1996SCMR771 (PLP)

AJMAL MIAN, J

This is an appeal with the leave of this Court against the judgment dated 10-1-1993 of a learned Single judge of the High Court of Sindh passed in F. R. A. No. 11 of 1992, filed by the respondent/tenant against the ejectment order dated 21-11-1991 of the learn IIIrd Senior Civil Judge and Rent Controller, Karachi Central, in respect of the suit shop, in Rent Case No. 458 of 1988 (Old Case No. 2908 of 1985) on the round of personal requirement, allowing the same by reversing the finding the learned Rent Controller. Leave to appeal was granted to consider, whether, the learned Judge in Chambers was justified in reversing the finding of the lea-red Rent Controller on the basis of the material available on record for the reason that personal; requirement, as pleaded in para. 8 of the rent case and the affidavit-in-evidence, was vague.

2. The brief facts are that the appellant filed aforesaid rent case inter alia on the ground of personal requirement. In para. 8 of the memo. of rent case, the following averment was made:-- "

8. That the applicant also requires the said now locked case premises, for his use and occupation and for the use and occupation of his children, to do some business therein. The case premises is no more required by the opponent, since he has closed down his business and is without any justification, keeping the same in his control, under lock and key. Hence this case." The above averment was refuted by the respondent in para. 5 of the written statement as under:-- "

5. Contents of para. 8 of the application are false and untrue to the knowledge of the applicant and emphatically denied. It is denied that the applicant requires the tenement premises for his rise and occupation or for the use and occupation of his children. It is also denied that the tenement premises are locked and that the opponent has closed his business. "

3. The learned Rent Controller, after framing issues and recording evidence by his above order, allowed the rent case on the ground of personal requirement. Against the aforementioned order, the respondent filed aforesaid F.R.A. in the High Court, which was allowed, through the judgment under appeal. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above question.

4. We have heard Mr. Usman Ghani Rashid, learned ASC appearing for the appellant, and Mr. Rehmat Elahi, learned ASC appearing for the respondent. It may be appropriate to deal with the preliminary point raised by Mr. Rehmat Elahi on the question of jurisdiction of the Rent Controller, namely, that since the subject-matter in dispute is a hotel, the learned Rent Controller had no jurisdiction in view of definition of the term "premises" given in clause (h) of section 2 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance. At this juncture, it may be pertinent to refer to the above clause, which reads as follows:

. "(h) 'Premises' means a building or land, let out on rent, but does not include a hotel;" A perusal of above-quoted clause indicates that the definition of the term 'premises' given therein means a building or land let out on rent but it does not include a hotel.

5. In the present case, in para. 2 of the memo. of rent case, the following description of the premises is given:-- "

2. That in the said premises (ground floor) of House No. 703/10, the opponent had been running hotel business." The above para. has been replied to by the respondent in para. 1 of the written statement as under:-- "

1. Contents of paras. 1 and 2 of the application are not denied. However it is submitted that the applicant had received from the opponent a colossal amount of Pugree amounting to Rupees one lac at the commencement of tenancy in the year 1975 while the tenancy agreement executed on 29th June, 1976. The opponent, who is running a hotel business in the commercial tenement premises has also invested a huge amount in the installations of Gas and Electricity connections at his own expense and in his own name as also on fittings, fixtures and furniture etc. "

6. Neither in the memo. of rent case nor in the written statement it was pleaded that the premises were let out as hotel. In the above-quoted para. 2 of the memo. of rent case, the appellant has described the premises as ground floor of House No. 703/10 and it has been stated that therein the respondent had been running hotel business. Whereas in the aforequoted para. 1 of the written statement, the respondent has inter alia averred that he was running a hotel in the commercial tenement premises. He has not stated that the premises were let out as a hotel. Before the Rent Controller no plea was raised by the respondent to the effect that the premises, which were the subject-matter of the tenement, were let out as a hotel in terms of clause (h) of section 2 of the Ordinance and, therefore, the Rent Controller had no jurisdiction in the matter. No issue was framed on this aspect nor any evidence was led and no cross-examination was carried out in respect thereof. However, first time before the High Court, the above plea was raised by the respondent which was repelled by the learned Judge in Chambers on the basis of a judgment of a Full Bench of this Court in the case of Zafar Ali v. Allah Bachayo (PLD 1989 SC 294), in which in paragraph 1 of the rent application, the following averment was made by the landlord:-- "That the opponent is a tenant of the applicant in respect of shop situated on portion of City Survery Plot No. 1547, Ward 'A' situated in Shahi Bazar near Fish Market, Thatta with boundaries as per schedule at the monthly rent of Rs.175 payable on every 1st of the calendar, month and has been doing hotel business therein. " The above averment was replied to as under in the written statement filed by the tenant:-- "That the contents of para. No. l are admitted. It is further submitted that the applicant is son of the previous landlord Haji Abdul Wahid Memon. " In the above report also no plea was raised before the Rent Controller that the premises were let out as a hotel and, therefore, the Rent Controller had no jurisdiction, but before the High Court, first time the above plea was raised, which was accepted. This Court allowed the landlord's appeal against the aforesaid judgment of the High Court and remanded the case to the High Court for deciding the same on merits. In the body of the judgment, after referring the definition of the word "hotel" from the Shorter Oxford English Dictionary, Back's Law Dictionary, 5th Edition, Stroud's Judicial Dictionary, 3rd Edition and Halsfbury's Laws of England, 3rd Edition, the following conclusion was recorded:-- "From the various definitions of the word "hotel" in ordinary grammatical meaning and as used in some of the statutes interpreted judicially, we feel that the concept of hotel ordinarily imports the idea of providing accommodation to travellers and guests and an establishment which, only offers refreshment, would, therefore, ordinarily not mean a hotel." It was also highlighted that the word "hotel" is loosely used. The relevant observation reads as under:-- "The establishments which offer refreshments like eatables and drinks are generally called restaurants or cafes. It is also common knowledge that in mofussil areas of this country the word 'hotel' is loosely used with reference to small road side tea shops. This possibly accounts for the use of the expression 'hotel business' in the eviction application. It may be pointed out once again that if the tenant wanted to urge the plea of want of jurisdiction, he had to move the Rent Controller for framing of such preliminary issue so, that parties could produce evidence on the factual question whether the premises were used as a hotel in the true sense of the word. Having failed to urge this point before the Rent Controller, the tenant was not entitled to take this plea for the first time in appeal, to which a factual plea in defence could be taken by the landlord before the trial Court."

7. Mr. Rehmat Elahi, learned counsel for the respondent, has also referred to a photostat copy of the tenancy agreement at page 37 of the paper book to reinforce his submission that the premises subject-matter of tenancy was a hotel.

8. We do not find the original of the above document in the record of the Rent Controller. Even if it was filed, this does' not improve the case of the respondent. According to respondent's own written statement, the subject-matter of tenancy was a commercial premises where he was carrying on hotel business. The word 'hotel' as pointed out by Zaffar Hussain Mirza, J. in the case of Zafar Ali (supra) is also loosely used by people connoting the place where tea, soft drinks and other eatables are sold and no lodging is provided.

9. Mr. Rehmat Elahi has further referred to the case of Ziauddin Shaikh and others v. Muhammad Rafique and others (1995 SCMR 320), in which this Court remanded the case to the High Court for re-hearing of the appeal as the High Court had failed to take into consideration the additional evidence of five witnesses recorded by the Rent Controller on the question of nature of premises, namely, whether it was a hotel or a restaurant pursuant to the direction of the High Court.

10. The above report has no application to the case in hand as there was no evidence recorded by the Rent Controller on the above question and the High Court had not failed to take into consideration such evidence available on record. The judgment in the case of Zafar Ali (supra) on all fours is applicable to the present case. The above plea is, therefore, not sustainable. The High Court has correctly decided the same.

11. We are inclined to hold that the question, as to whether the premises were let out as a hotel in terms of clause (h) of section 2 of the Ordinance, was a question of fact, which should have been pleaded in the written statement by the respondent if he wanted to oust the jurisdiction of the Rent Controller. The above plea could not have been raised by the respondent first time before the High Court. No doubt a purely legal plea can be raised even before the appellate forum first time with its permission. However, a legal plea, which is founded on factual plane, cannot be raised first time before the appellate forum.

12. As regards the merits of the case, there is overwhelming evidence to prove the personal bona fide requirement of the appellant and his son. It has been proved beyond reasonable doubt that even on the basis of admission of the respondent that the appellant has been carrying on fruit business on ' Thela' . He does not possess any commercial premises for carrying on his business. The same was the plea of the respondent's son who had appeared as a witness. In the cross-examination, it was suggested that he was carrying on business of Carrum Club in a building in Saddar, which suggestion was denied by the appellant's son Javed Akhter. Nothing concrete was brought on record by the respondent to substantiate the above suggestion. Even if we were to accept the above suggestion of the respondent as correct, this would not affect the result as admittedly the appellant or his son does not own the alleged premises where above Carrum Club is allegedly run.

13. We are therefore, of the view that the learned Judge in Chambers was not justified to interfere with the finding of fact on the question of personal requirement correctly recorded by the Rent Controller which was in accord with the evidence on record. The upshot of the above discussion is that the appeal is allowed, the judgment of the High Court is set aside and that of Rent Controller is restored. However, at the request of the learned counsel for the respondent, the respondent is allowed six months' time from today to hand over the vacant possession of the suit shop to the appellant on the condition that he shall pay rent regularly. Additionally, in case the respondent fails to vacate the shop on the expiry of above period of six months, the learned Rent Controller shall issue a writ of ejectment with police aid without any further notice to the respondent. However, there will be no order as to costs. A.A./M-3218/S Appeal accepted.