2003 PLP 722 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑Nobody has appeared on behalf of the respondents to defend this appeal. Mr. Ali Akbar, learned AOR of the respondents has filed a statement on behalf of the respondents. The respondents are hereby proceeded against ex parte.

2. This appeal by leave of the Court is directed against the judgment, dated 21‑1‑1996 of the High Court of Sindh Circuit Bench. Hyderabad through which on acceptance of appeal filed by the respondents against the order, dated 18‑5‑1994 of the Rent Controller of their eviction from the premises in dispute, the ejectment petition has been dismissed on the ground that the premises in dispute being a Hotal was not included within the definition of premises as given in section 2(h) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance"), therefore, the Rent Controller was not vested with the jurisdiction to entertain the ejectment petition and pass an order of eviction. 2‑A. The facts leading to this appeal briefly stated are that the appellants filed an ejectment petition tinder section 15 of the Ordinance seeking eviction of the respondents from the premises in dispute stating that these premises bearing C.S. Nos.997, 102 to 105 and upper floor of C.S. No.998 Ward‑A were rented out to the predecessor‑in‑interest of the respondents at the rate of Rs.10 per day wherein they were running tea and meal. Restaurant In reply to this description of the property which was originally rented to the predecessor‑in‑interest of the respondents as given in the ejectment petition, the respondents' plea was that an open plot was rented out to their predecessor by the elders of the present appellants upon which they constructed a big hotel for lodging and boarding in the name of (Shah Jehan Hotel) Frontier Hotel after spending huge amount in lacs and they were the owners of the existing building upon the said plot, The Rent Controller held that the premises was rented out as open land to the predecessor‑in‑interest of the respondents, therefore, its subsequent use as Hotel after construction of the building thereupon would not change the nature of the premises for the purpose of the ejectment matter therefore, the same would be deemed to be premises as defined in section 2(h) of the Ordinance, therefore, the (Rent Controller) had the jurisdiction to adjudicate and entertain the ejectment petition. The ejectment was sought on the ground of need for reconstruction of the building after demolishing the present building being old one which was hid to have beer proved, therefore, on 18‑5‑1994, an. order was passed for the eviction of the respondents from the premises in dispute. The respondents filed appeal against the said order before the High Court of Sindh. It was argued before the High Court that at present, there was a building in which Hotel was being run by the respondents from the very start, therefore, it did not fall within the definition of premises as defined in section 2(h) of the Ordinance in which Hotel had been expressly excluded, therefore, the ejectment petition was not maintainable. The appeal was accepted through judgment, dated 21‑1‑1996 against which this appeal by leave of the Court is directed.

3. Leave was granted to consider whether it was the purpose for which the property was originally rented out which would determine the question of nature of the property for the purpose of ejectment petition or the subsequent use to which the tenant had put the property rented out to him. Admittedly, as mentioned above, the case of the respondents was that an open plot was rented out to their predecessor by the elders of the appellants over which they had constructed Hotel, therefore, the question whether conversion of the premises by them without written permission of the landlord of an open plot into Hotel would disentitle the appellants from seeking eviction of the respondents therefrom under the Ordinance. Section 2(h) of the Ordinance is reproduced below for facility of reference:‑‑ "S. 2 (h) 'premises' means a building or land, let out on rent, but does not include a Hotel".

4. It is clear from this definition that even if a Hotel had been rented out to the tenant by the owner, the same would not be deemed to be premises for the purpose of maintaining an ejectment petition before the Rent Controller as the same has been expressly excluded from the definition of premises given in the Ordinance as eviction petitions are maintainable only in respect of the premises. It does not mean that where a tenant unilaterally without the written permission of the landlord converts the use of an open plot rented out to him which fell within the definition of premises under this definition, the same would change its nature for the purpose of the said Ordinance. This interpretation finds support from the provision of section 15(2) of the Ordinance which provides that if premises is put to a use different from the one for which the same was let out, it will itself be a ground for seeking ejectment. The unilateral act of the tenant, therefore, of using the property for a particular purpose after it was rented out to him by the landlord, is not the determining factor whether the same would fall within the definition of terms premises as given in section 2(h) of the Ordinance whereas it is the purpose for which the property originally was let out which would determine whether the same falls within the definition of premises to attract the provisions of the Ordinance. In this case, admittedly, the property which was let out to the predecessor‑in‑interest of the respondents was an open plot, therefore, it shall be deemed to be an open plot to attract the provisions of the Sindh Rent Restriction Ordinance, 1979 and definition given in section 2(h) of the Ordinance, as such, the ejectment petition was maintainable and the appellants could not be non‑suited on the ground that subsequently, the respondents had converted the use of the premises to a Hotel.

5. The view of the learned Judge of the High Court was not correct that the premises could be treated or deemed to be Hotel for the purpose of the Sindh Rent Restriction Ordinance, 1979 to oust the jurisdiction of the Rent Controller to order eviction therefrom of the respondents.

6. For the foregoing reasons, this appeal is accepted, the impugned judgment of the High Court is set aside and the case is remanded to the said. Court for decision of the appeal on merits as to need for reconstruction.

7. There will, however, be no order as to costs. Q.M.H./A‑235/S Case remanded.