Briefly stated the facts necessary for disposal of this petition are that an ejectment application was filed by the petitioner seeking ejectment of the respondent from premises commonly known as East India Press, Ganpat Road, Anarkali, Lahore. The shop building with printing machinery etc, was admittedly transferred to the petitioner by the Settlement Department and the same was let out to the respondent on a monthly rent of Rs. 500, It is petitioner's own case that this rent included the rent of the shop as well as for the use of machinery and other printing equipment. He sought the ejectment of the respondent on the ground that he has been retired from service and he intends to run the printing press himself. The respondent in his written statement explained that the machinery consisting of two Tradel machines has been fixed in the back portion of the shop and in the front portion he is conducting business and these two portions stand bifurcated by a wooden partition since prior to the creation of tenancy. Learned Rent Controller after framing the necessary issues accepted the ejectment application and ordered eviction of the respondent. This led to the filing of an appeal by the respondent/tenant and the same was accepted by learned Additional District Judge, Lahore, vide judgment dated 17-9-1981. The learned appellate Court dismissed the ejectment application observing that the mere perusal of the ejectment petition shows that the petitioner/respondent gave the respondent/appellant East India Press (shop with printing machinery) on lease on a monthly rent of Rs. 500. This rent included the rent of the shop as well as the use of the machinery and other printing equipment. It was further noted in the impugned order that the Petitioner/Landlord as A. W. 1 admitted that the disputed shop along with the printing machinery was leased out to the respondent/tenant. In appeal reference was also made to provisions of the Factories Act to contend that as .Less than 10 persons were employed in the disputed premises, it. Was neither an industrial concern nor a factory. This plea was repelled by the appellate Court observing that the words 'factory' and `industry' are to be given the ordinary dictionary meanings i.e. the building in which goods are manufactured and as the Printing Press is not covered by the definition of the word 'building', 'non-residential building', 'residential building' and 'scheduled building' and Rented Land as contained in the Ordinance, hence, Rent Controller had no jurisdiction in this matter. This has led to the filing of this constitution petition by the petitioner/landlord.
2. Learned counsel has argued that the relationship of tenancy existing between the parties falls within the definition of the term 'non-residential building' as defined in section 2(d) of Urban Rent Restriction Ordinance, 1959. His emphasis is on the words 'business or trade' used in the said definition. According to learned counsel activity of printing cannot be considered to be not falling within the connotation of the words 'business or trade'. Reliance was also placed on Ghulam Farid and another v. Mian Farooq Nazir and another (1).
3. Learned counsel further argued that the premises presently in dispute cannot be considered to be equipped with the machinery requisite for a particular manufacturing process as two old it Tradel machines have been admittedly installed in the back portion only and such machines would not make the premises a factory, and so such premises do not stand excluded from the operation of the Rent Ordinance. In support of the above plea reliance was placed on Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. (2). In this case landlord had sought ejectment from a ginning factory and the relevant observation read as under :- "Moreover, the Act applies to residential building, non-residential building' and "rental land" as defined in section 2 of the Act and situate within an Urban area. It is common ground that the lease in the instant case was of a running ginning factory equipped with machinery for processing and ginning cotton and not merely of a "non-residential building". Therefore, it did not fall under any of the above three categories of the properties to which the Act applied. The statement in the preamble of the Act, that it applied "to certain premises" within the limits of urban area is also not without signifi--cance. Reading these qualifying words with definitions of the above stated three specified kinds of property defined in section 2, leaves -no manner of doubt that the Act did not apply generally to all manner of properties in an urban area; else it was otiose to particularize the properties to which the Act applied. A fortiori, the Act excluded from its operation what were property known as a factory equipped with machinery requisite for a particular manufacturing process. In essence in all such cases, the lease is for the use o f the machinery which is permanently fixed in certain defined premises and not of the premises simplieiter."
(1) PLD 1979 Lah. 673 (2) PLD 1976 SC 781
4. 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. It will, therefore, be seen that learned counsel cannot have any assistance from the above-quoted judgment of the Supreme Court, rather it goes against the plea of the petitioner. The other plea that as activity of printing also falls within the connotation of the terms 'business or trade' hence the premises . In dispute is to be treated as "non--residential building" is ex facie without any merit. The Legislature has used the words "a building being used solely for the purpose of 'business or trade' while defining the term 'non-residential' building to as to distinguish it from a 'residential building'. Reference may be made to section 13 of the Ordinance at this stage. Subsection (1) of this section provides inter alia that a tenant of a 'building' or 'rented land' shall not be evicted there from except in accordance with the provisions of this section. The subsection (2) prescribes the grounds in respect of which a Controller is to be satisfied for obtaining direction of evic--tion. Thereafter in-subsection (3) requirements have been prescribed for seeking possession on the plea of requirement of the premises in good faith for personal occupation or for the occupation of the children. It is here that distinction is made in 'residential building' and non-residential building. This distinction between the two contemplated by the Ordinance is also relevant for the purposes of section 11 or section 19 of the Ordinance as a residential building cannot be converted into a non-residential building except with the permission in writing of the Controller. It will, therefore, be seen that the relation of tenancy which is sought to be regulated by the Ordinance is one created in respect of 'building' or 'rented land', and the further categorization of the building with reference to the use to which the same is being put is for the limited purposes. At this. Stage, reference may be invited to the case of Muhammad Saleem and others v. Begum Musarrat Bashrul Hassan and another (1), decided by Supreme Court on 1-4-1981. In this case a bungalow in Gulberg, a residential area, was rented out for residential purposes but the tenant installed a printing Press therein. It was contended that the building w;s being used as commercial premises for almost seven years without any objection from landlady and as the premise stood converted into non-residential building, the same cannot be got vacated for use as a residential building. This plea was repelled by the learned Judges of the Supreme Court by making reference to the view taken in case of Raja Qurban Khan (2) and it was held that the conversion being illegal warranted tenant's conviction. These cases are cases of conversion of building to a use other than the one for which building was leased and it is also apparent that tenancy was in- respect of the 'building, alone and not in respect of machinery as well. The question whether the machinery installed or the premises qualify to be reckoned as Factory or Industrial concern under Labour Laws is not at all relevant in this context. I am, therefore, of the considered view that where along with the building, the machinery installed therein is also rented out such relationship of tenancy no created cannot be considered as letting out of a building which is being solely used for business or trade. It is to be noted that in the Lahore case of Ghulam Farid referred to above the learned Judge also observed that:
(1) PLD 1981 SC 578(2) 1980 SCMR 590 "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," meaning thereby that premises along with the manufacturing equipment has to be the subject-matter of a lease.
The precedent case, therefore, is of no help to the petitioner. In the instant case as indicated above, the case of the petitioner himself was that the Respondent got East India Press (shop with Printing Machine etc.) on lease on monthly rent of Rs. 500 (Para. 2 of Ejectment Petition). It stands abundantly proved even otherwise on record that the lease was of press as installed in the building and the tenancy so created does not stand regulated by Ordinance of 1959.
5. The upshot of the whole discussion is that the learned Addl. District Judge was justified in coming to the conclusion that the Rent Controller lacked jurisdiction in the matter. This Petition is, therefore, dismissed in l1mine.