1992 PLP 893 (MLD)

The material facts culminating into this appeal filed. under section 21 of the Sindh Rented Premises Ordinance, 1979, briefly, are that the appellant is a Hindu Religious and Charitable Trust, registered with the Registrar, which is managed by a Board of Trustees under a scheme framed by the District Court Karachi, in Suits Nos.10 and 11 of 1975, whereby Tirathdas Kallumal is the Managing Trustee. The appellant owns numerous properties including PLot No.1R‑8/25, Khan Muhammad Compound, R.T. Savant Road, Dharamchiwara, Karachi, a portion of which was on lease with Fazal Shah, father of respondents on a rent of Rs.30 P.M. The said Fazal Shah failed to pay rent to the appellant with effect from March 1969. He also raised construction on the open plot leased out to him without the permission of the appellant and also sublet a portion thereof to other persons. On 28‑5‑1969 the appellant filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed) seeking the eviction of said Fazal Shah on the aforesaid grounds. Fazal Shah resisted his eviction by denying all allegations. According to him the said plot was leased out to his brother in the year 1947 at the rate' of Rs.3 P.M. The default in payment of rent was disputed in specific terms. According to him the Trustees were interested to increase the rent and in order to put pressure upon him the grounds for ejectment were coined. The said Fazal Shah died during the pendency of the ejectment proceedings and consequently the respondents who are his legal heirs were brought on record. The appellant examined Noor Muhammad (P.W.1), their Manager, while the respondents examined one of them, namely, Syed Mutahar Shah (D.W.1). On 20‑12‑1980, the VIIIth Senior Civil Judge and Rent Controller, Karachi. allowed the application directing the eviction of the respondents. This order was challenged before this Court in First Rent Appeal No.71 of 1981 which was allowed on 24‑2‑1985 by Zahoor‑ul‑Haq, J. who was pleased to remand the case with the following order:‑‑ . . 'This appeal is directed against the judgment of.VI11th Senior Civil Judge and Rent Controller, Karachi, dated 20th December, 1980

2. Mr. Abu Ashraf and Mr. S. Abbas Zia have agreed that the‑ejectment order in question may be set aside and the matter may be remanded back to the VIIIth Senior Civil Judge and Rent Controller, Karachi, for fresh decision of the application and in particular to decide whether the appellant was a tenant of the respondent in respect of the land in question as .envisaged in section 2(f) of Sindh Urban Rent Restriction Ordinance, 1959. The parties would be allowed to lead fresh evidence and the‑ case will be decided within six months of the receipt of R & Ps from this Court as it is a Very old matter."

3. On remand, .the appellant examined Tirathdas (P.W.2), but the respondents absented themselves and consequently their. side was closed.

4. On the pleadings of the parties following issues were framed:‑‑‑. (1) Who are the trustees and who is the Managing Trustee? (2) Whether the newly‑constituted Trustees served notice under section 13‑A of West Pakistan Rent Restriction Ordinance? (3) Whether opponents have committed default in payment of rent? (4) Whether the entire Plot No.1R 8/25 is huge plot and covered with buildings all over including the building in question? . (5) Whether the construction in question is unauthorised and without the consent or knowledge of the applicant? (6) Whether the applicant permitted the opponent to renovate the existing old structure on the condition of enhancing the rent from Rs.3 per month to Rs.30 per month? (7) What is the area of the rented plot and for what purpose was it let by the then trustees? (8) To what relief, if any; the applicant is entitled?

4. On‑ the assessment of evidence available on. record the learned Rent Controller decided issue No.1 in negative and as a necessary corollary to this finding dismissed the application filed by the appellant under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed), seeking the ejectment of the respondents. This order, dated 29‑11‑1988 is the subject‑matter of the present appeal.

5. I have heard Mr. Syed Abbas Zia, learned counsel for the appellant and have examined the record of this case carefully. The respondents have preferred to remain absent.

6. The learned counsel for the appellant has contended with force that the order of remand passed by this Court was for limited purpose and the Rent Controller ought to have returned the record after making, compliance without recording the final order. I have examined the judgment passed by this Court on 24‑2‑1985, reproduced above, and in view of the clear pronouncement the argument, in my view, is wholly misconceived for the simple reason that the case was remitted to Rent Controller for fresh decision and not for recording of the additional evidence. The intention of this Court is apparent from the following sentence:‑‑‑ "Mr. Abu Ashraf and Mr. S. Abbas Zia have agreed that the ejectment order in question may be set aside and the matter may be remanded back to VIIIth Senior Civil Judgeand Rent Controller, Karachi, for fresh decision of the application and in particular to decide whether the appellant was a tenant of the respondent in respect of the land in question as envisaged in section 2(f) of the Sindh Urban Rent Restriction Ordinance, 1959."

7. I now proceed to examine the case on merits. Admittedly an open plot was leased out .to Fazal Shah, father of the respondents. Para 6 of the application for ejectment filed by the appellant is self‑explanatory and for the sake of convenience is reproduced below:‑‑‑ "That the portion of land rented to the opponent was not to be constructed without sanctioned plan and could be used only for residential building purposes and the unauthorised constructions have infringed the conditions of tenure on which the rented land is held by the applicant." 8. ‑ The purpose for which the plot was tented out is again clear from the following statement made by Noor Muhammad (P.W.1), Manager of the appellant:‑‑‑ "The plot was given to the opponent for the residential purposes."

9. Tirathdas (P.W.2), who is the Managing Trustee of the appellant has reaffirmed this position. The question which arises now is, whether an application under section 13 of the West Pakistan Urban Refit Restriction Ordinance, 1959 (since repealed) was competent in respect of an `open plot' renied out primarily for residential purpose. Since the decision of this point hinges on the interpretation of sections 4a), 2(d), 2(e) and 2(f) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed), it would be convenient to read them together. Section 2(a) defines `building', in the following words:‑‑‑ `Building' means any building or part of a building let far any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let therewith but does not include a room in a `Sarai', hotel, hostel or boarding house."

10. Non‑residential building as defined by section 2(d) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed), means a building being used solely for the purpose of business or trade. The residential building as defined under the aforesaid Ordinance means any building which is not a non‑residential building. Section 2(1) of the West Pakistan Urban Rent.1 Restriction Ordinance, 1959 (since reliealed) defines the term "rented land" in the following words:‑‑‑ "Rented land means any land let separately for the purpose of being used principally for business or trade."

11. Admittedly the disputed land was not rented out to the predecessor of respondents alongwith a building and, therefore, it is not covered by the definition of "building", reproduced above. Likewise the said land does not fall within the purview of "non‑residential building" or "residential building" as defined by sections 2(d) and 2(e) reproduced above. The land, although let separately is also not a "rented land" within the meanings of section 2(f) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed), as it was not rented out for the purpose of being used principally for business or trade. The words used in this section are wide enough to include a letting for any purpose mentioned therein, viz. being used principally for business or trade and not otherwise.

12. Mr. Syed Abbas Zia, learned counsel for the appellant has asked me to put a wide interpretation upon the language of section 2(f) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed) by including the purpose not mentioned therein, but I consider it must of necessity be construed in a more restricted sense and the context in which the words "for the purpose of being used principally for business or trade", occur justifies me in restricting their meaning. The cases of Nandu Mal v. Municipal Committee. Simla, reported in 1924 ILR 543 and Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others, reported in PLD 1973 SC 218, cited on behalf of appellant are clearly distinguishable. In the former case the question "whether a movable wooden shed mounted on wheels was a building "was examined in relation to the provisions contained in section 3(2) of the Punjab Municipal Act, 1911, and was answered accordingly. In the latter citation a piece of land was leased out alongwith 5‑1/2 shops for constructing a Cinema House and it was in this context that the Supreme Court observed as follows:‑‑‑ "It will thus be seen that the terms `building' is very wide and include any land let therewith. In the present case, 5‑1/2 shops were leased out and alongwith it, a vacant piece of land was also let out to Mana Singh. In such circumstances, it is quite clear that the lease of the vacant piece of land was of a building which falls within the definition of `building' in the said Ordinance.

13. The West Pakistan Urban Rent Restriction Ordinance, 1959, which after the dissolution of the Province of West Pakistan was adapted as Sindh Urban Rent Restriction Ordinance, 1959, was repealed by section 27 of the Sindh Rented Premises Ordinance, 1979, which was enforced on 21st November, 1979, in the following words:‑‑‑ "27. (1) The Sindh Urban Rent Restriction Ordinance, 1959, is hereby repealed. . (2) All appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance. (3) All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller be continued and disposed in accordance with the provisions of this Ordinance and any proceeding taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance. (4) Notwithstanding the provision of subsection (2) all orders made in pursuance thereof and order made under the Ordinance mentioned in subsection (1) in any proceedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provisions of section 22."

14. It may be added that the `land' as defined by section 2(e) of the Sindh Rented Premises Ordinance. 1979, means land or land or open space, not being agricultural land or land or open space attached or appurtenant to any building. It was obviously for this reason that the learned counsel for the appellant has contended with force that in view of section 27(3) of the Sindh Rented Premises Ordinance, 1,79, the case. should have been disposed of under the provisions of this Ordinance and not that of repealed Ordinance. A careful examination of section 27 of the Sindh Rented Premises Ordinance, 1979, will make it clear that in the cases covered by subsection (3) the law which determines the rights of the parties is the Sindh Urban Rent Restriction Ordinance, 1959, and the law which regulates the procedure will be the Sindh Rented Premises Ordinance, 1979.

15. Thus, from whatever point of view the matter may be looked at, no exception can be taken to the impugned order. The appeal has got no merit and is accordingly dismissed with no order as to costs. The appellant may seek remedy before the competent Civil Court by filing regular civil suit, if so advised. H.B.T./W‑66/K Appeal dismissed.