1999CLC2012 (PLP)

On the basis of the pleadings of the parties, the following issues were framed:‑‑

"(1) Whether the opponent is wilful defaulter in payment of rent from October, 1984 to May, 1985? (2) Whether the case premises is required by the applicants for their personal bona fide use? (3) What should the order be?" After hearing the learned counsel for the parties, the learned Rent Controller, vide his judgment, dated 11‑8‑1997, allowed the rent case on the ground of personal requirement of the rented premises by the respondents. However, issue regarding default in payment of rent was decided in favour of the appellants, hence this appeal. Mr. Imran Ahmed, the learned counsel for the appellant contended that the premises is a workshop and does not fall within the definition of a "building" as defined under section 2(a) of Sindh Rented Premises Ordinance and as such the learned Rent Controller had no jurisdiction to entertain the rent application and the respondent/landlord should have filed the suit instead. He referred to para. 2 of the application which indicates that the disputed premises is a workshop‑cum‑godown. He further contended that the workshop, factory, mill are of the same category and do not fall within the meaning of definition of a building given in the S.R.P.O. His next contention was that the landlord/respondent had received vacant possession of the shop vacated by Messrs Shabbir & Company, one of the tenants, and as such the same was sufficient for the landlord/respondent for his business purposes‑ According to him there is no consistency in pleas raised on behalf of the landlord/respondent in application viz. a viz. evidence and as such he failed to establish his bona fides in regard to the requirement of the disputed premises for personal bona fide use. On the other hand Mr. H.A. Rehmani, the learned counsel for the respondent/landlord contended that the disputed premises cannot be called a factory but is a workshop‑cum‑godown and falls within the definition of building. According to him since this plea was not raised before the Rent Controller the same cannot be raised now at the appellate stage. I have heard Mr. Imran Ahmed, counsel for the appellants and Mr. H.A. Rehmani, counsel for the respondents and have gone through the record and have also perused the case‑law cited before me. The word "Building" has been defined in the Ordinance as:‑‑

"(a) 'Building' means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garrage, out house and open space attached or appurtenant thereto;" and includes "(a) A Shed or wooden hut. (b) A Compounded wall. Open space or garden to a building. (c) Any additional construction in a building. (d) Any garrage to a building. (e) Any part of a building situated separately from the main building." The ordinary meaning of the word workshop according to Chambers 20th Century Dictionary are:‑‑ "Workshop a room or shop where work is done: a group of people working on a creative or experimental project." Mr. Imran Ahmed, the counsel for the appellants/tenant in support of his contention relied on the case of Muhammad Ismail v Abdul Habib PLD 1993 Kar. 181 wherein the meaning of word "fixtures" as used in section 2(a), Sindh Rented Premises Ordinance, 1979, has been given as "a thing fixed or fastened in position; articles of personal nature affixed to the free‑hold". According to Black's Law Dictionary "fixture" is an article in the nature of personal property which has been so annexed to the realty that it is regarded as a part of the land". In the said case a portion of plot of land where saw mill was set up by the owner/landlord was given to the respondent together with the construction and machinery against the payment of Rs.5,000 per month under the tenancy agreement. The landlord filed an application under section 15 of the Sindh Rented Premises Ordinance seeking eviction of the respondent on the ground of default and personal use. The respondent raised an objection that the jurisdiction of the Rent Controller is ousted as the premises were saw mill which does not fall within the meaning of the word "premises" as defined under section 2(h) of Sindh Rented Premises Ordinance and consequently, the application was dismissed by the learned Rent Controller. The essential question arose was whether the machinery installed in the factory or mill can be said to be "fixtures" within the meanings of section 2(a) of Sindh Rented Premises Ordinance In the appeal it was held that if the Legislature wanted to include "factory" or "mills" within the definition of "building" it could have expressed so in plain words and accordingly the appeal was dismissed. In another case of MT Hemani v. Abid Ali PLD 1994 Kar.

112. A similar question was raised where a saw mill was installed on the disputed premises and already existed at the time when the said mill was rented out to the tenant. As such the question arose whether it falls within the purview of expression "building" or "land" as defined by section 2(a) and it was held that the saw mill neither could be construed as land nor a building and was clearly excluded from the purview of Sindh Rented Premises Ordinance, 1979, and the Rent Controller had no jurisdiction to try the case. In another case of Namatullah Khan v. 1st Senior Civil Judge and Rent Controller and 2 others 1985 CLC 1675, wherein a question arose in regard to Shams Cinema, Hyderabad, which included the hall of the cinema and other appurtenances to the same and after going through the agreement reached between the parties, it was held "a perusal of the clauses indicates that it is not case of simplicitor of lease of building alongwith the machinery, fixture and fittings but under the lease deed the name of the cinema, the contracts which were outstanding for exhibition of films, the licence under Cinematograph Act and even the staff had been assigned. We are, therefore, inclined to hold that even if we were to place widest meaning to the terms "all fittings and fixtures" employed in clause (a) of section 2 of the Ordinance in place of the words "together with the furniture" which were used in clause (a) of section 2 of the late Ordinance (West Pakistan Urban Rent Restriction Ordinance), the subject‑matter of the present petition cannot be brought within the ambit of definition of "building" given in clause (a) of section 2 of the Ordinance. In the instant case neither there is a mill nor a factory as in para. 3 of the written statement filed in rent case by the present appellant wherein they have admitted that "opponent is the tenant of the open space of land only for which they are paying rent of Rs.204 per month It is submitted that the construction or workshop‑cum‑godown was made by the opponent in 1948 with the permission of the then Hindu landlord". As such the appellant themselves have admitted in their own words the disputed premises as being an open space of land wherein workshop‑cum‑godown was constructed. Again in para. 6 of the said written statement they have used the word "open space of land behind the building built on Plot No.310/KEB A.M. Japan Mansion, Preedy Street, ` Karachi, the opponent had constructed workshop‑godown at their own costs". Adverting now to affidavit‑in‑evidence of Anwar Oosman, one of the partners of the opponent firm, the words used for the disputed premises in their own words "opponent took on rent a shop alongwith an open space attached to the back side of the premises whereupon... opponent had raised a building for "godown". Again in para.3 he states that "on 24th May, 1948, the opponent with the permission created shed on the open space after spending money". In para.8 again the words used are "constructed the workshop". In para. 15 the words used are open space' of plot of land where the opponent constructed godown‑cum- workshop". In the wake of above statements where admittedly the premises have I been named as "godown‑cum‑workshop" and "open space and open plot of land" he contention raised on, behalf of the opponent has no force. Now coming to the next contention that this plea in regard to jurisdiction of Rent Controller was not raised before the trial Court and as such cannot be raised for the first time at the appellate stage. Mr. Rehmani, relied on the case of Muhammad Anwar v. Jamaluddin 1996 SCMR

771. In the said case as the plea that the rented premises were let out as hotel was raised for the first time at the appellate stage it was held that:‑‑

"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. " Admittedly, in the present case this plea was not raised before the trial Court as is evident from the issues framed by the learned Rent Controller as well as from the record. There is no evidence on the record to indicate that it is a mill or a factory. On the contrary there is ample evidence that when the premises were let out it was an open plot of land where subsequently, godown‑cum‑workshop was constructed. In view of the facts of the case the plea that the premises are a factory or a mill is untenable. Further since the plea was not raised before the learned Rent Controller who could record evidence in this regard the same cannot be allowed at this stage. On 12‑6‑1998 the case was fixed for rehearing when Mr. Imran Ahmed further contended that there was no specific plea by the respondent/landlord as regard to requirement of the disputed premises and that the existing premises are not, sufficient and relied on the case of Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051. The contention raised has no force as Muhammad Aslam one of the co‑owners and attorney in paras.6 and 7 of the rent application as well as in paras.5 and ' 6 of the affidavit‑in‑evidence has clearly stated that they need the godown for their goods and face difficulties due to insufficient accommodation. This statement is also confirmed in cross‑examination. The learned Rent Controller has also discussed this plea under point No‑

2. The upshot of the discussion is that the appeal having no merit fails and is accordingly dismissed in limine alongwith the pending application. However, since the appellants are carrying on business on disputed premises they are granted four (4) months' time to hand over vacant peaceful possession of the disputed premises to the respondent/landlord. A.A./O‑5/K Appeal dismissed.