1984 PLP 3207 (CLC)

‑‑ Ss. 19 & 21‑Application for ejectment of tenant on ground of default admitted for hearing‑Tenant objecting to maintainability of appeal on plea of premises being a `hotel'‑Rent Controller dismissing application on that account without recording evidence to determine whether premises were a hotel or not‑ Rent Controller, held, did not follow procedure provided in S. 9 of Ordinance- Application for ejectment stood admitted and there was no provision in Ordinance for dismissing application after it was admitted without recording evidence of parties and giving them opportunity of cross-examination‑Order of Rent Controller set aside in circumstances. Hotel and Restaurant Act, 1976 ; Karachi Hotel and Lodging Act , Bombay Rent Ordinance, 1947 ; West Bengal Premises Rent Ordinance ; Stroud's Judicial Dictionary Vol. 11 p. 1259 ; 1983 C L C 723 ; 1983 C L C 1330 ; P L D 1964 Lah. 292 : P L D 1967 Pesh. 72 ; P L D 1983 S C 21 ; 1982 S C M R 8 ; 1982 C L C 2437 and P L D 1982 Kar. 532 ref. This appeal under section 21 of Sind Rented Premises Ordinance 1979, (hereinafter referred to as Ordinance) has been filed against the order, dated 22nd December, 1981 passed by Senior Civil Judge/Rent Controller Mirpurkhas whereby he has dismissed the Rent application of appellant.

2. Appellant is landlord of property bearing No. 293/1‑294 situated al Kunri Town District Tharparkar and respondent No. 1, is tenant at the monthly rent of Rs.650 per month and he has not paid rent from April, 1980. The appellant filed Rent Case on 26th October, 1980 on the ground that respondent has not paid the rent and sub‑Jetted some portion of the premises and allowed some one to keep a cabin. The application discloses that respondent is running a Hotel in the premises in the name of "Caf‑e -Iran" and using for lodging purposes contrary to the terms of tenancy. The Rent Application was admitted and notice was issued to the respondent who appeared and filed an application for the rejection of the Rent Appli cation on ground that it is not maintainable and is barred by law as per section 2(h) of the Ordinance as "Hotel" is excluded from the purview of the Ordinance. The Rent Controller accepted the application of the respondent and dismissed the Rent Case,

3. Mr. Mirza Abdul Rashid, Advocate for the appellant contended that premises are being used as "Cafe" therefore, section 2(h) does not apply. He has relied upon the definition given in Hotel and Restaurant Act, 1976, Karachi Hotel and Lodging Act, Bombay Rent Ordinance 1947, and West Bengal Premises Rent Ordinance and page No. 1259 Stroud's Judicial Dictionary Volume No.

11. He has also cited 1983 C L C page 723. 1983, C I. C 1330, P L D 1964 Lah. 292, and P L D 1967 Pesh.

72. He has further submitted that the Rent Controller, without recording evidence has erred in dismissing the rent case.

4. Mr. Ahmad Yousuf Rizvi has submitted that appellant in his Rent Application admitted that respondent is running a Hotel to the premises and in agreement it is also mentioned that premises were let out for the purpose of Hotel, therefore, provisions of the Ordinance are attracted to the rent case, therefore, the Rent Controller has no jurisdiction to proceed with the rent case. He has relied upon the cases reported in P L D 1983 S C 21, 1982 S C M R 8, 1982 C L C 2437 and P L D 1982, liar. 532.

5. In this case before written statement was filed the appellant moved an application under section 16(i) of the Sind Rented Premises Ordinance 1979, wherein he prayed that respondent be directed to deposit arrears of rent and pay future rent. The second application was moved by the respondent for rejection of Rent Case as being non‑maintainable. The Rent Controller accepted the application of the respondent and held that the premises are being used for Hotel, therefore, the jurisdiction of the Rent Controller is barred.

6. Appellant in his Rent Application has mentioned that respondent is his tenant since so many years but in March, 1980, due to non‑payment of the rent by the respondent the Nekmards of the locality get written tenancy executed on 27th March, 1980. The photo copy of the agreement is on record. There are two versions about the premises. Appellant states that it was "Cafe" and subsequently respondent started using the premises for lodging purpose. It appears that premises are in possession of respondent before the agreement is executed. The evidence has not come on record, therefore, it is not possible to determine whether the premises are being used as Restaurant, Cafe, Musaferkhana and Serai. Mostly in all the reported cases the decisions were taken when evidence was recorded but in this case without recording evidence the Rent Application has been dismissed. The Rent Controller has not followed the procedure laid down for the disposal of Rent Application in section 19 of the Ordinance which reads as under (1) Where an application other than the application under section 14 has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed by him for reasons to be recorded, issue a notice to the respondent to file written reply, if any, within such period not exceeding fifteen days of the receipt of the notice. (2) Where on the day fixed in the notice for then respondent to file written reply it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse, the Controller may, proceed to make an ex parte order and after such order has been made the Controller shall have. no power to rescind such order. (3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence first of the applicant and his witnesses and then of the respondent and his witnesses. (4) A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such other party shall have the right to cross‑examine the witness on such affidavit and if the witness has been cross‑examined the party producing the witness may re‑examine him. (5) The Controller shall, instead of formally framing issues arising between the parties, state them briefly in the judgment and shall record findings on each such issue separately." There is no provision in the Sind Rented Premises Ordinance for dis missing the application when it is admitted. He could dismiss summarily' under section t 9(i) of the Ordinance but once it is admitted the written reply is to be filed and the Controller has to proceed to receive the evidence of the parties and then give them opportunity of cross‑examination. I do not like to discuss the interpretation about definition of a `Hotel' because the rent case has not proceeded and any observations at this stage may pre judice the case of parties. Keeping in view the afore‑discussed aspects of case, the appeal is allowed and order of the Rent Controller, Mirpurkhas, dated 22nd December, 1981 is hereby set aside. The case is remanded back with direction to the Rent Controller to proceed with and decide on merits and according to law. M. B. A. Case remanded.