1. ' KHAWAJA NAVEED AHMED, J.---Granted, subjects to all just exceptions.
2. Messrs Shafiq Textile Mills Ltd. Have filed this constitutional petition through their Executive Director Sheikh Muhammad Abdullah, challenging the concurrent findings of both the courts below who have held that the rented premises does not fall under the SRPO, 1979 as the rented premises is a factory:-- "Mr. Muhammad Sharif, Advocate appearing on behalf of the petitioner has drawn my attention towards the tenancy agreement executed between the parties on 9-7-2005 for a period of 11 months. The said agreement was mutually extendable for further 11 months, but the landlord well before expiry of tenancy agreement had addressed letters, dated 10-2-2006, 17-3-2006 and 3-6- 2006 to the respondent No. 1 that the landlord is no more interested in renewal of the tenancy agreement. According to his tenancy agreement it is mentioned that "owners have agreed to let out sheds known as "Blow room-2" in the factory premises measuring about 27400 sq. Ft for storage of goods purpose. The tenant is agreed to take the said godown on rental basis on the terms and conditions hereinafter appearing."
2. ' Now the landlord had filed ejectment application in the Court of Rent Controller for ejectment and the Rent Controller had declined to entertain the application on the ground that the rented premises is a factory and such does not fall within his jurisdiction conferred upon the Court under Sindh Rented Premises Ordinance, 1979.
3. ' The landlord had filed appeal before the learned District Judge, which was transferred to the learned 1st ADJ, Karachi Central who was pleased to dismiss the same on the ground of non- applicability of SRPO, 1979.
4. ' Thereafter the landlord has filed present petition, challenging the order of both the courts below on the point of jurisdiction and applicability of SRPO in the peculiar circumstances of the case.
5. Notice of this petition was given to the respondents, which has been served upon them. No one has appeared on behalf of respondents. Only a short point of jurisdiction is involved. The learned counsel has relied upon CLC 1998 Page 1883, Muhammad Saleem v. Altaf Hussain. In this case the learned Judge of the Lahore High Court has relied upon PLD 1970 Lahore Page 455, PLD 1976 SC Page 781, PLD 1985 Lahore Page 365, 1988 CLC Page 318, PLD 1982 Lahore Page 37 and has discussed the same in the following manner:--
(11) In "Messrs Rehman Cotton Factory. v. Messrs Nichimen Co. Ltd., Karachi" (PLD 1970 Lah. 455), it has been held,the Rent Ordinance, applies to four types of properties, nameiy, residential, non- residential buildings, 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 "Ahmed 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 provisions 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."
6. ' The Court has given its findings as under:-- "(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 building, without machinery, though subsequently used by the tenant for industrial purposes, will not bring the buildings, 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 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."
7. ' The Court had finally allowed the appeal in the above mentioned matter.
8. ' The learned Advocate for the petitioner has relied upon another citation reported in 1999 CLC page 2012, this is case of Karachi Messrs Usman Brothers v. Muhammad Aslam and 3 others. In this case the Court has observed as under:- "Admittedly in the present case this plea was not raised before the trial Court as is evident from the issues framed by the learned Rent Controller as well as from the record. There is no evidence on the record to indicate that it is a mill or a factory., On the contrary there is simple evidence that when the premises were let out it was an open plot of land where subsequently, go-down-cum- workshop was constructed. In view of the facts of the case the plea that the premises are a factory or a mill is untenable. Further, since the plea was not raised before the learned Rent Controller who could record evidence in this regard the same cannot be allowed at this stage."
9. ' The Court in this case has relied upon PLD 1993 Karachi Page 181, Blacks Law Dictionary, PLD 1994 Karachi page 112, 1985 CLC Page 1675 and 1996 SCMR Page 771.
10. Keeping in view of the case law produced by the learned Advocate for the petitioner and after perusal of the rent agreement between the parties I am of the view that both the courts below have committed error and have shown haste in deciding the matter of jurisdiction. From the contents of rent agreement placed on record it is clear that the premises has been let out for the purpose of go-down and not for running a factory. If any factory has been established subsequently it is a matter of evidence, which can be adjudicated upon after framing the issue on this point.
11. ' Consequently I set aside both the judgments of courts below and remand back this case to the learned Rent Controller with the direction to proceed with this case and adjudicate upon it after framing, amongst others, the issue of jurisdiction and decide the same after recording the evidence according to law.
12. ' The petition is allowed with no order as to costs.