MUHAMMAD ISMAIL vs ABDUL HABIB

' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, has given rise to an interesting argument, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.

2. Appellant Muhammad Ismail is the owner of a portion of plot of land bearing S.No,1, Sheet No,LR- 3, situated at Gawadur Lane, Karachi, where he had set up a saw mill. He could not continue the said business due to ill-health and consequently leased it out to the respondent together with the constructions and machinery against a payment of Rs,5,000 p.m., and although the agreement dated 11-1-1988 was titled as "Hire Contract", it was for all practical purposes a "Tenancy Agreement". The respondent committed wilful default in payment of rent and the appellant also required the said premises for his own use, and consequently he filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the eviction of the respondent on the aforesaid grounds. The respondent who filed written statement raised a legal objection about the jurisdiction of the Rent Controller by pleading that the "saw mill" is not a premises within the meanings of section 2(h) of the Sindh Rented Premises Ordinance, 1979, and consequently the application filed under section 15 thereof was not legally competent. The objection was sustained by learned V Senior Civil Judge and Rent Controller (South), Karachi (Miss Soofia Latif), who was pleased to dismiss the application filed by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979. This order, doted 19-10-1989 is the subject-matter of the present appeal.

3. I have heard Mr. Nisarally, learned counsel for the appellant and Mr. Suleman Kassam, learned counsel for the respondent. I have also gone through the record of the case carefully.

4. It is contended on behalf of the appellant that the Rent Controller fell into error in dismissing the application for ejectment on the ground that the "saw mill" was not included within the definition of "building" as envisaged in the Sindh Rented Premises Ordinance, 1979, and was led away by the cases decided under the provisions of Sindh Urban Rent Restriction Ordinance, 1959 (since repealed), although such definition is materially different from the definition of "building" as occurred in the repealed Ordinance, which difference lies in the repealed Ordinance employing the word "furniture" which word has been altered and substituted in the present Ordinance by words "fittings and fixtures". The distinction as pointed out by the learned counsel for the appellant was considered by Ajmal Mian, J. (as he then was), in the case of Bashir Ahmad v. Mst. Zubeda Khatoon reported in 1983 CLC 390, who was pleased to observe as follows:- "A comparison of the definitions of the relevant terms given in the late Ordinance and the Ordinance indicates that the above-cited 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 of non-residential building, were couched in such words, as to give wider connotation, but in spite of that the Hom'ble Supreme Court has held in above- cited 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 PLD 1976 SC 781 cannot be ignored on the ground urged by Mr. Ijaz Ahmad. In my view it is applicable to the instant case on all fours."

' These observations have my respectful concurrence. I also desire to associate myself with the measured language of KA. Ghani, J. (as he then was) in the case of Messrs International Fisheries (Pakistan) Ltd. And 3 others v. Messrs Standard Fisheries Corporation reported in 1983 CLC 3294, who was pleased to observe as follows:--- "I would now take up the contentions raised by Mr. Khalid Ishaque, learned counsel for the defendants:

(i) The learned counsel argued that the rights of the parties are governed by the Sindh Rented Premises Ordinance, 1979 and as such the possession of the defendants is protected by the said Ordinance, 1979 and that they cannot be ejected except by resorting to the remedies under the said Ordinance.

' I, however, find that this contention cannot succeed for the reasons that the business undertaking which was entrusted to the defendants under the agreement does not fall within the meaning of 'building' and/or 'premises' as defined in section 2 of the said Ordinance. Under the said Ordinance these terms have been defined as follows: ' Clause (a). 'Building' means any building or part thereof together with all fittings and fixtures therein if any and includes any garden, garrage, outhouse and open space attached and appurtenant thereto.

' Clause (h). Premises means a building or land let out on rent but does not include a hotel."

' The procedure for making application for ejectment by the landlord from the premises is laid down in sections 14 and 15 of the said Ordinance, 1979 whereas section 13 provides that no tenant shall be evicted from the premises in his possession except in accordance with the provisions of the Ordinance.

' Considered in the light of the provisions of Ordinance, 1979 referred to above a perusal of the agreement dated 25th April, 1979 would show that neither the undertaking let out to the defendants falls within the definition of the terms 'building' or 'premises' as defined under the Ordinance, 1979 nor the plaintiffs could avail remedy as provided under the said Ordinance for the said reason and that the defendants are not 'tenants':

5. The word 'fixture' means a thing fixed or fastened in position; articles of a personal nature affixed to the free hold. According to Black's Law Dictionary the fixture is an article in the nature of a personal property which has been so annexed to the realty that it is regarded as a part of the land.

The essential question is whether the machinery installed in a factory or mill can be said to be 'fixtures' within the meanings of section 2(a) of the Sindh Rented Premises Ordinance, 1979. I have given my anxious consideration to this extended meaning, but I could not find anything to support this view. The most satisfactory mode of construction of course, is to examine the statute, and if possible, to ascertain the meaning from the statute alone. If the meaning of an expression used in a statute is plain, the intention of the legislature cannot be speculated upon and a Judge is not allowed to modify statutes to suit his own views of justice or expediency. If the legislature wanted to include a "factory" or "mills" within the definition of a "building" it could have expressed so in plain words.

6. Even if by placing widest meaning to words "all fittings and fixtures" in section 2(a) of the Sindh Rented Premises Ordinance, 1979, in place of words "together with furniture" used in section 2(a) of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed), the "saw mill" could not be brought within the meanings of "building" as envisaged by section 2(a) of the Sindh Rented Premises Ordinance, 1979. As a necessary corollary to this finding the view taken by the learned Rent Controller appears to be correct.

7. In the result the appeal fails and is dismissed with no order as to costs.