1989 PLP 3200 (MLD)

After taking into consideration the evidence produced by the parties, the learned Rent Controller decided Issue No.1 in negative, while Issue No.2 was decided in affirmative, and consequently the ejectment was allowed. This appeal has been filed against the said order of ejectment. Muhammad Bashir respondent No.1 has stated in his affidavit-in- evidence that the applicants are the owners and landlords of the demised shop; while respondent/opponent is tenant in the said shop at the monthly rent of Rs.125. That the father and mother of the applicants are dead, and the applicants Nos. 2 to 5 are minors and orphans. It was further stated that originally Muhammad Usman grandfather of the applicants was the owner and landlord of the demised premises, after his death on 30-12-1955, the above property was inherited by Muhammad Umer, Abdul Ghani, Muhammad Ramzan, Mst. Zaibun-Nisa, Mst. Zainab and Mst. Allah Bachai. That on 7-10-1968 a family settlement was arrived at between the aforesaid co-sharers as a result of which demised shop alongwith some other properties came in share of their father Muhammad Umer son of Muhammad Usman, and the opponent attorned and acknowledged him as landlord and used to pay rents to him. That their father died in April, 1979 and the above property was inherited by them'.` That the opponent was well connected with their family and he had come to offer condolence on the death of their father. He also attorned to them and promised to pay rent to them. He showed them one receipt issued by their father and therefore they started accepting rent from him at the same rate. He has filed the photo copy of the family settlement and the photo copy of counterfoils of the receipts issued to the opponent/appellant. It was further stated that in Rent Case No.1481 of 1986 the opponent has admitted the factum of payment of rents in his written statement, certified copy of which has been produced as Annexure P/3. That the applicants Nos.2 to 5 being minors and orphans require the shop in question for their personal bona fide use and such a legal notice was served on the opponent by Registered A.D. which was duly replied to by the Opponent. However, he has failed to hand over vacant possession and therefore, the application has been filed. On the other hand the opponent/appellant has filed his own affidavit-in- evidence, in which he has stated that he is tenant of the demised premises since more than 20 years and the agreement of tenancy was executed by him and Umer and others in September, 1960. He had taken the premises as hotel and the same is used by him as' such. he has no knowledge if the present applicants have become owners of the premises as no notice regarding the change of ownership was given to him. He never paid rent to the applicants and they never issued rent receipt to them. That from application it appears that applicants Nos.1 and 2 are major and they were not competent to file application under section 14 of the Sind Rented Premises Ordinance, 1979. That he has no knowledge if the applicants Nos. 3, 4 and 5 are minors. That the application is not maintainable in law. In cross-examination he has admitted that his own building is situated about one furlong away from the premises in question. The building which is in his name is three storeyed building, on the ground floor of which there is a godown which is big hall. The grandfather of the applicants died in September, 1955. Muhammad Umer, Muhammad Ramzan, Abdul Ghani, Zainab and others were legal heirs of Muhammad Usman. After the death of Muhammad Usman he was paying rent to Muhammad Umer father of the applicants. However, he has denied that he used to pay rent to Muhammad Umer at the rate of Rs.125 per month. He has admitted that another Rent case being Case No.1481 of 1986 under section 15 of Sind Rented Premises Ordinance, is pending against him. He has admitted that notice of this case was received by him. He has denied that in that notice he was informed that the applicants are legal heirs of Muhammad Umer and are the owners of the property. He did not know if private partition of the property was made on 7-10-1969 between the legal heirs of Muhammad Usman and the demised premises were given to Muhammad Umer. He has admitted that Abdul Ghani is residing in his own house constructed by him on Abdul Majeed Road. He did not know if Mst. Zainab and others are also residing m that building. He did not know if Muhammad Ramzan was given the building situated at Dhobi Ghat towards his share. He has denied a suggestion that Property was partitioned in the year 1968. He started paying rent to Muhammad Umer. He has denied a suggestion that the applicants are landlords of the building. He did not know if the premises in question are required by the minor applicants for their personal use. He does not know if the applicants Nos. 2 to 5 are minors. He has admitted a suggestion that a tea shop is situated in the Pit 4 mises. Muhammad Bashir respondent No.1 has deposed in cross-examination that the opponent is tenant in demised premises since more than 25 years. The agreement was executed by Muhammad L1mer, Muhammad Ramzan and others in September, 1960. The above persons are not applicants in the present case. Notice was given by them to the opponent regarding the change of the ownership of the property. Again stated that no notice was given by the applicants to the opponent but his father gave him notice. After the death of his father the opponent was paying him rent. He has denied a suggestion that the opponent never paid rent to him or to other applicants. He has admitted that there is no signature of the opponent on the counterfoil of the rent receipts produced by him in Court. He has denied that the same are forged. He has denied that the premises in question is a hotel. He had taken the same as Hotel but he is not running a hotel in the premises. His age is about 30 years. He has denied that other applicants are above 20 years. I have heard Mr. S.M. Afzal, learned counsel appearing for the appellant, Mr. Abdul Latif Channa, learned counsel appearing for the respondent, and have gone through the R&P of the case. It has been contended by Mr. S.M. Afzal, learned counsel appearing for the appellant that application was not maintainable in law as two of the applicants were majors. That the premises was a hotel and, therefore, Sind Rented Premises Ordinance was not applicable. Mr. Abdul Latif Channa, learned counsel appearing for the respondent has contended that the appellant has not denied in his written statement that respondents Nos. 2 to 5 were minors and, therefore, it will be presumed as an admission of fact by him. In this connection he has relied upon; PLD 1984 Kar. p. 97 and 1986 Pakistan Supreme Court page 1027; that the demised shop was being used as a refreshment room and not a hotel, therefore, Sind Rented Premises Ordinance was not applicable. I have considered the contentions of the learned counsel. As far as the question of maintainability of the application was concerned, the application shows that the respondents/applicants Nos. 3, 4 and 5 were minors. In para. 2 of the application it is stated that the applicants Nos. 2 to 5 are minors and orphans as their parents are dead. It further shows that they had served a legal notice, dated 10-1-1987 on opponent/appellant. The appellant/opponent has stated in para. 2 of his written statement that he has no knowledge if applicants Nos. 2 to 5 are minors or orphans, as alleged. In para. 4 of the written statement service of notice has been admitted by him. Agreement regarding family settlement has been produced as Annexure P/1 which shows that Muhammad Umer father of the respondent had become absolute owner of the immovable property bearing K.M.C. Temporary Lease Plots No.787, 788, 789, 791 and 792 Old City Survey Street No.K-7, with building thereon on Karabhai, Karimji Road, Nawabad Liyari Quarters, Karachi. The counter- foils of rent receipts produced by the applicant show that the appellant/opponent had paid rent upto December, 1986. Even the appellant has admitted that he used to pay rent to Muhammad Umer father of the applicants. He has even not denied m his affidavit in evidence the fact regarding payment of rent to the father of the applicant. However, he has denied payment of rent to the present applicants. In affidavit in evidence he has stated that he has no information or knowledge that applicants Nos. 3, 4 and 5 are minors. In cross-examination he has deposed that he does not know if the applicants Nos. 3 to 5 are minors. It is further admitted by him that after the death of Muhammad Usman, he used to pay rent to Muhammad Umer father of the applicant. He has not stated in his written statement as well as in affidavit as to whom he was paying rent after the death of Muhammad Umer father of the applicant nor any rent receipt has been produced by him. As far as the question of maintainability of the application was concerned, the word `premises' has been defined under section 2 of clause (h) of Sind Rented Premises Ordinance, which reads as follows: "Premises means a building or land let out on rent but does not include a hotel." However, word `hotel' has not been defined in the Act and, therefore, we have to revert back to the ordinary meaning of word `hotel'. According to Concise Oxford Dictionary `hotel' means a house for accommodation of travellers. According to Chambers Twentieth Century Dictionary `hotel' means a house for accommodation of strangers, an inn, in France, also a public office, a private town house, a palace. The above dictionary meaning is further supported by a decision of this Court in the case of Dur Muhammad and others v. Muhammad Qasim PLD 198'7 Kar. p. 273; wherein it was observed that: - "A place which is used for serving refreshment such as tea can be called Cafe and not a hotel in the strict sense of the word. The Ordinary dictionary meaning of the word `hotel' would denote that place was being used for the purpose of providing accommodation to the travellers whereas Cafe is a place where meals and drinks are served to the general public." The appellant has not said a word in his written statement as well as in his affidavit in evidence that he used to provide accommodation to the people for their stay, Even looking to the fact that the demised premises consisted of one room, which was taken by opponent/appellant on rent initially, under no circumstance it could have been used as a hotel. In view of the above factual as well as legal position` I am of the considered view that the learned Rent Controller has rightly held that the demised premises was not a hotel and the application was maintainable in law. Adverting to the second contention of the learned counsel for the appellant, there is definite assertion in the application that the respondents Nos. 3 to 5 are minors and are orphans. This position was again repeated in affidavit in evidence filed by respondent Muhammad Bashir. The appellant has not seriously challenged this position in his written statement as well as in his affidavit in evidence. He has not even denied that the parents of the applicants were dead. In the case of Muhammad Ali and 7 others v. Sakar Khanoo Bar and others P L D 1984 Kar. 97, it was observed that:- "Where the defendant has given evasive, casual, and half-hearted replies in written statement in reply to the assertion made in the plaint and there is no denial or a definite refusal to admit a fact, the fact stands admitted although the defendant never intended to admit it." The appellant neither controverted the assertions of the respondents that respondents Nos. 3, 4 and 5 were minors and orphans nor has denied this position in his affidavit in evidence. The appellant has further admitted that he was on visiting terms with Muhammad Umer and in that situation he must be knowing the fact that the wife of Muhammad Umer also died after the death of, Muhammad Umer and, therefore, it was natural that he could not deny this aspect of the case. Section 14 of the Sind Rented Premises Ordinance, 1979, under which the present application was moved reads as follows:- "14' Delivery of Vacant Possession.--(1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force the landlord of0 a building who is a widow or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty year within the next six months or has attained the age of sixty years may, b-, notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice not being earlier than two months from the receipt thereof; (Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has become widow or orphan). (2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality. (3) Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary." Looking to the factual as well as legal position, since the respondents had proved that respondents Nos.3 to 5 were minors and orphans, and they had no other premises of their own where they could run their business, and they required the demised premises for their personal bona fide use and, therefore, the learned Rent Controller had rightly decided Issue No.2 in their favour. Merely because respondents Nos. 1 and 2 were major, the relief could not be refused. The order passed by the learned Rent Controller does not suffer from any infirmity and, therefore, the appeal is accordingly dismissed with no order as to costs. However; I allow three months time to the appellant to hand over vacant possession to the respondents and in case he fails to hand over the vacant possession as directed, the learned Rent Controller shall issue writ of Ejectment without issuing prior notice to the appellant, if any execution application is filed. H.B.T./Y-32/K Appeal dismissed.