NOOR TIMBER IMPORTERS, KARACHI Versus HAJI DEEN MUHAMMAD AND SONS, KARACHI

ORDER

1. This first rent appeal is directed against the order dated 10‑2‑1993 passed by the Vllth Senior Civil Judge and Rent Controller, South, Karachi, in Rent Case No.636 of 1985 (old No.4849 of 1981), dismissing the eviction application filed by the appellants..

2. The facts leading for the filing of the above petition are that the appellants are the owners/landlords of plot of land bearing Sheet No.LEA‑9 Survey No.16/6 (old Survey No.32) with structures thereon comprising two rooms and Saw Mills admeasuring about 760 Sq. Yds. situated on Hussainbhoy Bandookwala Road, Old Haji Camp, Karachi at a monthly rental of Rs.1300 per month.

3. The appellants filed amended eviction application on the ground that they required the premises in question for reconstruction of new building at the plot after demolition of the existing structures and have obtained necessary sanction for such reconstruction/erection from the competent authority. The respondents filed amended written statement. The respondents stated in para 1 of the amended written 'statement that "the contents of para No.l of the application are admitted to this extent that the applicants are the landlord of a commercial plot of land with permanent structure raised thereon for use as godown for stocking, piling and displaying big wooden logs in wholesale as needed for running timber business with the rooms as offices and Saw Mills fixed and installed therein essential for timber business which plot and premises bear old Survey No.32‑K‑1, 15/6‑D/8 and New Survey No.K 13‑B‑6S‑10 and the opponents are in possession of the said plot and premises as tenant under the applicants at monthly rent of Rs.1300 since about 1964".

4. "The respondents denied the allegations made in the eviction application."

5. Muhammad Baker son of Haji Fazalbhai filed Affidavit‑in‑Evidence on behalf of the appellants alongwith Affidavit‑in‑Evidence of Jabir Ali Hemani son of Haji Jerani Bhai, Amanullah S/o H. Noor Muhammd Bilwani. Saifullah Khan son of Haji Din Muhammad, one of partners of respondent filed Affidavit‑in‑Evidence on behalf of the respondent. They were cross examined by the learned counsel for the respective parties.

6. From the pleadings of the parties the following points were worked out for the determination of the case:‑‑

(1) Whether the application is not maintainable?

(2) Whether applicants require the disputed property, bona fide in good faith for reconstruction?

(3) What should the order be?

7. Learned Controller on assessment of the evidence on the record found that the application seas not maintainable. She decided the point No.l in affirmative and did not discuss the remaining two points. In view of the findings on the point No.l the eviction application was dismissed as the same was not maintainable. The appellants being aggrieved against the impugned order have filed the present appeal.

8. I have heard Mr. Syed Nasir Hussain Zaidi learned counsel appearing for the appellants in support of the eviction application.

9. The appellants averred in paragraph No.l of the application that they are the landlords and the respondents are the tenants in respect of a plot of land with structures thereon comprising of inter alia 2 rooms and Saw Mills admeasuring about 760 square yards bearing Sheet No.LEA‑B Survey No.16/6 (old Survey No.32) situated on Hussain Bhai Bandukwala Road, Old Haji Camp, Karachi at a monthly rental of Rs.1,300.

10. It is an admitted position that the appellants let out the plot of land with structures thereon comprising of inter alia 2 rooms and Saw Mills admeasuring about 760 square yards.

11. The respondents filed written statement stating therein that "the contents of para. 1 of the application are admitted to this extent. that the applicants are the landlord of a commercial plot of land with permanent structure raised thereon for use as godown for stocking, piling and displaying big wooden logs in wholesales needed for running timber business with the rooms as offices and Saw Mills fixed and installed herein essential for timber business which plot and premises bear old Survey No.32‑K‑1, 15/6‑D/8 and New Survey No.K‑13‑B‑6S‑10 and the opponents are in possession of the said plot and premises as tenant under the applicants at monthly rent of Rs.1,300 since about 1964."

12. The word "land" is defined in section 2(e) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as `the Ordinance') and it means land or open space, roll being agricultural land or land or open space attached or appurtenant to any building. The word "premises" as defined in section 2(h) of the Ordinance, means a building or land, let out on rent, but does not include a hotel.

13. It is advantageous to reproduce section 3 of the Ordinance which reads as under:‑‑

14. "3. Applicability .‑‑‑(1) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this Ordinance.

15. This point was considered by Mr. Ajmal Mian, J. (now Judge Supreme Court of Pakistan) in the case of Bashir Ahmad v. Mst. Zubeda Khatoon (1983 CLC 390). After discussing various definitions and section 3 of the Ordinance held:‑‑ "that the words "building "and "land" have also been defined in section 2(a) and (e) of the Ordinance and, therefore, the definitions given of the above two words in the Ordinance are to be read with the definition of premises given in section 2(h). The definitions of the three terms, namely, building, land and premises given in the Ordinance do not permit the inclusion of a factory of the nature in question".

16. This point was also considered by the Hon'ble Supreme Court in the case of Bashir Ahmad v. Additional District Judge, Gujranwala and others (1985 SCMR 955). It was held:‑‑ "that the Controller and the appellate Court came to the conclusion that it was not let out as an industrial premises and it squarely fell within the definition of non‑residential building defined as one "solely for the purpose of business or trade".

17. A perusal of eviction application, written statement and the tenancy agreement, makes it clear that the plot of land with structures thereon and Saw Mills were let out to the respondents.

18. It seems that the learned Controller has rightly came to the conclusion that the application was not maintainable. Learned counsel is unable to point out any infirmity in the impugned order.

19. For the aforesaid reasons the appeal is dismissed in limine.

20. 'H.B.T./N‑493/K Appeal dismissed.