P L D 1976 Quetta 92 (PLP)

Date of hearing : 30th June 1976. This second appeal is directed against the order dated 10th February, 1976 passed by the District Judge, Quetta in his capacity of controlling authority under Ordinance VI of 1959 whereby he upheld the finding of the Rent Controller dated 30th August 1975 and directed that the appeal against the later order was not competent.

2. The brief facts of the case are that the respondent is owner and landlord of land bearing Khasra No. 5206 measuring 216 square feet situated in Municipal Ward No. 7, Kansi Road, Quetta. The appellant No. 1 has built superstructure on this land which included a tin shed and three shops. He is using this land for the purpose of running a flour mills. The construction is said to be 21/22 years old. The land in question was taken by the appellant No. 1 on lease at a monthly rent of Rs. 205.

3. The respondent filed an application for ejectment of the appellants of which the appellant No. 2 is occupying shops constructed on the site. The ejectment application was filed on the ground of re-construction for which he bad allegedly obtained necessary sanction from the Administrator Quetta Municipal Committee. The appellant No. 1 took up preliminary objection that the premises in question was tot a rented land as defined under section 2 (b) of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the "Ordinance VI of 1959"). The learned Rent Controller framed the following issues to adjudicate the point on which the parties were at variance. (a) Whether this Court had got no jurisdiction in view of preliminary objection of the written statement of respondent No. 1 ? (b) Whether the applicant requires the plot reasonably and in good faith for construction? (c) Relief The appellants filed an appeal to the learned District Judge against the order of the learned Rent Controller dated 26-11-1973 which was dismissed on 13-4-1974. This appeal was against the order passed under section 13 (6) of the Ordinance. However since the present controversy, is in no manner connected with the filing of the first appeal therefore what happened in this appeal requires no discussion.

4. On 2nd August 1975 the question of jurisdiction of learned Rent Controller was argued and the learned Rent Controller ordered that final order on this issue shall be announced on 7-8-1975. However before the announcement of this order the appellants submitted an application that his witnesses may be summoned as he wanted to adduce evidence on this point. The application was allowed and the witnesses were examined. After recording the statements of the witnesses and hearing the arguments of the parties again the learned Rent Controller held on 30-8-75 that he had jurisdiction to hear the case because what had been leased out to the appel?lants by the respondent was a piece of land which fact was evidenced from the lease deed executed between the parties The rent fixed in the lease deed was also in respect of laud and the land had been given for the purposes of running an industrial concern thereon. No industrial concern had been leased out to the appellants therefore it was not necessary for the respondent to have filed a regular civil suit for the ejectment of the appellants.

5. Feeling aggrieved by the order of the learned Rent Controller the appellants filed an appeal which was dismissed on the ground that no appeal lay against the order of learned Rent Controller whereby he had decided the issue of jurisdiction. In reaching this conclusion he placed reliance on Messrs Kandawala & Co. Ltd. v. Sh. Rashiduddin (1969SCMR721) and Ibrahim v. Mohammad Hussain (PLD1975SC457). It has been held in Ibrahim v. Muhammad Hussain that by virtue of subsection (1) of section 1 5 the right to appeal was restricted to such points only which were covered by section 4, 10, 12 or 13 of the Ordinance but this right could not be extended to the extent of such findings or decisions which were merely incidential or collateral to the actual dispute. The reference was made to decisions such as decision with regard to territorial jurisdiction and it was held that in case of such orders the right of appeal did not exist. In Messrs Kanduwala cfc Co. Ltd., Lahore v. Sh. Rashid?ud-Din and others though the question involved was in respect of the orders deciding the relationship of landlord and tenant but it was also hold that an order whereby a preliminary issue as regards the existence of tenancy was decided no appeal lay. Ho-A ever while discussing the legal position their Lordships further observed that when a civil Court decided a preliminary issue of jurisdiction in favour of the plaintiff to appeal lay against that finding. The actual observation is that "the mere fact that an issue as to jurisdiction has been decided cannot be a ground granting a right of appeal when on the wording of the relevant provision it is not possible to do so. "Keeping in view these findings I am unable to agree with the learned counsel for the appellants that the decision of the learned District Judge that he did not have the jurisdiction to hear the appeal against the order of the learned Rent Controller whereby he had determined the issue of jurisdiction was not maintainable. The issue decided by the learned Rent Controller cannot be treated more than a collateral or incidental issue. The appellants could conveniently agitate this issue in case an adverse order had been passed against them. when the application for ejectment was finally disposed of.

5. On the facts of the case also the appeal is not tenable because what had been leased out to the .appellants was the plot of land whereupon the shops and tin shed in which a flour mill was run already existed. The flour mills itself had not been leased out. In the lease deed it was categorically mentioned that only the plot of land was being) lease out. Thus plot leased out comes within the definition of rented land. Rented land is let out for the purpose of business or trade and in case the landlord wants to eject his tenant from the rented land it would be open to him to approach the Rent Controller for this purpose. It cannot be argued by the tenant in such a case that as he had installed an industry on the rented land therefore its physical character had entirely changed and thus the Rent Controller had lost jurisdiction. It is unconciev?able that any body would obtain land on rent for keeping it vacant. Some industry, business or trade shall be carried out upon the rented land and if the tenants are allowed to raise the plea that although what they had taken on rent was a piece of land but since it was subsequently converted into an industrial concern therefore the case of ejectment if any, filed against them was outside the pale of Rent Controller's jurisdiction. If it- was so held it would create a highly anamolous position. I am therefore of the opinion that even if any business is run or industry is run or industry is installed on the rented land the landlord would always be at liberty to file an application for ejectment of his tenant from the rented land in the Court of the Rent Controller provided he is in a position to show that what be had leased out was rented land alone and not any industrial concern. In the instant case it is undisputed that what bad been leased out to the appellants was a piece of land therefore the Rent Controller enjoyed jurisdiction to entertain application for ejectment. I am thus of the view that the order of the Rent Controller as well as of the District Judge is free from any error.

6. For the foregoing reasons I do not find any substance in this appeal which is hereby dismissed with costs. The case should be sent back to the Rent Controller for decision op merits. S. Q. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.