1. ABDUL HAYEE KURESHI, C. J.-The present petition has been filed by Abdul Rshman who, for the sake of brevity, is hereinafter referred to as the "tenant"; to challenge an order, dated 19-5-1980, passed by the 3rd Senior Civil Judge and Controller, Hyderabad, in Rent Application No. 522 of 1978, which had been filed by respondent Haji Mir Ahmad Khan, seeking eviction of the tenant. Respondent Haji Mir Ahmed Khan is hereinafter referred to as the landlord. By the said order, dated 19-5-1980, the Civil Judge had held on the facts of the case that relationship of landlord and tenant existed between the parties, and therefore the Rent Application filed by the landlord against the tenant was maintainable.
2. The brief facts of the case are that the landlord is the owner of a building having all the fittings etc. For- running it as a hotel. On 20-12-1975, the landlord and the tenant entered into a contract (Annexure "A" to the petition), whereby the said premises was let out to the tenant for a period of five years commencing 10-12-1975. This agreement provided that the tenant, who was styled as a "Contractor" in the agreement, was to pay a sum of Rs. 54,000 per annum in twelve equal monthly instalments for the first three years of the agreement, and thereafter, for the remain--ing two years, the tenant had to pay a sum of Rs. 60,000 per annum in equal instalments of Rs. 5,000. It is the case of the petitioner/ tenant that, on 7-4-1979, viz. 20 months .Before expiry of the term of the first contract, he entered into another agreement with the respondent/ landlord, providing for different terms in regard to letting out of the said hotel. The rent was to be paid at the rate of Rs.
3. 2,500 per month. He states that he paid Rs. 3,00,000 to the landlord. Such documents are denied by the landlord, who states that these are forged.
4. It seems the landlord wanted to evict the tenant on ground of default in payment of rent. An application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the old Ordinance) was filed by the landlord before the Rent Controller, Hyderabad, which sought eviction of the tenant. From the hotel premises on the ground of non payment of rent at the rate of Rs. 5,000 per month from February, 1979. This application was filed on 25-i0-1979. ,A written reply was submitted by the tenant/petitioner, wherein reliance was placed on the second alleged agreement, dated 7-4-1979 (disputed document). Eviction was also resisted on the ground that a summary mode of eviction under the Rent Laws was not permitted in this case, because the rights and obligations of the landlord and tenant were governed by the ordinary law, and not the special law of Rent Restriction Ordinance. It may, at this stage, be stated that this written statement was filed on 16-1-1980, by which the old Ordinance had been repealed, and the Sind Rented Premises Ordinance, 1979, had been promulgated. For the sake of convenience, the Sind Rented Premises Ordinance is referred to hereinafter as the "new Ordinance". Suffice it to say that objections were two-fold that a new agreement had replaced the old one, and such new agreement was disputed by the landlord, and secondly that the old Ordinance, or, as a matter of that, even the new Ordinance did not apply to this case. An application was made by the landlord before the Controller, seeking an order for deposit of rent by the tenant. This application was opposed by the tenant on precisely the same grounds as were raised in the written statement. The Controller, by an order, dated 19-5-1980, held that relationship of landlord and tenant existed between the parties, and thereby the preliminary issue was answered against the tenant/petitioner. It is in these circumstances that that the petitioner has filed the present petition, seeking the following reliefs :- "(1) That the order dated 19th May, 1980 of the learned IIIrd Senior Civil Judge and Rent Controller, Hyderabad, the respondent No. 2 is ab initio void as not based on facts and law.
(2) That the relationship between the petitioner and the respondent No. 1 is not that of tenant and landlord within the meaning and scope of the Sind Rented Premises Ordinance.
(3) That the learned IIIrd Civil Judge and Rent Controller, Hyderabad the respondent No. 2 has no jurisdiction over the matter in his capacity as a Rent Controller.
(4) Any other relief the honourable Court deems fit in the circumstances of this case.
5. We have heard Mr. Usman Ghani Rashid and Mr. Naimatullah Soomro.
6. Mr. Usman Ghani Rashid candidly stated that the second agreement alleged to have been entered into between the parties on 7-4-1979, having been disputed by the landlord/respondent may be kept out of consideration His case, however, is that the Rent Application was originally filed on 25- 10-1979 under the old Ordinance, and section 2(a) defined the word "building" in a manner which included a hotel. In short the argument is that the old Ordinance permitted eviction of the tenant from a hotel, but the new Ordinance specifically provided in section 2(h) exclusion of hotels from the purview of the Ordinance. He pointed out that clause (h) in section 2 of the new Ordinance defines the word "premises" as meaning a building or land, let out on rent, but does not include a hotel. Patently the argument is that, while the old Ordinance permitted eviction of tenants from rented hotel, the new Ordinance excluded such remedy. In that context it would be necessary to examine section 27 of the new Ordinance, which deals with the repeal of the old Ordinance and continuation etc. Of the proceedings instituted under the old Ordinance. Section 27 of the new Sind Rented Premises Ordinance reads as follows "27. Repeal.--(1) The Sind Urban Rent Restriction Ordinance, 1959 is hereby repealed.
(2) All appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed of in accordance with the said Ordinance.
(3) All other cases instituted under the Ordinance -'mentioned in sub--section (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any order made otherwise by the Controller be continued and disposed of in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as afore--said shall for all purposes have effect as proceedings taken or orders made under this Ordinance.
7. (4)
8. The next leg of the argument of Mr. Usman Ghani Rashid is, that, even on reading the first agreement entered into by the parties, it would appear that the parties intended to create relationship of an ordinary contract as distinct from a specific contract of tenancy. In that context, the learned Advocate has pointed out that, in the agreement, the landlord had been referred to as "party No. 1 ", and the tenant had been referred to as "Contractor party", and that the rent for the first three years of letting was at a different rate from the rate payable for the last two years of the contractual period. It seems the learned Advocate's argument is that since the parties had not chosen to style themselves as the landlord and tenant, the old Ordinance, or, the new Ordinance does not apply to this case.
9. On the other hand, Mr. Naimatullah Soomro, who appears for the landlord/respondent, has firmly relied on subsection (3) of section 27 of the new Ordinance, arid stated that all cases instituted under the old Ordinance, which were pending at the time of promulgation of the new Ordinance, shall be continued by the Controllers, and all orders passed shall have effect as orders under the new Ordinance. In short, the argument is that the right to avail of a remedy, as provided under the old Ordinance, continues despite the repeal of the old Ordinance, and any order passed by the Controller on such proceedings shall be construed as an order passed under the new Ordinance. In regard to the next argument of Mr. Usman Ghani Rashid, that even the first agreement between the parties indicated that the parties intended to have their relationship governed by the normal law, and not by the Rent laws, Mr. Soomro has contended that, regardless of the use of the words "contract" or "contractor" the relationship basically between the parties was that of landlord and tenant in respect of hotel premises, and therefore the ordinary law would not govern the case of eviction, but such eviction has to be obtained under the Rent Laws.
10. The moot question in this case is, whether the case instituted by the landlord against the tenant under section 13 of the old Ordinance on 25-10-1979 before the Controller was to proceed and be decided in accord--ance with the provisions of the new Ordinance, and despite the new Ordinance not applying to cases in respect of tenancy of hotels. It is common ground between the parties that, under the old Ordinance, a case in regard to eviction from a hotel could be validly instituted and eviction could be sought under section 13 of the old Ordinance. Reliance has also been placed on the order of the Supreme Court in the case of Mirza Khan v Allahdivaya 1978SCMR91in which the Supreme Court categorically took the view that hotels would fall within the definition of the word "building", and would, therefore, fall within the purview of the West Pakistan Urban Rent Restriction Ordinance, 1959. However, the position under toe new Ordinance is that clause (b) of section 2 specifically states that "premises" does not include a hotel. It may in passing be said that subsection (2) of section 15 of the new Ordinance refers to premises being vacated etc. The position under the new Ordinance, therefore, is clear that eviction of a rented hotel cannot be obtained by aid of section 15 of the new,Ordinance. Now, the sole question that remains to be determined is, whether the cases in respect of eviction from hotels, which were instituted. Before the promulgation of the new Ordinance and were pending shall continue to proceed, and whether orders could be passed by the Controller in such cases' despite the fact that, under the new Ordinance, eviction from hotels was specifically excepted. This can be considered and decided by reference to subsection (3) of section 27 of the new Ordinance. This provision has been reproduced above, and it clearly states that all such cases, which had been instituted under the old Ordinance, and which were pending before a Controller at the time of promulgation of the new Ordi--nance shall "be continued and disposed of in accordance with the provisions of this (new) Ordinance".
11. Subsection (3) of section 27 of the new Ordinance states that any orders passed in such old cases shall for all purposes have effect as orders under the new Ordinance. Mr. Usman Ghani Rashid states that the words "and disposed of in accordance with the provisions of this Ordinance" indicate that the rights of the parties shall have to be regulated in accordance with the new Ordinance, so that, if the new Ordinance had saved hotels from the, purview of eviction proceedings before the Controller, even the old cases could not proceed. We have considered this argument with some anxiety, and we are of the view that the words "be continued and disposed of in accordance with the provisions of this Ordinance, I have two separate disjunctive clauses. These words mean that proceeding instituted under the old Ordinance shall be continued, and such word preserve and protect the basis rights of the parties, and the further words, f that the proceedings shall be disposed of in accordance with the provisions of this Ordinance, refer to the procedure that is to be adopted. It' is only thus that the clauses can reconcile. These words indicate that the rights of the parties have to be regulated in accordance with the old Ordinance, but the procedure, that has to bet adopted for the disposal o the old cases, would be under the new Ordinance. There is a further angle from which this matter could be viewed. If we refer to subsection (2) of section 27 of the new Ordinance, we find that all cases, which were fixed before the Controller, either for arguments or delivery of judgment, had to be disposed of in accordance . With the old Ordinance.
12. It seems the intention of the Ordinance was that the old cases in which only arguments had to be heard, or, judgment had to be delivered should be disposed of in accordance with the procedure provided by the old Ordinance, but in such cases in which the case was comparatively fresh, the procedure to be adopted would be of the new .Ordinance. Subsection (2) also speaks about appeals in such cases, which were fixed for arguments, or, judgment, and as is even second appeals are filed in . Such old cases, which are now foreign to the scheme of the new Ordinance.
13. Having considered these aspects of the case, we are in no doubt that the remedy that was available under the old ordinance for eviction of defaulters from hotel premises has not been destroyed by the new Ordinance. On the other hand, we may state that normally remedies . Are not lightly interfered with. The object of the Rent Laws was to provide for speedy remedy in cases of defaulting tenants, and it will be reasonable to interpret that the remedy in respect of a tenant in occupation of hotel is not sought to be destroyed by the new Ordinance. We are of the view that the proceedings before the Controller are maintainable.
14. Coming to the next argument of Mr. Usman Ghani Rashid, that the language employed by the parties in the first agreement would seem to indicate that the parties wanted to avoid the incidence of the old Ordinance. It is very difficult to agree with such an argument, because basically an agreement of tenancy comes into existence when a person agrees to let out premises on a fixed rental, or, terms to another. If such basic require--ment is fulfilled, the relationship of landlord and tenant will come in existence, and, in such circumstances, whether the parties choose to call themselves contractors, or contracting parties, the basic relationship between them is not altered. In our view, despite the use of the words "first party" or "contract" or "a contractor", the parties are landlord and tenant, and the transaction between them is that of a tenancy agreement.
15. We dismiss this petition with costs.