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--- Ss. 10. 21 & 22-Lease agreement of saw-mill - Applicability of West Pakistan Urban Rent Restriction Ordinance (VI of 1959) Lessees taking saw-mill from lessors under lease agreement for eleven months-Use of saw-mill dominating whole agreement-Plot whereupon mill situates assigned only secondary position-Words used in agreement further indicating sawmill rather than plot underneath given on hire. Stipulation regarding engagement of employees, payment of wages, income-tax, etc. showing transaction between parties about running of mill-Held agreement with regard to operation of saw-mill and not plot and mere inclusion of plot as part of agreement would' not alter complexion of deal-Held further, saw-mill not governed by West Pakistan Urban Rent Restriction Ordinance, 1959.

P L D 19716 S C 781 and P L D 1979 Lah. 673 ref

---O. I, r. 9-Non-joinder of parties, effect of-Agreement of lease executed by three heirs and other heirs not party to have objection regarding non-inclusion of other heirs, held, raised at time of execution and suit cannot fail merely on ground of non-joinder of certain parties.

Abdul Latif A. Shokoor for Appellant.'

Niazi A. Khaliq for Respondents.

Date of hearing : 18th April, 1982.

Having failed in the two lower Courts the Applicants who are register ed partnership firm have brought this revision application under sec tion I15, C. P. C.

The facts leading to this application, in 0rief, are that one Agaria Ahmed, father of the three respondents had leased out a Saw-Mill under the name and style of 'Agharia Saw Mill' on plot No, 19, Ireland Road, Off Lawrence Road, Karachi, to the applicant's Firms under a lease agree ment dated 1st May, 1969. After the death of Agaria Ahmed, fresh lease agreement was executed between the applicants and the- respondents on 1st October, 1975, photostat copy of which has beers prodticed as Annexure B' (at pages 87-97) on; Court's file. This agreement was, to run for eleven months (i. e, from 1st October, 1975 to 31st August, 1976) with stipulation that its term could be enlarged by mutual consent of the parties.

It is disclosed in the agreement that the hirers (i. e. applicants) deposi ted a sum of Rs. 3,000 as security against damages; if any, caused to fittings, fixtures etc. of the mill and undertook to pay Its. 1,000 as hire charges per month. As the income of hire charges was found inadequate. the respondents decided to run the factory themselves after termination of the agreement on 31st August, 1976. They even served a notice on the applicants to hand over the possession on the date specified in the agree ment. Meanwhile the applicants were said to have withheld hire money from 1st April, 1976 and thus they fell in arrears of Rs. 5,000 until expiry of the agreement. It was alleged that they failed to hand over the posses sion of the mill to the respondents and instead went . on disposing and replacing the part of the machinery with unservicable ones. As a result the respondents were constrained to file a suit with prayer for delivery of possession of the Agaria Saw Mill and payment of compensation at the rate of Rs. 150 per day from 1st September, 1976, until the delivery of the possession and also the payment of hire arrears of Rs. 5,000.

The suit was contested by the applicants who inter alia took the plea that it was not maintainable as it was barred by West P4histan Urban Rent Restriction Ordinance, 1959. They denied the respondents being exclusive owners of the Saw Mill and averred that the suit suffered from non-joinder of necessary parties, as beside three respondents the late Agaria Ahmed had left behind his widow and three daughters as his legal heirs.

However, the suit was decreed and, as pointed out above the appeal filed against the judgment and decree of the trial Court was dismissed by the learned Additional District fudge. This revision petition is directed against the judgment and decree of the learned lower appellate Court.

Mr. Abdul Latif A. Shakoor appearing for the applicants submitted that the lower Courts had no jurisdiction, as the premises in dispute were governed by the West Pakistan Urban Rent Restriction Ordinance, 1959, and their remedy, if any, lay before the Rent Controller. He averred that the said premises was riot a factory' as defined in factory's Act and as such the Supreme Court authority reported as P L. D 1976 S C 731 -was not attracted. In support of his arguments he relied upon P L D 1979 Lah. 673 wherein the aforesaid authority of the Supreme Court had also been referred and considered. His further argument was that the suit suffered from non-joinder of necessary parties, as other legal heirs of the deceased Agaria Ahmed bad not been joined as party to the suit.

Repelling the above arguments, Mr. Niazi A. Khaliq, learned Advocate four the respondents, pointed out that it was crystal clear from the agree ment itself that it was the Saw Mill with all its accessories that had been given on lease, of course alongwith the plot on which it was situate. Consequently his case was covered by the Supreme Court authority refer red to above. The learned counsel further submitted that the Lahore case relied upon by Mr. Latif was distinguishable as in that case the, plot was let out for the purpose of setting up a factory whereas in the instant case it was a factory which had been 'the subject-matter of the lease agreement.

To appreciate the arguments that the suit was not maintainable, it would be necessary to verify from agreement if the Saw Mill was the subject-matter of the lease or, the plot on which it .was situate. In this connection it may be useful to reproduce the pertinent portions of the agreement. The agreement, inter alia, reads :-

"And, whereas the owners have agreed to give on hire and the hirer has agreed to take on hire the said "Agaria Saw Mills" with all its machinery, fixtures, fitting, etc. Schedule of which is given at the foot of this agreement in a running condition for a period of eleven months on the terms and conditions mentioned hereunder :-

(1) That the hire of the said Saw Mill is for a period of eleven months from 1st October, 1975 to 31st August, 1976. The period can be enlarged by mutual agreement.

(2) That during the period of hire and if the hirer holds on there after till the Saw Mill is handed over back to the owners, the hirer shall pay electric consumption charges, regularly by paying electric bills immediately on receipt thereof.

(3) That the hirer has deposited a sum of Rs. 3,000 (Rupees three thousand only) as security deposit against the damages if caused to the fittings and fixtures of the Mill. and the same is refundable after the expiry of the stipulated period of 11 months i.e. on 31st August, 1976 at the time of giving possession to the owners and to their satisfaction..

(4) That the hirer shall use electric power unit, according to Electricity Rules and Factory Act shall be liable to the owners - for the same and shall make good any loss or damage sustained.

(5) That the hirer shall pay monthly hire of Rs. 1,000 (One thousand only) in advance within first week or every month.

(6) That the hirer shall engage the employees at his cost and risk for running the.Saw Mill. The owners shall have nothing to do with it. All the earnings shall be of the hirer and the hirer shall be liable for payment to the - employees for their wages, salaries or remuneration or for compensation for injuries sustained by the employees or for any liability of any kind whatsoever under Work men's Compensation Act, Industrial Disputes Act or any other Act or law in force or that may come into force in future from time to tune and shall be responsible for Income-tax and all other taxes of any kind whatsoever.

(7) That the hirer during the period the Saw Mill remains with him, shall keep the machinery furniture, fixtures, etc. in good and perfect state of repair and condition and shall not remove any part of the machinery, furniture, fixture, etc. from the premises.

Thus the language used in the agreement should serve as a guideline to ascertain the intention of the parties. It would be noticed that use of Saw Mill dominates the whole agreement. The plot on which the Mill situates has been assigned only a secondary position. The words hire, hirer and hire charges used in the agreement are further indicative of the inten tion of tire parties that the Saw Mill rather than the plot on which it is installed was given on hire. Again the stipulation with regard to engage anent of employees for running the Mill and payment of wages to them about payment of income-tax, etc. clearly shows that the transaction) between the parties was about running of the Mill. Taking all this into) consideration I have no doubt in my mind that the agreement was with regard to operation of the Saw Mill and not the plot. Of course the plot on which the Mill stands was included in the transaction. Mere inclusion of the plot as a part of the agreement would not have the effect of altering the complexion of the deal. This being the position the Supreme Court authority referred to above has been rightly relied upon by the learned lower Courts: According to that authority the Factory equipped with machinery for processing and ginning cotton stands excluded from purview of the Rent Ordinance of 1959. In the instant case the position of Saw Mill with all its accessories fitted for cutting and chopping of wood is not different from but is rather at par with the Cotton Factory in the reported case. Accordingly the Saw Mill is not governed by, the Rent Ordinance, 1959 and the judgments of the two lower Courts are unexceptionable in this regard.

As for another objection relating to non-joinder of all heirs of Agaria Ahmed, it would suffice to say that the agreement which was the basis of the litigation was executed only by the three respondents. .Other heirs of Agaria Ahmed were not Forty to the agreement. If the petitioners had any objection in this regard, it should have been raised at the time of C execution of the agreement. Furthermore the suit does not and cannot fail merely on the ground of non-joinder of certain parties. Thus the applicant's objection about non-joinder is also without force.

For the above reasons the Revision Application is dismissed in limine.

K. M. A. Revision application dismissed.

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