1988 PLP 318 (CLC)

Mian Nisar Ahmed for Petitioners. Iqbal Haider Zaidi for Respondents. Date of hearing: 22nd November, 1987. This is a constitution petition filed by Haji Ali Muhammad and others, petitioners Nos. 1 to 4; for the quashment of the order of an Additional District Judge of Kasur dated 24‑11‑1983 directing the petitioners to hand over vacant . possession of the premises to Mian Ghulam Muhammad, respondent No.l.

2. The main question for determination in this writ petition is whether the disputed premises leased by Mian Ghulam Muhammad, respondent No.l, to Haji Ali Muhammad and another, petitioners, Nos.l and 2, is a factory or an industrial concern, for which ejectment petition is not competent and the Rent Controller has no jurisdiction.

3. The brief facts of the case are that on 22‑3‑1968 Mian Ghulaml Muhammad, respondent No.l, vide rent deed Ex.A/1, leased property' bearing No.I‑9‑R‑101 situated on Railway Road, Kasur, to Haji Ali Muhammad and Haji Muhammad Amin Butt, petitioners Nos. 1 and

2. The said property was previously an evacuee property and known by the name "Radha Mal Bhagwan Das Mills" and transferred to respondent No.l as an industrial concern. The said property was leased out as a for a period of ten years from 1st May 1968 at a monthly rent of Rs.300 to petitioners Nos. 1 and 2, on the condition that the said petitioners could instal their machinery therein, with the condition that they would dismantle and remove the same on the expiry of the lease. Some part of the property had to be done up before possession was to be delivered on 1‑5‑1968. Permission was also granted under the lease to the petitioners to apply for and secure electricity connection (both general and industrial). It appears that petitioners Nos.l and 2 violated the terms of the rent note, apart from sub‑leasing the property to Master Ghulam Hussain Talat and Mushtaq Ahmad, petitioners Nos.3 and 4, who also damaged the property in dispute, whereupon Mian Ghulam Muhammad, respondent No. 1, filed an eviction petition. claiming the said property for non‑payment of rent, violation of the terms of the tenancy and for personal need. The petitioners resisted the petition on various grounds, including that relating to jurisdiction, on the basis that since the leased property was a factory or an industrial concern, the Rent Controller had no jurisdiction to deal with the case. The Rent Controller, by his order dated 3‑5‑1981, decided the issue regarding violation of the terms of the tenancy in favour of respondent No.l and that regarding jurisdiction, non‑payment of rent and personal need in favour of the petitioners and dismissed the petition. On appeal, the learned trial Judge reversed the findings of the Rent Controller on the issues of jurisdiction, default and personal use and confirmed that regarding violation of the terms of the tenancy and ordered eviction of the petitioners from the premises in question. Being aggrieved by the said order, Haji Ali Muhammad and others, petitioners Nos.l to 4, filed a writ petition in this Court, which is now before me for disposal.

4. The learned counsel for the petitioners has only challenged the finding of the learned Additional District Judge as regards issue No.l. He has not challenged the findings on the other issues. The admitting order of this Court dated 10‑3‑1984 also shows that issue No.l is the only issue on which this petition has been admitted.

5. On behalf of the petitioners it is submitted that the disputed property was acquired by Mian Ghulam Muhammad, respondent No.l, from the Settlement Department as a factory and it was leased out to Haji Ali Muhammad and Haji Muhammad Amin, petitioners Nos.l and 2 as a factory and that therefore the provisions of the West Pakistan Rent Restriction Ordinance, 1959, do not apply to the instant case and the petitioners be evicted. He has read out the terms of the rent deed Ex. A / A in support of his contention. He has also cited M/s. Rehman Cotton Factory v. Messrs Nichimen Co. Ltd., Karachi PLD 1970 Lah. 455 and Messrs Rahman Cotton Factory v . Messrs Nichimen Co. Ltd. P L D 1976 SC 781.

6. On behalf of respondent No.l it is submitted that the empty (Ihata) alone was rented out to petitioners Nos. 1 and 2 and not any factory with machinery therein. In this connection the learned counsel for respondent No.l has also read out certain terms and conditions of the rent‑deed Ex.A/1 and cited Ghulam Farid and another v. Mian Farooq Nazir and another (PLD 1979 Lahore 673), apart from referring to the eases cited by the learned counsel for the petitioners.

7. I have given my anxious consideration to this case. It is true that Mian Ghulam Muhammad, respondent No.l, acquired the disputed property from the Settlement Department as a factory, but the question that arises in the instant case is what was leased out to petitioners Nos.l and

2. The rent deed Ex.A/1 refers to the lease of the property due' there is nothing mentioned in the rent note that the premises contained any machinery or plant of respondent No.1. It is, therefore, apparent that empty building premises were leased out to petitioners Nos. 1 and 2 for the purposes of running some trade or business in which machinery could be installed. In Rahman Cotton Factory v. Nichimen Co. Ltd. (supra), the Supreme Court held that the West Pakistan Rent Restriction Act, 1957, only excluded from its operation "factories equipped with machinery requisite for manufacturing process", on the basis that in essence in all such cases the leases were "for the use of machinery" which were permanently fixed in the premises "and not of premises simplicitor". The words "and not of premises simpliciter" clearly show that the Supreme Court excluded the case of factory premises which were leased without machinery therein as qualifying for exemption. In Ghulam Farid and another v. Mian Farooq Nazir and another (supra) where vacant land was leased for setting up a factory, it was held that it was a case of leasing out property for the purpose of trade or business and that the provisions of the West Pakistan Urban Rent Restriction Ordinance were not excluded. In Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others P L D 1973 SC 218, in which land with some shops was rented out for the purposes cf constructing a cinema, it was held that the leased premises, even if treated as "rented land", it was leased for purposes of business or trade and therefore the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, applied to it. It is clear in the instant case that the premises were not leased fully equipped with any machinery as a factory. At best, one can only say that empty premises fit for running a factory were leased to the petitioners Nos. 1 and

2. In these circumstances, the provisions of the West Pakistan Rent Restriction) Ordinance are not excluded. The Rent Controller had jurisdiction to; decide the eviction petition.

8. For the foregoing reasons, there is no merit in this constitutional petition, which is dismissed with costs.

9. On behalf of the petitioners a request is made that some time be granted to them to enable them to vacate after removing their machinery from the disputed premises. The petitioners are not entitled to any further time. However, as a special case, I would grant them one month's time within which to vacate the disputed premises and to deliver its vacant possession to respondent No.l. A.A./A‑219/L Petition dismissed.