M. AMJID BHUTTA Versus ABDUL MAJID TIWANA, D.J.

This order will also dispose of the connected Writ Petition No.2240 of 1988 filed by respondents Nos. 5 to 9, as both the, petitions arise out of the same order and the property forming the subject‑matter of the two petitions is also the same.

2. Facts giving rise to this Constitutional petition, briefly stated, are that Muhammad Aslam Dura, respondent No.3, brought an ejectment petition against M. Amjad Bhutta and, Company, petitioner No. 1, Kaashaf Industries, petitioner No.2, and Muhammad Ashraf, respondent No.4 herein. He sought their eviction from the property in dispute described in the ejectment petition as a house, on the ground of its re‑construction and for his personal need as also for the use and occupation of his sons Muhammad Asghar and Muhammad Afzal. According to the averments made in the ejectment petition, respondent‑landlord had rented out the premises in dispute to Muhammad Ashraf respondent in January 1966 on a monthly rental of Rs.45 who later on set up two Firms; one in the name of his son Amjad Bhutta (petitioner No.1) and the other in the name of his nephew Kaashaf Nawaz (petitioner No.2) and thereafter started obtaining rent receipts in the name of the said Firms although he himself had been paying the rent. Portion of the disputed property in which the Firm‑petitioner No.1 carried on its business was shown red and the portion in occupation of the other Firm viz. petitioner No.2 was shown green in the site‑plan attached with the ejectment petition;

3. Petitioner‑Firms and Muhammad Ashraf respondent filed a joint written reply wherein they took a preliminary objection that the property in ‑dispute was an industrial concern which Was rented out to them as such from the very inception. They had obtained additional electricity connections with the permission of the landlord and had also installed heavy machinery therein. It was thus maintained by them that the premises in dispute being a factory/industrial concern, the Rent Controller had no jurisdiction to entertain and adjudicate upon the ejectment petition. It was further maintained by the tenants that the industrial/commercial premises could not be converted and used for residential purposes. Yet another objection taken in the reply was that Muhammad Ashraf was not the lessee of the property in dispute which stood divided into two portions and each portion was in separate and independent occupation of petitioners Nos. 1 and 2 as tenants. It was thus urged that the ejectment petition was not maintainable as against Muhammad Ashraf and that it was also bad for misjoinder of parties and causes of action.

On facts, the stand taken in the written reply was that the premises in dispute alongwith a motor and certain items of machinery installed thereon were taken on rent by Muhammad Nawaz, father of Kaashaf Nawaz, who after some time, purchased the machinery and with the permission of the owner raised new construction at his own expense and presently it was a big factory. It was further averred by the tenants that the factory was later divided into two portions. One portion remained in occupation of Muhammad Nawaz who continued running his factory therein and paid the rent therefor, whereas the second portion was rented out by the owner to Muhammad Ashraf who, too, with the permission of the owner installed heavy machinery thereon besides raising new construction at his own cost. Later on, Muhammad Ashraf sold his factory alongwith his tenancy rights to his son Amjad Bhutta under due intimation to the landlord who then rented out that portion to the latter at the rate of Rs.150 per month and since then Amjad Bhutta is in possession thereof as a tenant. Correctness of the site plan attached with the ejectment petition was also denied by the tenants.

4. Pleadings of the parties gave rise to the following issues:‑‑

(1) Whether this Court lacks jurisdiction to try the application in view of P/O No.1 of the written reply? OPR

(2) Whether the application is liable to be dismissed on the basis of objection raised in preliminary objection No.2 of the written reply? OPR

(3) Whether the respondent No.1 is not a tenant in demised premises an application is not maintainable to his extent? OPR

(4) Whether the application is bad/defective on account of mis‑joinder of parties and causes of action as maintained in P/O No.4 of the written reply? OPR

(5) Whether the site plan attached with the ejectment application is absolutely incorrect? OPR

(6) Whether the applicant in good faith requires the disputed property for the use and occupation of his own as well as sons? OPP

(7) Whether the plaintiff in good faith requires the disputed property for re construction and as such has already obtained necessary sanction from the Municipal Corporation, Sialkot? OPP

(8) Relief.

5. Both the parties led evidence, oral as also documentary, to prove their respective pleas. Learned Rent Controller after scrutinizing the evidence on the record came to the conclusion that at the time of the origin of the tenancy, only the vacant land alongwith the industrial electric connection was rented out and at that time, there was no machinery installed thereon. It was accordingly held by the Rent Controller that since the lease was in respect of the premises and not the machinery which the tenants had installed themselves, he had the jurisdiction to, try the ejectment petition. Issue No.1 was thus decided against the tenants. Issue No.2 based on the preliminary objection that the premises in dispute being industrial/.commercial, it could not be converted into residential property was also answered against the tenants and it was held that the objection was not countenanced by any provision of the Rent Restriction Ordinance. Reliance in this behalf was also placed on 1986 CLC 591 wherein it was held that the conversion of a non‑residential building into a residential house was not barred under section 11 of the Ordinance. Similarly, issue No.3 was also found against the tenants with the observation that Muhammad Ashraf respondent having admittedly entered into possession of the ‑premises as a tenant, the mere fact that he later inducted his own son into the property did not mean that he himself ceased to be the tenant. Issues Nos. 4 and ‑5 were also decided against the tenants. On issues Nos. 6 and 7, it was held by the Rent Controller that the requirement of the landlord for re‑construction and personal use and occupation was established by oral and documentary evidence and it was observed that he was not shown to be in possession of any property "sufficient and suitable for his own as well as his sons' need". With these findings, eviction petition was accepted by the Rent Controller who directed the tenants to deliver the vacant possession of the property in dispute to the landlord within four months and to remove, at their own expense, the machinery installed and construction raised by them. This was vide order of the Rent Controller dated 4‑1‑1987.

6. Feeling aggrieved, Muhammad Ashraf as also the present petitioners preferred a joint appeal. Legal heirs of Muhammad Nawaz also brought a separate appeal against the order of the Rent Controller. A point was raised in both the appeals that it was Muhammad Nawaz who had taken the disputed premises on rent and had remained in occupation until his death whereafter his legal heirs had been running the factory through Kaashaf Nawaz, the grown up son. All of them were thus necessary parties but they were not impleaded in the ejectment proceedings with the result that they were condemned unheard. On behalf of the landlord, on the other band, it was submitted before the appellate Court that Muhammad Nawaz had never been the tenant of the disputed premises and that even if he were so, the tenancy never passed on to his legal heirs because his son Kaashaf Nawaz who was the sole proprietor of the Firm known as Kaashaf Industries had been running the business to the exclusion of other heirs of his father. It was contended that if they really had any right or interest in the tenancy, they would have certainly come forward during the pendency of the ejectment petition and sought to be impleaded as parties therein but they took no such step, stood by and appeared on the scene only after the ejectment order was passed. Learned District Judge while dealing with this aspect of the matter observed that the evidence led by both the parties "travelled beyond their pleadings". For instance, it was noted that whereas it was averred in the ejectment petition that the premises were rented out to Muhammad Ashraf respondent who later introduced his son and nephew therein and established two firms, the landlord while appearing as a witness stated that he had rented out the disputed premises to Muhammad Ashraf and his brother Muhammad Nawaz who later on inducted their respective sons and established two separate Firms. Similarly, the tenants in their joint written reply had denied that Muhammad Ashraf had any connection with the disputed premises but when appearing as a witness, Muhammad Ashraf admitted that he had taken half of the property in dispute on rent from the landlord and his brother Muhammad Nawaz took on rent the other half portion and they went on doing their business until they inducted their sons who set up their separate firms. Be that as it may, learned District Judge on consideration of the evidence led by the parties, came to the conclusion that "the disputed premises was let out by the petitioner‑respondent to Muhammad Ashraf respondent‑appellant No.1 and his brother Muhammad Nawaz to the extent of one‑half each and in their respective portions they set up some kind of industrial concern. With the passage of time they continued to expand their business and even added certain structures thereon. Muhammad Nawaz died sometime in the year 1976 and he was succeeded by his son Kaashaf Nawaz who went on working under the name and style of above firm. Similarly Muhammad Ashraf respondent‑appellant inducted his own son Muhammad Amjad though as an elderly person and experienced hand he went on providing guidance and necessary expertise to them and even went on dealing with the landlord in the matter (;f payment of rent of both the firms and obtaining receipts from him in the name of two different firms of which they continued to change names from time to time in order to suit their business interest and also to avoid payment of income tax as it has been alleged by the petitioner‑respondent. In any case, after the death of Muhammad Nawaz in 1976, only his son Kaasbaf Nawaz as sole proprietor of the said firm went on dealing with the petitioner‑respondent either directly or through his uncle Muhammad Ashraf as his tenant or lessee of one‑half of the disputed property and other heirs of Muhammad Nawaz (deceased) did not come into picture till the ejectment application filed by the petitioner/respondent was accepted and they brought Appeal No.26 of 1987, despite the fact that they were fully aware about the pendency of the ejectment petition against Kaashaf Nawaz, Muhammad Amjad and Muhammad Ashraf ever since May 1986." It was accordingly held by the appellate Court that the legal heirs of Muhammad Nawaz were not a necessary party to the ejectment proceedings nor was the ejectment application bad for their non‑joinder and consequently their Appeal No.26 of 1987 was liable to be dismissed.

Objection of the tenants regarding the misjoinder of causes of action and of the parties was also repelled with the observation that since the landlord sought the ejectment on the ground of re‑construction of the building, he could bring a joint application against both sets of tenants as was held in 1979 S C M R 338. Finding of the trial Court on issue No. 4 was thus affirmed.

As regards the objection of the tenants that the property in dispute was an industrial concern which was rented out to them as such and, therefore, the Rent Controller had no jurisdiction in the matter, learned appellate Court after detailed examination of the evidence on record came to the conclusion that the property in dispute "was a building or rented land within the meaning of Urban Rent Restriction Ordinance, 1959, and not an industrial concern and as such the Rent Controller had the jurisdiction to try the ejectment application". Precise finding recorded by the learned District Judge was that at the time of letting out the premises in dispute to the present tenants, it comprised of two or three rooms and some vacant site attached thereto with an industrial connection obtained by the previous tenant for running his saw‑mill and that no machinery was installed therein. Support for this finding/conclusion was drawn from the evidence of both the parties and more particularly from the testimony of Abdul Ghani A.W. 3 who it was observed had been the tenant of the premises in dispute for more than two decades before it was rented out to Muhammad Ashraf. This witness was the original lessee/tenant of the disputed property. He stated that when he took the premises on rent, it was in the form of a vacant Ihata. He installed a saw machine thereon which he removed while vacating the premises. According to this witness, the disputed premises comprised of 2/3 rooms and some vacant site with the industrial connection. Learned District Judge found that vacant premises with an industrial electricity connection obtained by the previous lessee was rented out to the present tenants.

Issue No. 2, it appears from the impugned order of the appellate Court, was not seriously pressed by the petitioners/tenants.

On issue No. 3, learned appellate Court held that Muhammad Ashraf remained associated with the business carried on by his son and nephew on the premises in dispute and that he had in fact been paying the rent to the landlord though receipts were obtained in the names of two different concerns namely petitioners Nos. I and 2 herein. It was accordingly held that the ejectment petition was maintainable qua Muhammad Ashraf also.

On issues Nos. 6 and 7, learned appellate Court accepted the testimony of the landlord that he had three married and two unmarried sons all residing with him in a house comprising 5/6 rooms. This accommodation, it was observed, was not sufficient for the needs of the landlord's family. AS regards the fact that the landlord owned 2 or 3 other houses in the town, learned District Judge observed that "none seems to be in his possession" and, therefore, non disclosure of the fact of owning other houses was not mala fide. It was observed by the learned District Judge that "A person despite owning other houses can still insist for the occupation of a particular one of his choice, especially when all of them are in possession of the tenants". Learned District Judge was also satisfied on the basis of the duly sanctioned plan for re‑construction of the house placed on the record that the landlord bona fide needed the premises in dispute for re construction of a house so as to provide residential accommodation to his sons who were of marriageable age.

In view of the aforementioned findings, appeal filed by the present petitioners, and Muhammad Ashraf respondent No. 4 as also the connected appeal filed by the legal heirs of Muhammad Nawaz were dismissed by the learned District Judge vide judgment dated 5‑12‑1987.

7. Judgment of the learned District Judge as also of the Rent Controller have been brought under challenge in the two Constitutional petitions being disposed of through this order.

8. I have heard the learned counsel for the parties. Learned counsel for the petitioners/tenants assailed the finding of the Courts below regarding the nature of the demised premises. His submission was that the Courts below have erred in holding that the premises in dispute was a building or a rented land and not an industrial concern. Learned counsel referred to the evidence of Muhammad Hanif A.W. I and Muhammad Aslam landlord A.W. 2 and submitted that it was admitted by these witnesses that when the property in dispute was let out, it already had an industrial electricity connection and further that it had been rented out right from the beginning for commercial/industrial purposes. Reference was particularly made to the following statement of the landlord:‑‑ it was also pointed out that the landlord appearing second time as A.W. 4 deposed that:‑‑

Relying on this evidence, learned counsel for the petitioners sought to contend that the premises in dispute was a factory/industrial concern and as such it stood excluded from the operation of the Rent Restriction Ordinance and the Rent Controller bad no jurisdiction in the matter. Reliance was placed on "Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd." (PLD 1976 SC 781).

Learned counsel appearing for the respondent/landlord, on the other hand, supported the finding of the Courts below and pointed out that the evidence on the record showed that the premises in dispute when rented out to the petitioners comprised of the vacant land with some structure but with no machinery whatsoever installed thereon. Machinery was in fact installed by the tenants themselves. In the circumstances, it was argued by the learned counsel that the tenancy was in respect of the building or the rented land and not the machinery and that being so, the matter squarely lay within the ambit of the provisions of the Rent Restriction Ordinance. In support of his submission, learned counsel relied upon (1) Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. Karachi (PLD 1970 Lab. 455), (2) Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. (P L D 1976 SC 781), (3) Mistri Ahmad Hassan v. Abdur Rauf Khan etc. (1986 S C M R 494), (4) Ghulam Farid and another v. Mian Farooq Nazir and another (P L D 1979 Lab. 673), (5) Muhammad Yasin v. Abdul Latif Issani (1986 C L C 632) and (6) Farzand Ali v. Muhammad Bashir (1984 M L D 1107).

9. In order to evaluate the respective contentions of the learned counsel for the parties, I have minutely examined the evidence on the record and I rind that it supports the finding of the Courts below that the demised premises at the time when it was initially let out to Muhammad Ashraf and Muhammad Nawaz, the predecessors‑in‑interest of the present petitioners, comprised only of 2/3 rooms with some vacant land and an industrial connection. Evidence on the record does not show that at that time, there was any machinery installed on the premises in dispute. In fact, Muhammad Ashraf respondent/tenant appearing as R.W. 1 admitted that when he took on rent half portion of the premises in dispute, it was lying vacant. He further deposed that the portion in possession of Muhammad Nawaz was previously with Abdul Ghani. Now it is in evidence that the said Abdul Ghani was the original tenant of the premises in dispute and when he took A the premises on rent, it was a vacant lhata. He had installed a saw machine which he removed when he vacated the premises and soon thereafter, the premises were rented out to Muhammad Ashraf. Thus on a proper analysis of the totality of evidence, the finding of the learned District Judge that what was rented out to the predecessors‑in‑interest of the present petitioners was only the vacant land with 2/3 rooms and an industrial connection appears to be unexceptionable. Even the evidence pointed out by the learned counsel for the petitioners is of no help to him because it at the most shows that the premises were let out for business purposes viz. for setting up a factory. The premises were thus covered by the definition of 'rented land' or 'building' and the Rent Controller had the jurisdiction to entertain the eviction proceedings in respect thereof. It may pertinently be observed that for a property to be considered as a factory or industrial concern so as to exclude it from the operation of Rent Restriction Law, it must be equipped with machinery requisite for a particular manufacturing process. It was so held in the aforementioned case of Rahman Cotton Factory (P L D 1976 SC 781) cited by the petitioners themselves. In that case, a ginning factory equipped with machinery for processing and ginning cotton was ]eased out as a factory. The lessee sought to invoke in his aid the Rent Restriction Law and argued that he was not liable to pay any amount to the landlord in excess of the agreed rent. While repelling this argument, their Lordships observed that the Rent Restriction Act applied to "residential building", 1. non‑residential building" and "rented land" as defined in section 2 of the Act and that the factory in question did not fall under any of the said three categories of the property to which the Act applied. It was held that "the Act excluded from its operation what were properly known as a factory equipped with machinery requisite for a particular manufacturing process. In essence in all such cases, the lease is for the use of the machinery which is permanently fixed in certain defined premises and not of the premises simpliciter". Judged in the light of these weighty observations, the premises tented out to the petitioners by no stretch of reasoning could be treated as a factory or industrial concern. Reference may also usefully be made to the case of Ghulam Farid reported in P L D 1979 Lahore 673. In that case, land was rented out and the tenant thereafter set up a re‑rolling mill thereon. Rent Controller took the view that since it was the land which was rented out for the purpose of a factory and not the factory, it was a case of leasing out property for the purpose of trade or business as such the land fell within the definition of either building or rented land. This view was upheld with the observation that "the setting up of a factory must be deemed to be covered by the expression 'business or trade' since the object of manufacturing is the conversion of a commodity or commodities into another finished commodity for the purpose of sale. Goods are manufactured in a factory for sale". It was further observed that before a factory is considered to be ousted from the ambit of the Rent Restriction Ordinance, it must be let out as a factory. This view was followed in 1986 C L C 632 and it was added that this meant that the premises alongwith the manufacturing equipment should be the subject‑matter of the lease. In 1984 M L D 1107 (Karachi), tenant took the land on rent and installed his saw machine thereon for business purposes. It was held on these facts that the demised premises was 'rented land' within the meaning of section 2(f) of the Urban Rent Restriction Ordinance and the ejectment application in respect thereof was maintainable. All these authorities quite clearly support the view taken by the learned Courts below that the premises in dispute was rented land or building and not a factory/industrial concern and the Rent Controller, therefore, had the jurisdiction in the matter. Contention of the learned counsel for the petitioners to the contrary has no force.

10. It was next contended by the learned counsel for the petitioners that it has come in the evidence that the landlord owned 2/3 houses in the town but this fact was not disclosed in the ejectment petition. Non‑disclosure of this material fact, according to the learned counsel, adversely reflected on the bona rides of the personal need set up by the landlord. In support of his submission, learned counsel relied upon (i) PLD 1984 Karachi 141, (ii) 1985 CLC 8921 (iii) 1985 CLC 937, (iv) 1983 CLC 1149 and (v) 19M) CLC 2376.

Learned' counsel appearing for the landlord, on the other hand, submitted that the omission q complained of was not international and the landlord and his witness Muhammad Hanif readily accepted in their evidence that he owned 213 houses in the city. Learned counsel further contended that the omission in question was not by itself fatal to the case of the landlord as he, was not required to specifically plead all the ingredients of section 13 of the Rent Restriction Ordinance. To support his contention, I learned counsel placed reliance on (1) PLD 1976 Kar. 233, (2) PLD 1976 Kar. 620, (3) PLD 1981 Lah. 456 and (4) 1981 SCMR 979.

I have perused the cases cited by the learned counsel for the parties and have examined the material on the record. The judgments referred to by the petitioners' counsel were passed on first or second appeals and they proceeded on their own peculiar facts. It would, therefore, be not appropriate to apply their enunciation to the present case. Needless to observe that the proceedings before the Rent Controller which arc of quasi‑judicial nature are not to be judged from the point of view of mere technicalities and the landlord is not to be non‑suited merely because he has failed to specifically plead certain facts so long as he has brought the evidence on the record to prove his bona fide personal requirement. Refer PLD 1976 Kar. 233. In another case from Karachi (PLD 1976 Kar. 620) also cited by the learned counsel for the landlord, it was held that it is not necessary for the landlord, when he takes the plea of personal bona fide requirement that he should specifically urge in the rent application all the ingredients which constitute his personal bona Fide requirement which ingredients are a matter of proof. It was observed in the cited case "Any absence, in the pleadings, of such averment does not reflect adversely on the bona fides, if otherwise proved, of the landlord's personal requirement. In fact, the requirement contained in section 13(3)(a)(i)(b) was not that the landlord should not 'have'. but that he should not be 'occupying' another residential building in the same urban area. This view was taken in the afore‑referred case reported in P L D 1976 Karachi 620. Perusal of the eviction petition shows that the landlord bad made a specific averment in para.7 that he or his sons were not in occupation of any other premises which suited their need. The landlord had thus satisfied the requirement of the afore‑noted provision. In any case, the absence of averment in the ejectment petition that the landlord owned other houses could not be said to be mala fide because he and his witness Muhammad Hanif readily stated in the evidence that he owned 2/3 houses in the city. It may also pertinently be observed that mere ownership of other houses did not detract from the genuineness of the landlord's requirement. Refer P L D 1981 Lahore 456 and 1981 S C M R 979. Even otherwise, the question of bona fide requirement of landlord is to be examined in the context of all the relevant facts and circumstances on the record. In the instant case, landlord produced evidence to show that he had three married and two unmarried sons all residing with him in a house comprising of 516 rooms. He also brought on record sanctioned site plan for re‑construction. Taking all this evidence into consideration, the two Courts below came to the conclusion that the landlord bona ride needed the premises in dispute. This concurrent finding recorded by the two learned Courts of competent jurisdiction after due consideration of material on the record is not open to question in constitutional jurisdiction. If any authority is needed for this proposition, reference may be made to "Abdul Ghani v. Zahida Begum".(P L D82 Lah. 401).

12. I have also considered the findings of ‑the Courts below on other issues and in my view they are‑ unexceptionable. Objection of the tenants regarding the conversion of non‑residential building into a residential house was rightly repelled by the Rent Controller as not tenable because there was no provision in the Rent Restriction Ordinance barring such a conversion. Section 11 of the Ordinance in fact prohibited the conversion. of a residential building into a non‑residential building except with the permission in writing of the Rent Controller. In any case, petitioners are shown to have not seriously pressed this objection before the appellate Court. They are, therefore, precluded from agitating this issue in these proceedings of extraordinary nature.

'Finding of Courts below on issue 3 holding that Muhammad Ashraf respondent continued to be a tenant of the demised premises is based on proper appreciation of evidence and is supported by sound reasons. It, therefore, does not call for any interference in writ jurisdiction. As regards issue No. 4, regarding the mis joinder of causes of action and of the parties, learned appellate Court rightly held that since the ejectment was sought on the ground of reconstruction ,of the building, a joint application against both sets of tenants was maintainable. This view is supported by the judgment of the Supreme Court reported in 1979 S C M R 338 which was duly noticed by the learned appellate Court.

Learned appellate Court also proceeded on correct premises in holding that legal heirs of Muhammad Nawaz and Kaashaf Nawaz were not the necessary parties to the ejectment proceedings. Their appeal was, therefore, rightly dismissed. On the facts found by the learned appellate Court, they had‑no locus stand either to file the appeal or to maintain the writ petition which merits dismissal on this short ground.

Upshot of the above discussion is that the impugned orders of the Courts below are unexceptionable and in any case they are not open to interference in writ jurisdiction. Both the writ petitions are accordingly dismissed but with no order as to costs.

A‑A./M‑2097/L Petition dismissed.