MUHAMMAD SALEEM Versus ALTAF HUSSAIN

This appeal, brings under challenge, order of eviction, passed by the learned Rent Controller, on striking off defence of appellant, and also the order of learned Additional District Judge, affirming the same in appeal. Altaf Hussain respondent, filed a petition under section 13 of Punjab Urban Rent Restriction Ordinance, seeking ejectment of appellant, on the ground of default in payment of rent, w.e.f. February, 1995. In his defence, the appellant, raised preliminary objection as to the jurisdiction of the Rent Controller, on the ground, that the premises in issue, was a "Factory", situated in Industrial Area and was rented out for the same purpose, which was not amenable to the jurisdiction of Rent Controller, under the provisions of Ordinance.

2. The learned Rent Controller, without deciding the objection, as to the jurisdiction, proceeded, to pass an order on 4‑12‑1995 under section 13(6) of Ordinance VI of 1959, directing the appellant to deposit arrears of rent, from February, 1995, at the rate of Rs.2,000 and also to deposit future monthly rent, before 15th of each calendar month.

3. Issues, including the one relating to the jurisdiction of the Tribunal were framed, on 24‑1‑1996, whereafter, the parties were required to produce evidence. The evidence of both the parties, was recorded. At this stage, the respondent filed an application, dated 30‑4‑1997, for striking off defence of the appellant, on the grounds, that he had defaulted in payment of rent, as the rent, for the months of August, September and December, 1996 was deposited on 18‑9‑1996, 15‑10‑1996 and 16‑1‑1997 respectively.

4. The learned Rent Controller, allowed the application on 4‑11‑1997, struck off defence of the appellant and directed his eviction from the premises.

5. Appellant took up the matter in appeal, which was dismissed by the learned Additional District Judge, on 27‑11‑1997, and in consequence, this second appeal was filed, to assail the two orders.

6. Learned counsel for the appellant, argued, that the premises in issue, being a factory, objection as to the jurisdiction of the learned Rent Controller having been raised in the reply, the learned Rent Controller, could not direct deposit of rent, under section 13(6) of the Ordinance, without determining the objection as to his jurisdiction and that the order of deposit of rent being without jurisdiction, could not entail penal consequences.

7. The impugned orders were defended by learned counsel for respondent, who maintained, that in the presence of the evidence already led by the two sides, the premises in issue cannot be treated to be a factory or industrial concern and, therefore, the objection raised in the pleadings, being without substance, could be ignored and resultantly, the appellants having failed to comply with the directions of the Rent Controller had rendered themselves liable to eviction.

8. On deeper consideration, of the pleadings, and also the material existing on file, it becomes evident, that the rent deed between the parties was not disputed and that the appellant, had specifically raised an objection to the jurisdiction of the learned Rent Controller, on the ground, that the premises in issue was a factory, falling in the definition of industrial concern, which was not covered by the definition of rented land or non‑residential or scheduled building, as given in the Ordinance. Though in the ejectment petition, the respondent claimed, that a plot of land measuring 2 Kanals, 2 Marlas and 52 Sq. feet was rented out on 29‑5‑1993, for commercial purposes, on the basis of rent note executed in his favour, yet the original rent note, dated 29‑5‑1993 Exh.A‑1, available on the file of the learned Rent Controller, is indicative of the fact, that land measuring 2 Kanals, 2 Marlas, 52 Sq. feet, alongwith factory building, comprising of Shed, Godown and a Workshop was given on rental basis as factory purposes.

9. Interestingly, the learned Rent Controller, by overlooking this objection to his jurisdiction, without framing any issue or dissolving this controversy, proceeded to pass an order for deposit of rent under section 13(6) of Ordinance VI of 1959 while the issues, including issue as to his jurisdiction, were framed on 24‑1‑1996. The subsequent framing of issue as to jurisdiction, does indicate, that the learned Rent Controller was conscious of the fact, that his jurisdiction had been challenged but, in his own wisdom, he did not feel the necessity of deciding the objection of jurisdiction, before assuming jurisdiction and proceeded to pass an order, which could have been passed, only in the course of proceedings under section 13 of the Ordinance and on assumption of jurisdiction.

10. The provisions of Punjab Urban Rent Restriction Ordinance, .1959, permit for exercise of jurisdiction to the Rent Controller, to issue eviction order, regarding, building, non‑residential building, scheduled building and rented land. The definition of building, in section 2‑A of Ordinance, would show, that it lays emphasis, on a building or a part thereof, let off for any purpose. The non‑residential building has been defined as a building, which is being solely used for the purposes of business or trade. Scheduled building has been defined as a residential building, which is being used by a person engaged in one or more of the professions specified in the schedule and partly used for a business and partly for residence, while rented land is defined as land, which is let separately for the purposes of being used principally for business or trade. The word 'building', used in the Ordinance, does not cover factories or industrial concern.

11. In "Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd., Karachi" (PLD 1970 Lah. 455), it has been held, that the Rent Ordinance, applies to four types of properties, namely, residential, non‑residential building, scheduled building and rented land and does not extend to any other properties whether buildings or industrial concerns, which fall outside the definitive clause of the Ordinance.

12. In "Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd." PLD 1976 SC 781, it was observed, that the rent laws, did not apply to the factories equipped with machinery requisite for manufacturing process. In the said case, ginning factory, leased out to the tenant, equipped with machinery for processing and ginning cotton in running condition, was held to be neither residential nor non‑residential building or rented land and as such outside the purview of Act IX of 1957.

13. In "Muhammad Sharif v. Saeed Akhtar Hassan and 8 others" PLD 1985 Lah. 365, it was observed, that in order to oust the jurisdiction of Rent Controller, it should be shown, that the property was a factory and was leased out as industrial unit/factory. It was further observed, that objection as to the jurisdiction on account of the fact that the premises is factory or industrial concern, shall be raised before the Tribunal at the earliest opportunity.

14. In "Haji Ali Muhammad and 3 others v. Mian Ghulam Muhammad and 2 others" (1988 CLC 318), it was observed, that if empty premises fit for running a factory was leased out, provisions of Ordinance in respect thereof, will not be excluded for purposes of ejectment and Rent Controller will have jurisdiction to decide eviction application in respect of such premises which was not leased fully equipped with machinery as a factory.

15. In "Ahmad Aziz Zia v. Muhammad Siddique and another" PLD 1982 Lah. 37, it was held, that where the tenancy was created not with respect to the building but also with regard to machinery as well then such relationship would not stand regulated by the provision of Punjab Urban Rent Restriction Ordinance as in such a case, dispossession will not be from residential building alone but also from the machinery. It was held in this case, that such relationship does not fall to be dealt with by Rent Controller in inquiry contemplated by Punjab Urban Rent Restriction Ordinance.

16. From the provisions of the Ordinance, it becomes obvious that it is applicable to the cases, where eviction is claimed from a residential and non?residential building or from scheduled building or rented land and that the premises, affixed with machinery, used as factory and let out as factory, does not fall in any of the four categories. To exclude jurisdiction of the Rent Controller, no doubt, one has to prove, that an industrial concern in a building with running machinery was let out for industrial purposes. Simple renting out of a building, without machinery, though subsequently used by the tenant for industrial purposes, will not bring the building, outside the purview of Ordinance. This, of course, will be a matter of evidence, and the issue cannot be resolved, without evidence nor any final decision can be rendered, as to the character of the property, without affording the parties with an opportunity of leading evidence. Be that as it may, the fact remains, that if it is established, that a factory, an industrial concern or a building, with running machinery, was let out for industrial purposes, then the provisions of Rent Ordinance, will not be attracted nor the Rent Controller can assume jurisdiction.

17. In this case, a specific objection, as to the jurisdiction of the learned Rent Controller was taken on the ground, that the property was rented out, as factory, and for factory purposes. The learned Rent Controller, did not resolve this controversy nor determined the objection, in regard to his jurisdiction and on the contrary, hurriedly proceeded to direct, deposit of rent, in terms of section 13(6) of the Ordinance. The question, which, thus, arises, is, as to whether the course adopted by the learned Rent Controller was justified, in the given circumstances. It is a settled rule, that if an objection to the jurisdiction of a Tribunal or Court is raised, the same shall be decided as a preliminary issue before passing any order, which can be passed on assumption of jurisdiction.

18. In "Akhtar Ali Pervaiz v. Altafur Rehman" (PLD 1963 (W.P.) Lah. 390), a Full Bench of this Court, held, that an issue concerning the very existence of power to decide is not an issue between the parties, though the existence of that power may be asserted by one party and denied by the other. In reality, it is an issue between the Court itself and the party over whom the Court is asked to exercise power. The issue as to the rights or liabilities of parties, on the other hand, affects only the parties arisen between them by which the Court is not affected. It was held, that objection to the proceedings must be distinguished from the objections raised in the proceedings. The provisions, contained in subsection (6) of section 13 of the Ordinance, will be attracted only when the proceedings in fact, fall under section 13 and not when they only purport or alleged to fall in this section. It was ruled that on whatever ground, if a party to the proceedings under section 13, claims that the proceedings cannot validly be sustained or proceeded with under section 13, it will be incumbent upon the Rent Controller to decide the issue before he can exercise any power mentioned in that section. The words "on the first date of hearing ....and before issues are framed", are to be read alongwith the words", "in proceedings under this section". In that case, it was ruled, that where an objection to the jurisdiction of the Tribunal is raised it should be treated as a preliminary objection and must be resolved before taking any action.

19. In "Ghulam Hussain v. Abdur Rehman and 2 others PLD 1982 Lah. 519, it was held, that the order for the deposit of rent in terms of section 13(6) of the Ordinance cannot be passed without deciding question of jurisdiction, if the jurisdiction is objected, on the ground, that the property involved was a factory and was not covered by the definition of building or rented land. The order for deposit of rent, passed in that case, without deciding the issue of jurisdiction, was held to be without jurisdiction. In that case, the tenant, raised objection to the jurisdiction of Rent Controller, that the premises in issue was a factory. Notwithstanding the same, an order for deposit of rent was passed. Later, a default was claimed in compliance of that order which found favour with the Rent Controller and in consequence, the defence of the tenant was struck off and his eviction was ordered. The order was set aside, as the basic order for the deposit of the rent was found to be without jurisdiction, having been passed, without deciding issue in regard to the jurisdiction.

20. Coming to the facts of the present case, as noted (supra), the appellant did raise a specific preliminary objection, wherein, the jurisdiction of the learned Rent Controller to entertain and decide the ejectment petition was challenged, on the ground, that the premises in issue was rented out as factory and was outside the purview of Rent Ordinance. The learned Rent Controller, neither framed any issue nor decided the objection, before passing an order under section 13(6) of the Ordinance. The order for deposit of rent, could be passed, in the proceedings under section 13 of the Ordinance, provided, the Rent Controller, in the first determined existence of jurisdiction, by returning findings, as to the objection raised to his jurisdiction against the appellant. Amazingly, the learned Rent Controller, framed issue of jurisdiction, after assuming jurisdiction, which was untenable. The order being without lawful authority and patently illegal, could not entail penal consequences, by way of striking off defence of the appellant, in case of any violation thereof. This aspect of the matter, was not attended to, by the learned Rent Controller as also by the learned Additional District Judge, in true legal perspective.

21. There is another reason, for which the order of eviction cannot sustain. Entire evidence had already been recorded and the case was at the stage of final argument. This being so, the defence could not otherwise be possibly struck off and that the propriety demanded, that the learned Rent Controller should have d6cided the case, on the basis of evidence, instead of taking up the application in isolation, particularly, when he had already framed an issue as to the lack of jurisdiction.

22. The argument, that the evidence having already come on the record, the objection as to jurisdiction will be of no substance, if the same is decided now by this Court, by assessing the evidence and determining the nature of the property in issue, cannot sustain, for the reason, that the learned Rent Controller, as well as, learned Additional District Judge, have not returned any findings, on the question of jurisdiction, after appraising the evidence led by the parties and, therefore, for the first time, in second appeal, it will not be permissible, to record findings on this issue as either of the party will be denied of his right of appeal.

23. For the reasons above, this appeal is allowed, the impugned orders are set aside and the case is remanded to learned Rent Controller, with the direction, that he should decide the question of jurisdiction as a preliminary issue and determine the character of the property in issue. It is, however, clarified, that any observation made in this order, shall not influence the learned Rent Controller in deciding the question as to whether the disputed property is a building or rented land, within the meaning of the provisions of Ordinance. The learned Rent Controller, shall proceed with the eviction proceedings, on merits, only if the objection as to jurisdiction is decided in negative.

24. The proceedings shall be concluded by the learned Rent Controller, within two months, with intimation to the Deputy Registrar (Judl.) of this Court.

H.B.T./M‑717/L ????????????????????????????????????????????????????????????????????? Appeal allowed