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(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

-- Ss. 2 & 13 (3) (a) (i) (a)-Rent deed showing that lower part of "house" leased out to tenant for manufacturing tiles-Nothing stated in rent deed that with leased premises installed machinery was also leased out to tenant-Tenant in written statement and at no stage raising objection that Rent Controller had no jurisdiction to try ejectment petition on ground of premises being factory-Held, lease being not that of factory but of "premises" to run factory, jurisdiction of Rent Controller not ousted.-[Jurisdiction].

Noor Muhammad Khan v. Haji Muhammad Ali Khan P L D 1973 S C 218 ; Ghulam Farid v. Mian Farooq Nazir P L D 1979 Lab. 673 ; Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd. P L D 1976 S C 781 and Ahmad Aziz Zia v. Muhammad Siddique P L D 1982 Lab. 37 ref.

(b) Civil Procedure Code (V of 1908)-

---- O. XIV, r. 1-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13-Objection as to non-framing of issue should be raised and pressed before original Court at proper time.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

-.- Ss. 2 (a) & 13 (3) (a) (i) (a)-Bona fide residential need by landlord Composite building (both residential and non-residential)-To be treated as residential-Residential building leased as such but put to non-residential use or portion of such building leased for or put to non-residential use whether with or without permission of landlord Leased portion to be treated as retaining its residential character-Landlord has right to claim such premises for his bona fide residential need.

Muhammad Bashir's case P L D 1975 Lab. 254 and Gul Afzal Khan's case P L D 1979 Lah. 398 ref.

Rana Khalilur Rehman's case P L D 1983 Lab. 331 ; Nasir-ud-Din's case N L R 1979 Lab. 551 ; Raja Qurban Khan's case 1980 S C M R 590 and Sh. Muhammhd Asif's case 1981 C L C Lab. 562 fol.

(d) Provisional Constitution Order (I of 1981)-

-- Art. 9-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(3)(a)(i)(a)-Both lower Courts giving concurrent findings on issue-No misreading of evidence found-High Court, declined to interfere in matter under constitutional jurisdiction.

Sh. Muhammad Asif's case 1981 C L C 562 ref.

Habib-ul-Wahab AI-Khairi for Petitioner.

Gul Zarin Kiani for Respondents Nos. 1 and 2.

Nemo for Respondent Nos. 3 and 4.

Dates of hearing : 18th, 22nd and 25th June, 1983.

This is a constitutional petition filed by Syed Amjad Ali Shah, petitioner, calling in question the judgment of an Additional District Judge of Rawalpindi dated 10-2-1983 dismissing his appeal. Earlier, a Rent Controller of Rawalpindi, by his judgment dated I1-5-1982, had ordered the eviction of the petitioner from the lower portion of House No. 1/136, Iqbal Road, Rawalplndi City.

2. It is the case of the .petitioner that by rent deed Exh. A. 2, Iqbal Ahmad Farooqi and Ramzan Ahmad Farooqi, respondents Nos. 1 and 2, leased out the lower portion of property No. 1/136, lqbal Road, Rawalpindi City, comprising five rooms, to him for the purposes of manufacturing tiles and that since then he has been running a factory under the name and style of "Karkhana National Tiles and Jali Works" and receiving receipts for rents from respondents Nos. 1 and 2 in the said name. It is the petitioner's contention that as he is running a factory in the disputed premises, the said factory neither comes within the definition of "residential building", nonresidential building" or "rental land", as defined under section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and that neither the Rent Controller, Rawalpindi, nor the Additional District Judge has the jurisdiction to order his eviction, as they have done. It is lastly urged that as the petitioner did mention in his written statement that the disputed premises were rented out to him for the production of tiles and Jalis under the name and style of the "Karkhana National Tile, and Jali Works", Allama Iqbal Road, Rawalpindi, the Rent Controller should have framed an issue as to whether the eviction petition was competent before him and since the same was not done, his order and that of the appellate Judge are without lawful authority and the case should be remanded back far the framing and determination of the said issue, after evidence of both sides is allowed to be recorded on the same.

4. On behalf of the respondents/landlords, it is submitted that the petitioner never in his written statement raised the objection that the Rent Controller had no jurisdiction to try the eviction petition, on the basis that the premises in dispute was a factory, and that as he never raised such an objection, nor prayed for such an issue, he cannot be allowed to do so now in writ jurisdiction. It is further contended that where a building or vacant piece of land is leased out for the purposes of trade or business, such as for the running of a factory, as in the present case, the lease would be treated as that of a "building" or "rented land", as defined in the West Pakistan Rent Restriction Ordinance, 1959, and the Rent Controller would have the jurisdiction in the matter to determine the dispute between the parties. In this connection learned counsel has referred to Noor Muhammad Khan v. Haji Muhammad Ali Khan (P L D 1973 S C 218) and Ghulam Farid v. Mian Farooq Nazir (P L D 1979 Lab. 673). It is submitted that only when the premises with the machinery requisite for a particular manufacturing process are both leased out together, that the West Pakistan Urban Rent Restriction Ordinance, 1959, does not apply. In this connection, learned counsel has referred to Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd. (P L D 1976 S C 781) and Ahmad Aziz Zia v. Muhammad Siddlque (P L D 1982 Lah. 37).

5. I have given my anxious consideration to this case. Para. I of the Rent Deed Exh. A. 2 clearly shows that the lower part of the "house" bearing property No. 1/136 situate on Allama Iqbal Road, Rawalpindi City, was leased out to the petitioner for manufacturing tiles. There is nothing stated in th rent deed that with the leased premises, installed machinery was also leased out to the petitioner. In short, what was leased out to the petitioner was the f ground floor of a house, so that the same could be used by the petitioner for his trade or business relating to the manufacture of tiles. In Messrs Rehman Cotton Factory's case (P L D 1976 S C 781) where a running Cotton Ginning Factory, equipped with machinery, was let out, the Supreme Court held that West Pakistan Urban Rent Restriction Ordinance, 1959, stood excluded in the case as, in essence, the lease was for the use of the machinery which was permanently fixed in the disputed premises and not of the said premises simpliciter. This view was followed in Ahmad Aziz Zia's case. In Noor Muhammad Khan's. case, where vacant land with some shops was leased out for the construction of a cinema house, it was held that as the word "building" included land let therewith, the lease could be treated as that of a "building" and even if it was treated as that of "rented land", the Rent Controller had jurisdiction. In Ghulam Farld's case where vacant land was leased out for the purposes of running a re-rolling mill (a factory), it was held that as the land was rented out for the purpose of a factory and not the factory itself, it was a case of leasing out property for the purpose of trade or business and that the jurisdiction of the Rent Controller did not stand excluded. In these circumstances, there cannot be any doubt that in the case in instance, the lease was not of a factory but of premises to run a factory and, therefore, the jurisdiction of the Rent Controller was not ousted.

6. It is the case of the petitioner that an issue should have been framed by the learned Rent Controller as to whether his jurisdiction stood ousted and that since he had not done so, the case should be remanded back to him for that purpose. I am afraid this objection cannot prevail Any objection as to the non-framing of an issue should be raised and pressed before the original Court at the proper time. In the written statement, the petitioner had at no stage raised the objection that the learned Rent Controller had no jurisdiction to C try the respondent's eviction petition on the ground that the disputed premise was a factory and that, therefore, the learned Rent Controller had no jurisdiction. As I have already submitted above, the learned Rent Controller' jurisdiction was not ousted in the instant case. In these circumstances, nothing turns on this objection, which is rejected.

7. The present case is one where the respondents have prayed for the possession of the disputed non-residential premises for their bona fide residential need. The earlier view of this Court, as reflected in Muhammad Bashir's case (P L D 1975 Lah. 254) and Gul Afzal Khan's case (P L D 1979 Lah.398), was that where a building was residential, but a part thereof. was let out for commercial use, the disputed premises was treated as non-residential and the landlord was treated as having no right to claim the same for his bona fide residential need. The ratio decidendi laid down in these cases was that the premises in dispute which were rented out by the landlord were alone to be considered to find out whether the building was used exclusively for purposes .of business or residence or partly for business and partly for residence and any portion of the building not so leased, but in possession of the landlord, was to be totally ignored from consideration However, this view has undergone a shift, as is reflected in Rana Khalilur Rehman's case (P L D 1983 Lah. 331), Nasir-ud-Din's

case (5), Raja Qurban Khan's case (1980 S C M R 590) and Sh. Muhammad Asif's case (1981 C L C 562) in which it has been held that where a building is composite (both residential and nonresidential) then it would be treated as residential and where a building is residential and leased out, as such, but or put to non-residential use, or a portion of such building is leased out for or put to non-residential use, whether with or without the permission of the landlord, the leased portion is treated as retaining its residential character and the landlord is treated as having a right to claim the same for bona fide residential need. In the instant case, both the lower Courts have given concurrent findings on issue No. 3. There is no misreading of evidence. This Court, therefore, in constitutional jurisdiction, E should not interfere in the matter. See Sh. Muhammad Asif's case.

8. For the foregoing reasons, there being no merit in this petition, the same is dismissed.

M. Z. M. Petition dismissed.

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