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P L D 1987 Karachi 273
Before Syed Abdur Rehman, J
DUR MUHAMMAD AND OTHERS-Appellants
Versus
MUHAMMAD QASIM-Respondent
First Rent Appeal No. 7 of 1985, decided on 2nd November 1986.
(a) Sind Rented Premises Ordinance (XV11 of 1979)-
- Ss. 2(b), 13 & 27(3)-Word "premises" - Definition-Words "hotel" and "cafe"-Meaning and difference-Disputed shop being used as a place for serving refreshments such as tea, could be called a "cafe" and not a "hotel" in strict sense of the word-Rent Con troller, held, had jurisdiction to entertain ejectment application in respect of such shop.-[Words and phrases].
Mohan Lal v. Haji Mohomed 1982 C L C 2437 held not applicable.
K. P. Moidoo and another v. Mst. Noor Jehan Begum 1983 C L C 723 ref.
(b) Sind Rented Premises Ordinance (XV11 of 1979)-
-- Ss. 13 & 15-Ejectment on grounds of default in payment of rent and bona fide personal use-Tenant making an oral assertion about payment of rent but not producing any receipt or other docu mentary evidence to prove payment-Personal need of landlord also not controverter by tenant-Decision of Rent Controller on points of default and requirement of disputed shop by landlord for his bona fide personal use, held, would not call for interference-Order of Rent Controller upheld and appeal dismissed.
Muhammad Hanif Mangi for Appellants.
Mazhar All Siddlqui for Respondent.
Date of hearing : 2nd November, 1987.
This appeal is directed against the order of Rent Controller, Shikarpur dated 16-12-1984 whereby he directed the appellant to put the respondent in vacant possession of the disputed shop.
The respondent filed this ejectment application against the appellant wherein he claimed that he bad purchased the disputed shop bearing C. S. No. 60/2, situated opposite Plaza Cinema, Shikarpur by a registered sale deed in April, 1980 from Puttan Khan. The appellant No. 1 was the tenant of Puttan Khan. He, therefore, became the tenant of the respondent. It is alleged that appellant No. I did not pay or tender any rent for 17 months from April, 1980 to August 1981. It is further alleged that the opponent No. 1 sublet the said premises to opponents Nos. 2 and 3 without consent of the respondent.
The appellant No. 3 filed written statement wherein he stated that he alone was the tenant of the shop in dispute. The other appellants bad no concern whatsoever with the same. He has taken preliminary objection to competency of the Controller on the ground that the premises in dispute was a hotel and, therefore, the Sind Rented Premises Ordinance is not applicable to it. He further stated that he had paid the entire dues from April, 1980 to August, 1981 at the rate of Rs. 50 per month to the respondent at which rate he was paying the rent to Puttan Khan. He however did not obtain any receipt from the respondent because he was his uncle and, therefore, he had, confidence, in him.
Besides this plea of requirement of the premises for bona fide personal use and causing damages to the same were also taken by the respondent, which were dented by the appellant.
On the pleadings of the parties the following issues were framed by the learned Rent Controller: --
(1) Whether opponent have committed willful default in payment of the rent
(2) Whether the applicant requires the shop in dispute for his personal bona fide use
(3) Whether opponent has caused damage to the disputed property
(4) Whether opponent No. 1 has sublet the disputed shop to the opponent No. 3
(5) What should the order be.
The learned Controller after taking into consideration the evidence that was led before him decided all the issues in favour of the respondents except issue No. 3. Consequently, he ordered the ejectment of the appel lants as shown above.
I have heard Mr. Muhammad Hanif Mangi, Advocate for the appellants and Mr. Mazhar Ali M. Siddiqui, Advocate for the respondent.
It was contended by Mr. Muhammad Hanif Mangi, Advocate tha according to the definition of word "premises" under clause (h) of section of the Sind Rented Premises Ordinance, it was not extended to a hotel. He referred me to the written statement of appellant No. 3 wherein he had clearly stated that the disputed premises was a hotel. This plea was not controverted by the respondent nor any such issue was framed by the Controller nor a finding was given that the premises was not a hotel. He relied upon the case of Mohan Lal v. Haji Ali Mohomed (1982 C L C X437), wherein it was held by B. G. N. Kazi, J that the Rent Controller had no jurisdiction to deal with the matter which related to a hotel, in view of section 2(h) read with section 27(3) of the Sind Rented Premises Ordinance, 1979.
As against this Mr. Mazhar Ali M. Siddiqui, Advocate, who appeared for the respondent submitted that in para. 2 of his affidavit appellant No. 3 Badaruddin had admitted that he was running a tea hotel in the disputed premises. This fact was further clarified by Badaruddin in his cross examination wherein he has made it clear at two places that he was running a tea shop in the disputed premises, besides doing the work of goldsmith in that shop. Reliance was placed by the respondent's counsel in the case of K. P. Moidoo and another v. Mst. Noor Jehan Begum (1983 C L C 723) where Fakhruddin H. Shaikh, J. held as follows :-
"The question, therefore, arises whether a "Cafe" can be equated with a 'hotel'. Learned Rent Controller has referred to dictionary meaning of Cafe and Hotel and concluded that a Cafe cannot be equated with hotel. According to dictionary meaning "Cafe" is a place where meals and drinks are served to public generally. It is also popularly used to mean a restaurant or a house for refreshment. So far as the word 'hotel' is concerned according to dictionary meaning, this means a house for accommodation for traveler etc. No exception can be taken to the finding of the learned Rent Controller that Cafe cannot be equated with hotel and thus is not excluded from definition of premises under section 2(h) of the said Ordinance. The ejectment application, therefore, cannot be said to be not maintainable as argued by the learned counsel for the appellant."
On hearing the Advocates of both the parties and taking into consideration the evidence led by the parties, I am of the clear view that the disputed shop is being used as a place for serving refreshment such as tea. It can be called a Cafe and not a hotel in the strict sense of the word. The word hotel has not been defined anywhere in Sind Rented Premises Ordinance, B 1979. The ordinary dictionary meaning of the word hotel would denote that place was being used for the purpose of providing accommodation to the travelers whereas Cafe is a place where meals and drinks are served to public generally.
1, therefore, hold that the learned Controller has jurisdiction to enter tain the application.
So far as the decision of the Controller on the point of default is concerned, do not find any scope for interfering with the same. Appellant No. 3 had made an oral assertion about the payment of rent, which was denied by the respondent. He did not produce any receipt or any docu mentary evidence to prove the payment although the burden was heavily upon him. Hence I uphold the finding on issue No. 1. Similarly, the finding on the point of requirement of shop for bona fide personal use also does not call for interference, as the need of the respondent has not been controverted by the appellants.
In this view of the matter I uphold the order of the learned Rent Controller and dismiss the appeal. The appellants are directed to handover the vacant possession of the shop to the respondent within four months from today.
s. Q./d-1/g Appeal dismissed.
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