession to the claim of the tenant to remain in its occupation if the landlord requires it in good faith for his occupation or for the oc cupation of any of his children, whether they are male or female, and in the case of a non‑residential building, sub‑paragraph (U) of clause (a) of subsection (3) lays down that a landlord can occupy it in supersession to the right of the tenant to remain in its occupation if the landlord requires it in good faith for his own use or for the use of his "male" children and he or his said child is not occupying in the same urban area such a non‑residential building for the purpose of his business. It appears to me that what is contemplated in subsection (3) (a) (d) is that a non residential building can be claimed by the landlord in supersession to the right of the tenant to continue using it if the landlord requires the building for the purpose of his business, and not when he requires it for residential purposes. Since not only no evidence has been led by the respondents that they wanted the building in question for the purpose of their business but had not even averred that they required the building for their personal use in connection with their business, I hold that the learned Rent Controller and, for that matter, the lower Appellate Authority were right in recording their findings on issue No. I in favour of the respondents.
9. As regards issue No. 3 I must uphold the findings of the lower Courts since it appears to me that the appellant was not entitled to withhold the arrears of rent equal to Rs. 700. Although the respondents' contention is that the arrears of rent to the tune of Rs. 850 had been withheld by the appellant, the latter had himself admitted that R. 700 had been kept back by him. As to whether a tenant can carry out repairs (when the landlord fails to make them the relevant section of the Ordinance is section 12. It reads as follows :‑
"If a landlord fails to make the necessary repairs other than structural alterations, to a building, it shall be competent for the Controller to direct, on application by the tenant and after such inquiry as the Controller may think necessary that such repairs may be made by the tenant and that the cost thereof may be deducted from the rent which is payable by him."
According to this section, it is necessary for the tenant in order to entitle himself to withhold any arrears of rent for the purposes of deducting the cost of repairs to get the permission of the Controller for carrying out the repairs.
In the present case, apparently the appellant did not with hold the amount of Rs. 700 which amounts to more than three months' agreed rent at the rate of Rs. 225 per month after having obtained previous permission of the Rent Controller who was supposed to have granted the permission only after an inquiry into the necessity of the repairs. In this view of the matter, I do not think the appellant had made himself liable to eviction because he made no payment of rent to the respondents for more than three 'months. I, therefore, uphold the findings of the lower Courts on issue No. 3. Nor do I find any good ground for inter fering with the discretion that the Rent Controller has exercised in ordering the eviction of the appellant.
10. For the foregoing reasons, the appellant's appeal is dis missed. Since a finding on one issue has been given in favour of the appellant, I make no order as to costs. The appellant shall vacate the premises and put the owner in possession of the building within a period of one month.
K. B. A./A. H. Appeal dismissed.
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