MUHAMMAD YASIN Versus ABDUL LATEEF ISSANI

1. This First Rent Appeal is directed against the order 26‑1 0‑1982 passed by the VIIIth Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to vacate the premises in dispute within two months.

2. The facts which give rise to this appeal are that the respondent is the landlord and owner of the building situated on Plot No. LY‑10/98 with constructed compound thereon and the appellant is tenant in respect of portion of premises given for the Ice‑candy Ice Factory as per lease agreement dated 18‑11‑1970 at the monthly rental of Rs. 200 for a period of eleven months. The case as set up in the eviction application is that after the expiry of lease period, further oral agreement was made between the parties. They had agreed to enhance rent from Rs. 200 per month to Rs. 600 per month, with effect from October, 1971 and it was also agreed between the parties that any time the respondent demanded the vacant‑ possession of the premises in dispute, the appellant shall hand over to him without assigning any reason or notice whereof. The respondent filed eviction Application No. 2383 of 1979 on the ground that the appellant had wilfully failed to pay/tender rent, with effect from 1‑5‑1977 to April, 1979 that is twenty‑four months amounting to Rs. 14,400. The appellant resisted the eviction application.

3. The respondent filed his own affidavit‑in‑evidence in support of the eviction application. In rebuttal the appellant filed his own affidavit- in‑evidence. They were cross‑examined by the respective counsel for the parties.

4. The learned Rent Controller, on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues in the affirmative and allowed the eviction application, vide order, dated 26‑10‑1982.

5. The appellant being aggrieved against the order, dated 26‑10‑1982 of the VIIIth Senior Civil Judge and Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

6. Mr. Khalilur Rehman, the learned counsel for the appellant has raised the following contentions:‑ ‑

(1) The eviction application having been filed in respect of the factory was not maintainable under the provisions of the Sind Rented Premises Ordinance, 1979.

(2) That in view of the peculiar position of the case and non‑examination of the respondents rent collector, the learned Rent Controller has erred in law in holding that burden of proof for non‑payment of rent for the disputed period lay on the appellant.

7. On the other hand Mr. Zafar Alam, the learned counsel for the respondent has submitted that the respondent had rented out the premises to the appellant and he did not rent out the lee Factory to the appellant. His contention is that this eviction application was competent. He has also submitted that the order of the learned Rent Controller is in accordance with the evidence on the record.

8. Reverting to the first contention of the learned counsel for the appellant that the eviction application was incompetent. The respondent had sought eviction of the appellant from the premises in dispute under section 13 of the repealed Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the, repealed Ordinance). This means that if the premises involved in the eviction application is not building or rented land as defined in clauses (a) and (f) of section 2 of the repealed Ordinance, the Controller would have no jurisdiction to direct the eviction of the tenant from that premises. It was averred by the appellant that the premises in dispute was an Ice Factory and it has been held in Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. P L D 1976 S C 781 that a factory is neither a building nor rented land within the meanings of clauses (a) and (f) of section 2 of the repealed Ordinance. Thus the appellant had questioned the jurisdiction of the learned Rent Controller to hear the eviction application made against him.

9. In the, present case the respondent had rented the premises in dispute to te appellant, vide agreement of lease, dated 18‑11‑1970 (Exh.. 6/c). The preamble and schedule of agreement reads as under:‑--

10. "Whereas the lessor is the sole and absolute owner of Factory Room equipped one electric motor etc. details whereof are shown in the Schedule at the foot of this Agreement, and whereas the lessor agrees to give and lessee agrees to take on lease the aforesaid Factory Room, with machineries, fitting and fixtures etc. on the terms and conditions appearing below.

SCHEDULE OF THE FACTORY

(1) Electric Motor 5 H.P. alongwith fitting and fixtures.

(2) Factory Room measures ‑‑‑‑X‑‑‑‑‑."

11. The respondent averred in para. 1 of the eviction application that "the respondent is the landlord and owner of the building situated on Plot No. LY10/98, with constructed compound thereon and the appellant is tenant in respect of tenement portion of premises for the Ice Factory and Ice Candy situated in the Issani Mill Compound at a monthly rent of Rs. 600 per month, furniture and fittings". The appellant filed written statement wherein it was averred that "it is further submitted that the electric motor machinery and other furniture and fittings in the shop in question belong to the opponent". The respondent filed affidavit‑in‑evidence wherein it was averred that "according to the aforesaid lease agreement the opponent shall have to utilise Ice Factory machine equipped in the premises alongwith the electric motor 5.H.P. with fixtures and fittings attached thereon". The respondent replied to the suggestion that it is correct that in this rent agreement room is mentioned for the premises in dispute. The respondent replied that" I never carried on the business of Ice Candy in the premises in dispute". It is pertinent to produce relevant portion of his cross‑examination which reads as under:‑‑

12. "The bill of the machine is not available with me to show that I had supplied machine 3 H.P. The opponent has changed the entire machinery during the pendency of the case. I had only supplied electric motor of 5 H.P. to the opponent. All other material belongs to the opponent including the Ice Candy Machine."

13. As against the above evidence the appellant averred in his affidavit‑in‑evidence that he had taken on lease the case premises in question under a lease of agreement, dated 18‑11‑1970. It is advantageous to reproduce para. of affidavit‑in‑evidence which reads as under:‑‑

14. "That it is further denied by me that there are any fixture or fittings and electric motor in the shop premises as alleged by the applicant. The motor used by me was purchased out of my own funds and in proof thereof I file herewith photostat copy of the receipt of purchase of the said motor from Messrs Karim Brothers."

15. The appellant denied the suggestion that machine 3 H.P. fixed in the tenement belonged to the respondent. He also denied the suggestion that he forged the receipt. The appellant to a question in cross examination replied that "I am doing the business of Ice Candy since 1970 and that there was no machine of three horse power". He further replied that "at present there are two machines, one of 71/2 H.P. and one three H.P. I have purchased both the said machines. One machine was purchased by me in the year, 1970 while the other was purchased in the year, 1972. The machine purchased by me in 1970 was on instalments.

16. The learned counsel for the parties have cited the following decisions;

17. 1983 C L C 390; P L D 1982 Lah. 37; P L D 1982 Lah. 519; PLD 1979 Lah. 673; P L D 1970 Lah. 455; P L D 1973 S C 218; P L D 1976 Quetta 92; 1978 Law Notes S C 754 and P L D 1979 Lah. 673.

18. In Messrs Rahman Cotton Factory v. Messrs Nichemen Co. Ltd., Karachi P L D 1970 Lah. 455 a Division Bench of Lahore High Court while construing clauses (a) and (f) of section 2 of the repealed Ordinance held as follows:‑---

19. "The cardinal rule of construction of the statute is that the words and phrases used in it have to be given their ordinary meaning and are to be construed according to the rules of grammar. Since the words "building" and "rented land" as defined are not susceptible to more than one meaning we are unable to agree with the learned counsel that they extend to any other premises except residential, non‑residential and scheduled buildings and the rented land in an urban area. For these reasons a factory or an industrial concern given on rent for the purpose of carrying on a ginning industry cannot be said to be either a building or a rented land as its premises will not fall in one of the categories of certain premises as defined under section 2 of the Ordinance."

20. The appeal preferred by the appellant was dismissed by the Hon'ble Supreme Court P L D 1976 S C 781.

21. In Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others P L D 1973 S C 218 the Hon'ble Supreme Court observed as follows;

22. "It will thus be seen that the terms 'building' is very wide and includes any land let therewith. In the present case,' 51 shops were leased and alongwith it, a vacant piece of land was also let out to Mana Singh. In such circumstances, it is quite clear that the lease of the vacant piece of land was of a building which falls within the definition of "building" in the said Ordinance.

23. Apart from that even if the lease is taken to be of two properties, namely, a vacant piece of land and 51 shops; vacant piece of land falls within the definition of rented land. Section 2(f) defines the 'rented land' as under:‑-- "rented land" means any land let separately for the purpose of being used principally for business or trade."

24. It is not disputed that the vacant piece of land was let out for constructing a cinema house and for carrying on cinema business. Thus the land in dispute was let out for the purpose of being used principally for business or trade and, therefore, falls within the above definition.

25. After carefully considering the arguments of the learned counsel for the parties, we are satisfied that the property in dispute falls within the definition of "building" or "rented land" A and the Rent Controller has jurisdiction in the matter to determine the dispute between the parties."

26. In Muhammad Anwar v. Mohiyuddin P L D 1976 Quetta 92 Mr. Zakaullah Lodhi, J. (as he then was) observed as follows:---

27. "On the facts of the case also the appeal is not tenable because what had been issued out to the appellants was the plot of land whereupon the shops and tin shed in which a flour mill itself had not been leased out. In the lease deed it was categorically mentioned that only the plot of land was being leased out. Thus plot leased out comes within the definition of rented land. Rented land is let out for the purpose of business of trade and in case the landlord wants to eject his tenant from the rented land it would be open to him to approach the Rent Controller for this purpose."

28. In Mistri Ahmed Hussain v. Abdur Rauf Khan etc. 1978 Law Notes N . U . C . (S.C.) 754, the Hon'ble Supreme Court observed as follows: ‑‑--

29. "Before us, the grounds taken before the High Court are reiterated. On the point of ouster of jurisdiction of the Rent Controller, reliance is placed on Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. P L D 1976 S C 781. The authority cited by the petitioner is clearly distinguishable because, in that case, a ginning factory equipped with machinery for processing and ginning cotton was leased out as a factory, whereas in the present case, it is established as a fact that the petitioner was a tenant of the rented land and some superstructure thereon without any machinery. He is, therefore, tenant at the most of either rented land or non‑residential building which comes within the ambit of the Ordinance and the Rent Controller would have jurisdiction in the matter."

30. In Ghulam Farid and another v. Mian Farooq Nazir and another P L D 1979 Lah. 673, the facts of the case were that the land was first rented out by the respondent No.l to one Muhammad Ashiq who set up a re-rolling mill op it. The petitioners purchased the re-rolling mill from Muhammad Ashiq and attorned in favour of respondent No.l. In these circumstances it was urged before the Rent Controller that the property having been given for the purpose of setting up a re-rolling mill (a factory). It is not covered by the definition of 'rented land' within the meaning of Ordinance, 1959 and as such the Rent Controller had no jurisdiction to hear the application for ejectment. The Rent Controller held 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 trade or business or for earning a livelihood. The petitioner filed writ petition against the order of the Rent Controller. Mr. Aftab Hussain, J. held as follows:‑‑--

31. "In these circumstances I have no manner of doubt left 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. In these circumstances the finding of the learned Rent Controller was amply justified.

32. Moreover from the authorities shown to me by the learned counsel for the petitioners as well as from one other case it is clear that before a factory is considered to be ousted from the ambit of the Ordinance of 1959, it must be let out as a factory. Messrs Rahman Cotton Factory v . Messrs Nichimen Co. Ltd. P L D 1970 Lah. 455 is to the same effect."

33. In Ahmed Aziz Zia v. Muhammad Siddique and another P L D 1982 Lah. 37 Mr. Khalilur Rehman, J. held as follows:.‑-----

34. "It is apparent from the portion underlined above that where the relationship of tenancy was created not only with respect to the building but also with regard to machinery as well then such relationship does not stand regulated by the provisions of Urban Rent Restriction Ordinance, as in such a case dispossession is not being sought from the non‑residential building alone, but also from the machinery. Such relationship does not fall to be dealt with by Rent Controller in summary enquiry contemplated by the Urban Rent Restriction Ordinance."

35. In Ghulam Hussain v. Abdur Rehman and 2 others P L D 1982 Lah. 519 Mr. Muhammad Ilyas, J. held as under:‑---

36. "According to the provisions of section 13, the Rent Controller can pass an order of eviction with regard to a building or rented land. This means that if the property involved in the ejectment proceedings is not building or rented land as defined in clauses (a) and (f) of section 2 of the said Ordinance, the Rent Controller would have no jurisdiction to direct ejectment of the tenant from that property."

37. In Bashir Ahmad v. Mst. Zubeda Khatoon 1983 C L C 390 the facts of the case were that the respondent filed rent case for ejectment against the appellant on the ground of default. The appellant filed written statement wherein he took the plea that the rent application was not maintainable. The learned Rent Controller framed a preliminary issue on the question of relationship by his order, dated 18‑11‑1979 and held that the relationship existed. After that he proceeded with the matter and recorded the finding on the question of default against the appellant. The learned counsel for the appellant contended that the application was not maintainable in law and as such was liable to be dismissed. Mr. Ajmal Mian, J. after reviewing cases of superior Courts held:

38. "(b) It may be noticed that under the late Ordinance building was defined as to mean any building or part of building let out for any purpose excluding a room in a Sarai, hotel, hostel or boarding house,

39. Whereas a non‑residential building was defined as to mean a building being used solely for purposes of business or trade. Furthermore, the definition of the term "residential building" included all buildings excluding non‑residential building. Moreover, the term rented land was defined as to mean land let out separately for the purpose of being used principally for business or trade.

40. On the other hand building in the Ordinance has been defined as to mean any building or part thereof together with all fittings and fixtures if any including any garden, garage, outhouse and open space attached and appurtenant thereto.

41. Whereas the land has been defined as open space not being agricultural land or space attached or appurtenant to any building. Furthermore, the term premises' has been defined as to mean a building or land let out on rent excluding a hotel.

(c) A comparison of the definitions of the relevant terms given in the late Ordinance and the Ordinance indicates that the abovecited cases cannot be distinguished on the ground that the same were given under the late Ordinance. The definitions of the above terms given in the late ordinance particularly, of the building and non‑residential building, were couched in such words, as to give wider connotation, but in spite of that the Hon'ble Supreme Court has held in abovecited case of 1976 that a ginning factory was not covered by the above definitions. In this view of the matter the above Supreme Court case cannot be ignored on the ground urged by Mr. Ijaz Ahmad. In my view it is applicable to the instant case on all fours."

42. From the decision shown to me by the learned counsel for the parties, it is clear that before a factory is considered to be ousted from the ambit of the repealed Ordinance, it must be let out as a factory meaning thereby that premises alongwith the manufacturing equipment to be the subject‑matter of a lease.

43. In the instant case as indicated above, the case of the appellant was that the respondent rented out only factory room to him. He himself installed one electric motor of 3 H.P. in 1970 and the other electric motor of 71/2 H.P. was installed in the year, 1972. It is admitted position that all the materials belong to the appellant including the Ice Candy Machine.

44. The argument of the learned counsel for the respondent is that is the factory room alongwith electric motor of 3 H.P. was given by the respondent and not any plant and machinery or other, apparatus from the respondent clauses (a) and (f) are applicable. The purpose of these clauses is that the Ordinance will not apply where a building or rented land has been leased out alongwith the plant and apparatus. In such a case, the rights of the landlord and tenant would be governed by the general law. But, where, as here, a factory room alone was given without any plant or apparatus or Ice Candy Factory eviction application would be competent. As such rights of the parties are, governed by the provisions of the Ordinance.

45. The upshot of the whole discussion is that the learned Rent Controller was justified in coming to the conclusion that he had jurisdiction in the matter. I am accordingly of the view that this contention of the learned counsel for the appellant is without any substance.

46. Reverting to the last contention of the learned counsel for the appellant that the learned Rent Controller has erred in law in holding that the burden of proof for non‑payment of rent for the disputed period lay on the appellant. In the case of Muhammad Bashir v. Mst. Rehmat Bibi and 5 others 1970 S C M R 478, the Hon'ble Supreme Court of Pakistan observed as follows;

47. "The question of onus has no important bearing on the case because both the parties have led evidence in support of their In the case of Mst. Qaisar Khatoon and 12 others v . Moulvi Abdul Khaliq and another P L D 1971 S C 334, the Hon'ble Supreme Court observed as follows:‑--

48. "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record, vide Manaka v. Madha Rao A I R 1950 P C 25. The question of the burden of proof becomes material only where the Courts find the evidence so evenly balanced that it can come to no definite conclusion, vide P L D 1948 P C 171. In such an event the rule is that the party on whom the onus lay must fail. This, however, is not the case here, for, the evidence is; by no means, evenly balanced."

49. In yet another recent decision reported in Mst. Khatun v. Malla and 5 others 1974 S C M R 341 the Hon'ble Supreme Court observed as under:‑-----

50. "It is now well‑settled that where evidence has been led by both sides and considered, the question of onus loses its importance. Where the whole of the evidence is before the Court and it has no difficulty in arriving at a conclusion, it becomes unnecessary to enter upon a discussion of the question of onus, vide Muhammad Aslam Khan v. Feroze Shah A I R 1932 P C 228 and Nand Kishwar Bux v. Gopal Bux Rai A I R 1940 P C 93."

51. In the present case the respondent averred that the appellant had wilfully failed to pay/tender rent of the premises in dispute from 1‑5‑1977 to April, 1979, that is 24 months amounting to Rs. 14,400. The appellant filed written statement and averred therein that he had been regularly paying the monthly rent through the Rent Collector of the respondent. He denied that he had committed default in the payment of rent for the disputed period. He further averred that the respondent had been regularly not in the habit of issuing rent receipts to any tenant. He also averred that he had already paid rent of the premise in dispute to the respondent for the period upto April, 1979 and the electricity charges. The respondent asserted in his affidavit‑in‑evidence that the appellant was giving him enhanced rent at Rs.600 per month commencing from the month of October, 1971 to the month of Aril, 1975 on respondents' continuous demands for the return of his premises, the appellant had been quarrelling and stopped paying rent from May; 1977. The respondent to a suggestion replied that his Rent Collector Allah Rakha used to collect the rent from the appellant and sometime the appellant used to pay rent to him. It is advantageous to reproduce the relevant portion from the cross‑examination of the respondent which reads:

52. "I have never issued rent receipt to any tenant including the opponent. My Rent Collector also never issued the rent receipt It is incorrect to say that I have received the rent upto April 1979."

53. As against the above evidence the appellant in his affidavit‑in evidence replied that he continued to be the tenant of the respondent at the monthly rental of Rs. 200 and paid rent upto April, 1979. The appellant further stated that as per practice the rent from him any other tenants of the adjoining shops was being collected by Rent Collector of the respondent Mr. Bapoo, but no rent receipt were ever issued by the respondent. The appellant also averred that during all this period the rent paid by him was at the rate of Rs. 200 per month and at that rate paid the rent to the respondent for the period upto April, 1979 besides the electric consumption charges as demanded by him. His case is that the respondent had filed the eviction proceedings to bring pressure upon him to agree to the increase of rent from Rs.200 to Rs.600 per month.

54. From the above evidence it is clear that the case of the appellant that he paid rent for the disputed period to the respondent. He has also stated that he used to pay rent to Rent Collector Bapoo. The onus was upon him to prove that he paid the rent to Rent Collector Bapoo. He ought to have produced the Rent Collector.

55. In Allah Din v. Habib P L D 1982 S C 465 the Hon'ble Supreme Court laid down the following dictum:‑

56. "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13(2)(1) of the Sind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non‑payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. The principle thus stated was held to apply to the case of a transferee for value who has paid his money in good faith and without notice of the original contract under section 27(b) , Specific Relief Act, 1877, in the case of Khairun Nisa v. Muhammad Ishaq P L D 1972 S C 25."

57. The Hon'ble Supreme Court laid down the dictum that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13(2)(i) of the repealed Ordinance or as required by section 15(2)(ii) of the Sind Rented Premises Ordinance, 1979 that the tenant has failed to pay rent but it must be appreciated that non‑payment of rent is a negative fact and the landlord appears in Court and states on oath that he has not received rent for the certain period, it would be sufficient to discharge the burden that lies under law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered rent for the period in question.

58. Applying the above dictum to the facts of the case it is clear) that the assertion on oath of the respondent that the appellant had not -paid or tendered rent for the period in dispute. The respondent had successfully discharged the burden of proof and the onus was shifted to the appellant. The evidence in this case fully justified the assertion on oath of the respondent that the appellant had failed to pay or tender rent to him. To have dismissed this plea as not proved merely because he failed to produce his Rent Collector was arbitrary. In this view of the matter the finding of the learned Rent Controller is in accord with the evidence on the record.

59. For the foregoing reasons I dismiss this appeal and affirm the order passed by the learned Rent Controller. However the appellant is allowed to vacate the premises in dispute on or before 31‑3‑1986 subject to continue to deposit the rent in accordance with the tentative rent order. In the circumstances of the case, the parties will bear their own costs.

60. A.A. Appeal dismissed.