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First Rent Appeal No. 460 of 1980, decided on 18th May, 1982

S. 2 (b) read with S. 27 (3)‑Jurisdiction, challenge to‑Ques tion of law.‑Tenant raising for first time in appeal legal plea of Rent Controller's failure to appreciate that "premises" as defined under S. 2 (b) of Sind Rented Premises Ordinance, 1979 did not in clude hotel' and so ejectment application being not maintainable and Rent Controller had no jurisdiction to decide it‑Held, such . preliminary objection being a question of law touching jurisdiction of Rent Controller could be premitted to be raised in appeal.[Appeal (civil)‑Question of law].

Shujauddin Kureshi v. Mst. Husn Ara Begum etc. P L D 1964 (W. P.) Lab. 292 ; Jiando Khan v. Hakim Muhammad lshfaque P L D 1964 (W P.) Kar. 61 ; Mongol Nuchi v. Abu Moosa Mustafa and others P L D 1958 Dacca 26 ; Muhammad Uris v. Ziauddin 1982 C L C 4 ; A. S. Moghul v. Mst. Khurshid Azmat Ali, P L D 1982 Kar. 406 and Muhammad Hussain etc. v. Muhammad Bashir etc. P L D 1974 Lab. 423 ref.

‑‑ S. 2 (b) read with S. 27 (3)‑Hotel‑Application under S. 13 filed when West Pakistan Urban Rent Restriction Ordinance, 1959 not repealed by Sind Rented Premises Ordinance, 1979‑Premises under dispute a hotel‑Held, provisions of Sind Rented Premises Ordinance, 1979 having been given retrospective effect by enactment itself Rent Controller had no jurisdiction to deal with such matter.

Shujauddin Kureshi v. Mst. Husn Ara Begum P L D 1964 (W. P.) Lah. 292 ref.

Ahmadullah Farooqui for Appellant.

Muhammad Rafique Khanzada for Respondent.

Date of hearing : 25th April, 1982.

This is an appeal against the order dated 6th May, 1980 passed b the VIIth Extra Joint Civil Judge and Rent Controller Hyderabad in Rent Application No. 258/t979 in which he allowed the ejectment appli cation and directed the appellant to hand over vacant possession of the premises within two months from the date of the order.

The facts leading upto the filing of the appeal are as under. The respondent who is owner and landlord of premises bearing No. F/1149/28, Station Road, Hyderabad let out the same to the appellant under lease deed dated 1st March, 1976 for a period of three year sending on 28th February, 1979 at the monthly rent of Rs. 1,375. The respondent filed application under section 13 of the West Pakistan Rent Restriction Ordinance, 1959 for ejectment of the appellant on 21st April, 1979 stating that the period of lease which expired on 28th February, 1979 had not been extended and therefore the lease had terminated and he was required to vacate the premises, but he refused to do so. It was stated in the application that on 6th April, 1979 a notice had been issued to the appellant under registered cover acknowledgment due intimating to him that as verbally informed the respondent required the premises for his personal bona fide use and he should therefore vacate the same. It was the case of the respondent that he had no other place of business in Hyderabad or in the same urban area and he wanted to establish his own personal business in the premises and therefore required the same for his personal bona fide use. It was further pleaded that the appellant had paid rent upto February, 1979, and since, despite demand to vacate the premises he had failed to do so, he was liable to pay rent till he had actually vacated the premises.

The appellant by written objections on 8th August, 1979 denied the fact that the lease executed had expired and stated that the same had been verbally extended by the respondent who had never asked him to vacate the premises prior to 12th April, 1979 on which he had received the notice. :It was further his case that he had sent a cheque for the rent for the month of March, 1979 which was acknowledged by the res pondent who later returned it and therefore he had started depositing the rent in the Court with permission of the Court. With regard to the ground that the respondent required the premises for his personal bona fide use it was the objection of the appellant that the respondent had got two shops in Soldier Bazar Hyderabad, Sind which he had rented out and that the respondent was too old to start any business. The appellant had in the written statement taken the additional plea that the respon dent had filed the ejectment application as a threat to get enhancement of rent. It was his case that in 1973 similar attempt had been made and later the lease was renewed. He further stated that he had invested rupees one Lakh for running the business of the hotel and he had no other property in which he could run the aforesaid business.

The learned Rent Controller, Hyderabad framed the following issues :‑

(1) whether opponent is wilful defaulter from March, 1979

(2) whether the applicant requires the disputed premises for his personal bona fide use

(3) whether the opponent has impaired the value and utility of premises by causing damage and

(4) what should the order be

He decided issues Nos. 1 and 3 in the negative but gave a finding that the respondent required the disputed premises. for his own personal bona fide use and therefore allowed the application for ejectment directing the appellant to hand over vacant possession within two months of the date of his order.

In the instant appeal the impugned order has been challenged on the grounds that the learned Controller misread and misappreciated the evidence on record with regard to the finding that the respondent required the premises bona fide for his own purpose. Mr. Ahmedullah Faruqui the learned counsel for the appellant has raised the further legal plea that the learned Controller had failed to appreciate that "premises", as defined under section 2 (b) of the Sind Rented Premises Ordinance, 1979 did not include 'hotel' and therefore the very ejectment application was not maintainable, and consequently the Rent Controller had no jurisdiction to decide it.

Mr. Muhammad Rafique Khanzada the learned counsel for the respondent has raised the preliminary objection that since the plea with regard to the application far ejectment no being maintainable and with regard to jurisdiction was not taken before the learned Rent' Controller it should not be considered at the stage of appeal. The preliminary objection however can be permitted to be raised in the case of this appeal as a ground since it is a question of law touching the jurisdiction of the Rent Controller. In Shujauddin Kureshi v. Mst. Hussan Ara Begum etc. (where the argument based on the definition of the term "building" given in the Ordinance was being put forward for the first time in the High Court, it was observed that since it was a question of law touching jurisdiction of the Rent Controller it should be dealt with on merits. The aforesaid decision is by Anwarul Haq, J. (as he then was), and the same learned Judge in Jiando Khan v. Hakim Muhammad Ishaque (P L D 1964 (W P) Kar. 61), a decision of the erstwhile High Court of West Pakistan, Karachi relied upon the dictum in Mongol Nuchi v. Abu Moosa Mostafa and others (P L D 1958 Dacca 26) to the following effect :‑

"When a question of law is raised for the first time in a Court of last resort, upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interest of justice, to entertain the plea."

In Muhammad Uris v. Ziauddin (1982 C L C 4) a decision of this Court it was inter alia observed as under :‑

"The rule of pleadings even if it is strictly applied to the proceedings before the Rent Controller which is not the case, only required the appellant to plead the necessary facts leaving the legal inferences to be raised in the arguments."

In another decision of this Court in A. S. Moghul v. Mst. . Khurshid Azmat Ali (P L D 1982 Kar. 406), it was inter alia observed that the appellant had every right to raise a legal issue before the High Court irrespective of the ‑fact whether the plea was taken in his written statement or before the Rent Controller or not. In Muhammad Hussain etc. v. Muhammad Bashir etc. (P L D 1974 Lah. 423) a decision of the Lahore High Court when a legal question was not raised before the Rent Controller but it related to question of jurisdic tion it was held that the High Court may examine such a jurisdictional point, even though it was not raised before the Controller and District Judge.

The application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 was filed on 21st April, 1979 when the aforesaid Ordi nance had not been repealed by the Sind Rented Premises Ordinance, in 1979 which came into effect on 21st November, 1979. In clause 2 (a) of I section 2 of the Sind Urban Rent Restriction Ordinance, 1959 "building" has been defined as under :‑

2. (a) "building" means any building or part of a building let for 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."

In Shujauddin Kureshi v. Mst. Husn Ara Begum, a decision of the Lahore West Pakistan High Court, already referred to, the definition of "building" was referred to and it was observed as under :‑

"It will be seen that the Ordinance is intended to apply to any building or part of a building let for any purpose', and it is clear that the words any purpose' would include the purpose of running the business of hotel, serai, hostel or boarding house in that building. What is being let in such a case is a building and not a room in a hotel or serai etc. and the relationship of landlord and tenant comes into existence between the parties to such and not in respect of the purpose for which the building is going to be used. This last aspect is clear from the clause in the definition to the effect "whether being actually used for that purpose or not". The exception made in the last part of the definition of the term "building" clearly relates to the letting of a room in a serai, hotel, etc., and not to the letting of the entire building in which that room may be situated. To put it differently, the intention clearly seems to be to exclude from the purview of the Ordinance the relationship which comes into existence between the proprietor or other person managing a hotel or a serai etc. ; and a person who hires a room in that serai or hotel etc. for occupa tion as such : but not to exclude the relationship of landlord and tenant which comes into existence between the owner of the building or any other person entitled to receive rent for that building and the person who takes on rent that building as a whole or in part, may be for the purpose of running therein a serai or a hotel etc.

However, the Sind Rented Premises Ordinance, 1979 which has repealed the earlier Ordinance referred to defines "premises" in section 2, clause (h) as under "Premises" means a building or land let out on rent but does not include a hotel."

The Sind Urban Rent Restriction Ordinance, 1959 was repealed under section 27 of the Ordinance which provides in subsection (3) thereof that all cases instituted under the Sind Urban Rent Restriction Ordinance, 1959 and which immediately before the commencement of the Ordinance were pending before a Controller shall notwithstanding any orders made otherwise by the Controller be continued and disposed of in accordance with the provisions of the Ordinance, and any proceedings taken or orders made in such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under the Ordinance. It is, therefore, clear that the provisions of the Ordinance have been given retrospective effect by express wording in the enactment itself. It is, therefore, apparent that inasmuch as the ‑disputed premises is a hotel, the Controller had no jurisdiction under the Ordinance to deal with the matter.

In view of the legal position, as discussed above, the appeal is allowed and the impugned order of Vt1th Extra Joint Civil Judge and Rent Controller, Hyderabad dated 6th May, 1980, is set aside. Under the circumstances stated, however, no order is being passed with regard to costs.

K. M. A Appeal allowed.

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