COMBIND INVESTMENT (PVT.,) LTD. vs WALL BHAI and others

1. ' MAQBOOL BAQAR, J.--Appellant, through the above appeal, with the leave of Court, has assailed the judgment dated 14.11.2014, whereby a learned Single Judge of the High Court of Sindh has allowed the respondent's constitution petition against the judgment dated 11.5.2012 of District Judge, Hyderabad, in terms whereof the learned District Judge has dismissed the appeal filed by the respondent against the order of the 1st Senior Civil Judge/Rent Controller, Hyderabad, dated 16.11.2011, for his ejectment from the premises constructed on City Survey No, P/ 1165, Qazi Abdul Qayyum Road, Hyderabad.

2. The above ejectment order was passed by the Rent Controller on an ejectment application filed by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979 ("the Ordinance") on the ground of default in the payment of monthly rent and of personal bona fide use. However, through the impugned order the learned Single Judge in Chambers allowed the respondent's petition and set aside the ejectment order on the ground as urged by the respondent in the petition, and in his written statement before the Rent Controller, that since the demise premises is a hotel premises, neither the Ordinance applied to the premises nor the Rent Controller had the jurisdiction to entertain and decide the ejectment proceedings in respect thereof under the Ordinance.

3. The question before us in this case is as to whether the Rent Controller had the jurisdiction to entertain and decide the application filed by the appellant for ejectment of the respondent under section 15 of the Ordinance. According to the respondent the Rent Controller had no jurisdiction in the matter, as in terms of section 3 of the Ordinance, the said Ordinance is applicable to rented premises only. Whereas, hotel is excluded from the meaning of premises as defined by section 2(h) of the Ordinance. However, according to the learned counsel for the appellant the demised premises was never let out to the respondent for running a hotel therein, but was rented out only for business/residential purpose, and the conversion of its user to a hotel was a unilateral act of the respondent.

4. The demised premises is admittedly a commercial premises situated in a commercial area.

5. The purpose for which the premises was leased out has been broadly described in the lease agreements/deeds between the parties as business/residential. The nature of the business permissible in the premises has not been restricted by specifying any category of business.

6. Certainly running of a hotel can by no means be described as an engagement/activity other than a ' business engagement/activity, and can by no stretch of imagination be said to be an occupation not falling within the definition of the word business. The respondent in his written statement, and through affidavit in evidence of his witness has claimed that in fact the original owner of the demised premises, Mir Khalilur Rehman, the founder of the Jang Group of Companies, had commenced the construction of the demised premises with a plan to establish and run a hotel therein, under the name and style of Al-Khalil Hotel, but on account of his preoccupation with his newspaper business had abandoned the plan, but such claim has not been specifically denied by the appellant in their affidavit in evidence.

7. The premises was demised to the respondent by Mir Khalilur Rehman, under and in terms of an agreement to lease dated 18.6.1974 (Ex.26). The premises, as mentioned in the said agreement, and all the three subsequent lease agreements/deeds between the parties (Ex.26 to Ex.29), was leased out to the respondent for "business/residential purposes". Perusal of the above agreements/deeds (Ex.26 to Ex.29), and the letter dated 28.5.2011 (Ex.56) together, clearly reveals that at the time of its demise to the respondent in June, 1974, the premises consisted of a bare structure, containing ground plus mezzanine, and three upper floors, and the same was built into a hotel by the respondent by constructing rooms with attached baths in the mezzanine and the upper three floors within the knowledge, and with the consent and approval of Mir Khalilur Rehman.

8. In order to substantiate the above one may refer to the following recital as contained in the lease agreement dated 30-9-1974 (Exh.27).

9. "AND WHEREAS the LESSOR has constructed (7) rooms with attached bath in about half portion of the big hall on the first floor of the building at his own costs and intends to construct (7) rooms in the remaining portion of the said hall and (4) rooms in the hall on the Mezzanine floor of the building at his own costs."

10. ' And then to the lease deed dated 8.12.1976 (Ex.28) which contains the following recital: "AND WHEREAS the lessee has constructed (14) rooms with attached baths in the big hall on the first floor and (4) rooms in the hall on the Mezzanine floor of the building at his own costs on the clear understanding that the construction so erected being an accretion to the building shall become the property of the Lessor without payment of any compensation or value to the Lessee and in consideration thereof the Lessor shall not enhance the agreed rent of Rs,4,000/- p.m. upto 31st day of May, 1978."

11. The above has, to the extent of the factum of the construction, been repeated in the lease deed dated 01.6.1986 (Ex.29). The said deed also records that the respondent, the lessee, "has further requested the lessor to grant him permission to construct/alter the premises to suit his requirements" whereas through clause 2(b) of the said deed, the lessor acceded to the said request in the following terms: "(b). That any construction/alteration/additions by the lessee shall be done only by approval of Hyderabad Development Authority and under the supervision of a Licensed Architect/Engineer only on the written consent of the Lessor."

12. Through his letter dated 28.5.1986 (Ex.56) also, Mir Khalilur Rehman permitted the respondent to make amendments, alteration, or addition to the demise premises, with the approval of the Hyderabad Development Authority. Significantly the address of the respondent, as mentioned in the letter describes the demised premises as 'Palace Hotel".

13. In fact, the fact that at the time of its demise the premises was 'merely a structure, categorically and repeatedly pleaded by the respondent in his written statement and deposed by his witness through his affidavit-in-evidence has not only remained un rebutted throughout but the appellant's sole witness, Ghulam Moinuddin, during his cross- examination has admitted that the premises, when leased out, was just a structure of a building, which was completed with further construction and finishing by the respondent.

14. The respondent's witness during his evidence produced; seventeen bills paid by the respondent to Indus Gas Company, for the gas consumed at Palace Hotel, in the demised premises for the years 1974 to 1988; twenty three receipts of payment made by the respondent to Sindh Employees Social Security institution towards social security contribution on behalf of Palace Hotel for the years 1974 to 1989, fifteen paid challans of "tax on hotel" paid to Excise and Taxation department in respect of Palace Hotel for the years 1974 to 1977. Challans of the property tax paid in respect of demised premises on behalf of appellant, describing the demised property as a Hotel. The appellant have neither denied the authenticity of the above documents nor have controverted their relevance.

15. The position that emerges from the foregoing is that undisputedly the premises was being constructed by its original owner as a hotel. At the time of its demise, the premises was merely a structure of the building, the respondent within the knowledge, rather with the permission of its owner, progressively constructed several rooms with bath rooms in the mezzanine and upper three floors of the premises. The owner never objected to the construction and/or to its nature, he rather allowed the respondent to continue to carryout construction to suit his requirements; while the respondent had already, with the earlier permission of the owner, constructed ten rooms with attached baths in the first floor, and four rooms in the mezzanine floor. The respondent thus completed the hotel premises consisting of ground plus four upper floors. The appellant at no stage stated, if at all, as to what other use/purpose the premises was ever put to. With so many rooms constructed with attached baths in the four floors of the demised premises, which admittedly is a commercial premises, the premises could hardly be more suitably used for any purpose other than a hotel. The fact that from the very beginning the premises was registered/mentioned as a hotel with the various government departments, institutions and the gas supply company, and that 'Hotel Tax' is being paid in respect of "Palace Hotel" situated. in the demised premises since 1974, is clearly evident from the documents discussed in the foregoing paragraph.

16. At no point in time, Mir Khalilur Rehman, the original owner of the demised premises, or after his death the appellant, the present owner, objected to the hotel being housed and run in the demised premises. Had the respondent indulged in the wrong/unauthorized user of the building, in breach of the lease agreements/deeds, the owners would certainly have objected to the same. The appellant have not even alleged that they remained unaware of the premises being used for a hotel. Indeed in the fact and circumstances of the case, it would have been preposterous to plead so, as it is wholly inconceivable that for about forty years, the owners of a fairly large four storied commercial building, situated on a major main road, in an important commercial area of the second largest city of the Province of Sindh would not know of the same being used by the tenant for housing and running a hotel.

17. More so when the owners also own and manage the largest media group of the country, having correspondents/reporters, and a large network all over the country, including a bureau office in that city. The appellant have also not claimed that the hotel was being run in a clandestine manner.

18. The appellant in their legal/eviction notice dated 23.9.2000 to the respondent (Ex.32) have claimed that their Executive Director, Real Estate, along with the Manager Estate and Accounts officer and also the Hyderabad Bureau Chief visited the premises. If from noting else, the appellant's knowledge of a hotel being run in the demised premises, is clearly evident from the above assertion in the notice, as it was not possible for the appellant's visiting team of senior concerned officer not to have noticed the above facture, but if that also was not sufficient, the respondent's own claim, as contained in his reply to the above notice (Ex.33), that since the very beginning and within the knowledge of the appellant, he has been running a hotel in the demised premises under the name and style of Palace Hotel, should have awaken the appellant from their deep slumber.

19. Had the hotel been housed and established unauthorized the appellant would have certainly objected to the same, and such misuse would have provided to them a very strong ground for the eviction of the respondent. However, the appellant did not even allege and/or pleaded the same in their two notices, being the notice under section 18 of the Ordinance, and the legal/eviction notice, and/or in their eviction application, although allegation and proof of the unauthorized user was also essentially required to save the proceeding from ouster of jurisdiction.

20. The fact that a hotel is/was being housed and managed in the demise premises has never been an issue for the appellant, is evident also, from the fact that though in their notice under section 18 of the Ordinance, which was meant only to intimate the change in the ownership of the demised premises, the appellant raised the issue of the monthly rent, and claimed that the rent was very low as compared to the prevailing rent in respect of similar premises, in similar circumstances, in the locality and the adjoining localities, and sought enhancement of rent from Rs,7,000/- per month to Rs,75,000/- per month, and also at the same time requested the respondent to vacate the premises, but did not alleged any misuse and/or conversion of the user of the premises at all. It is also difficult to believe that a person would know the prevailing rent of premises similar to his own, which are in similar circumstances, in the locality, and in the adjoining localities, but would not know that his said building is being used as a hotel.

21. As noted earlier, not only in their two notices but also in the eviction application, the appellant, despite the fact that the respondent in response to the eviction notice has clearly stated that since the very beginning the demised premises is being used by him for housing and running a hotel in the name and style of "Hotel Palace", the appellant, far from invoking the ground of unauthorized conversion of user, as provided by section l5(2)(iii)(b) of the Ordinance, in their written statement did not even mention as to for what purpose the premises was leased out, and/or, was or is being used, and it was only through the affidavit in evidence of their witness that they alleged unilateral conversion of the user of the premises by the respondent, which was/is not permissible under the law as none of the parties to a judicial proceeding can be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case cannot rest on such evidence. Even otherwise, the said allegation of unilateral conversion as contained in the affidavit-in- evidence was vague. Neither was it stated as to from what other use the premises was converted into a hotel, nor was it mentioned as to when the alleged conversion took place, absolutely no material to prove the alleged conversion was produced. Furthermore the evidence of their sole witness on the above question was/is of no avail, as the premises was admittedly leased out to the respondent in the year 1974, whereas, as admitted by the witness, he was appointed by the appellant in the year 2006 only, and further that he was not present at the time the terms of lease were negotiated between Mir Khalilur Rehman and the respondent.

17. However, ignoring all the above and the overwhelming evidence to the effect that right from the very inception the demised premises is continuously being used for housing and running a hotel therein and that there was absolutely no evidence which may even slightly suggest that the premises was every used for any purpose or business other than housing and running a hotel, the Rent Controller assumed the jurisdiction by holding as follows, and ordered eviction of the respondent on the ground of default and personal bona fide use: <i>"initially the rented premises was rented out to the opponent for business/residential purpose and not for "Hotel" purpose and the subsequent conversion of building for hotel purpose, unilaterally by the opponent would not alter the nature of premises as it was originally stood so as to exclude same from the provisions of SRPO, 1979."</i> ' The above finding/conclusion was to say the least is absolutely perverse, contrary to evidence and against the law, and therefore to say that since such finding was upheld by the Appellate forum could not have been interfered with by the High Court in its writ jurisdiction is wholly misconceived and untenable, as by holding the above the Rent Controller slipped outside his jurisdiction, it rather usurped the jurisdiction in the matter unwarranted by law and thus rendered its order a nullity and therefore it had become mandatory for the High Court to set aside the order which the Court rightly did. We, therefore, do not find any justification in interfering with the order of the High Court which we uphold. The appeal is consequently dismissed with no order as to costs.

22. Sd.

23. Maqbool Baqar, J ' Since I am in disagreement, I have written my separate judgment, as attached.

24. Sd.

25. Anwar Zaheer Jamali, C.J.

26. Sd.

27. Maqbool Baqar, J ' ANWAR ZAHEER JAMALI, C J.--I have had the benefit of going through the judgment authored by Mr. Justice Maqbool Baqar, the other honourable member of the Bench who had heard this appeal on 29.12.2015. With due deference, I am in disagreement with the view taken by him in his proposed judgment, therefore, I proceed to write my separate judgment in this appeal as follows:- This appeal arises out of Civil Petition No,68-K/2015, wherein leave was granted vide order dated 03.4.2015, which reads as under:- "The learned High Court, in constitutional jurisdiction, had set aside the concurrent findings of the Rent Controller and the Appellate Court and dismissed the ejectment petition of the Petitioner/ Landlord on the ground that since the premises in question were being used as hotel, therefore, it was excluded from the definition of the premises given in Section 2 of the Sindh Rented Premises Ordinance, 1979. The learned counsel referred to various lease deeds; the first being 18th June 1974, subsequently on 8th December 1976 and 1st June 1986, which all show that premises were rented for business/residential purposes and there was no mention that they were let out for use as hotel.

2. In the light of these documents and the submissions made, we need to examine whether learned High Court has not erred in setting aside the concurrent findings. Leave to appeal is therefore, granted. The case be listed in the next session."

28. Briefly stated, the background of this litigation is that on 07.4.2010, the appellant instituted rent case No,13/2010, before the Court of Rent Controller-I, Hyderabad, with the averments that they are owner and landlord of the property bearing survey No,F/1165, Qazi Abdul Qayyum Road, Hyderabad (in short "the rented premises"), which is being occupied and used by the respondent Wali Bhai as tenant, having been initially let out to him by the previous owner Mir Khalilur Rehman under a written tenancy agreement dated 18.6.1974, modified vide another agreement dated 30.9.1974. After the change of ownership in their favour, on 22.7.2000 the appellant issued notice under section 18 of the Sindh Rented Premises Ordinance, 1979 (in short "Ordinance of 1979") to the respondent intimating him about such change of ownership, which was received in time, but belatedly replied on 28.9.2000. Since the earlier notice was not responded for a considerable period, in the meantime another notice dated 23.9.2000 was also issued by the appellant calling upon the respondent to vacate the rented premises on account of willful default in the payment of rent. In addition to it, the respondent was further requested to vacate the rented premises, being required for the personal use and occupation of the appellant.

29. In the above circumstances, due to the failure of respondent to respond positively, on 07.4.2010 appellant filed R.C. No,13 of 2010 under section 15 of the Ordinance of 1979 before the Court of 1st Rent Controller, Hyderabad, seeking his eviction on the grounds of default in payment of rent from July 2000, and personal need of appellant, as detailed in paragraphs 4 and 6 of the rent case. In addition to it, in paragraph-7 appellant also took the plea that the original tenant Wali Bhai had sub-let the rented premises to some other persons. Thus, on these grounds, he was liable for eviction.

5. After service of notice on the respondent through publication, on 6.8.2010 written reply was submitted by him through his attorney, Muhammad Ashraf, wherein he admitted the receipt of both the notices dated 22.7.2000 and 23.9.2010 sent by the appellant, but apart from denial of appellant's claim as regards default in the payment of rent, their personal need and subletting, he also challenged jurisdiction of the Rent Controller with the assertion that since the rented premises were being used as "hotel", therefore, as per the definition of "premises" under section 2(h) of the Ordinance of 1979, the ejectment case was not maintainable before the Rent Controller. In his written reply, respondent further disclosed that on refusal of appellant to receive payment of rent, it was firstly remitted to him, through money-orders and thereafter it was deposited with the Rent Controller/4th Senior Civil Judge, Hyderabad, vide Rent Application No,746/2000 and in this manner the rent was being deposited since October 2000.

6. In view of the above divergent pleadings of the parties and denial of claim of the appellant by the respondent, the case was fixed by the Rent Controller for parties' evidence, during which from the appellant side, their Manager and authorized representative Ghulam Moinuddin filed his affidavit in evidence (Ex-25) before the Rent Controller on 23.9.2000. in his affidavit in evidence he reiterated in detail all the relevant facts of the case of appellant about the existence of relationship of landlord and tenant between the parties; commission of default in the payment of rent; personal need of rented premises by the appellant, subletting by the respondent; more importantly the fact that at no stage of the proceedings, the rented premises were ever let out to the respondent as Hotel, which might be a unilateral step taken by him, as it never formed part of the terms of any written lease agreements executed between the parties from time to time. At the stage of respondent's evidence, affidavit in evidence of Muhammad Amin (Ex-54), statedly sub-attorney of Muhammad Ashraf, who was statedly attorney of respondent, was filed on 06.5.2011 along with another affidavit in evidence of witness Muhammad Nadeem (Ex-55). After the conclusion of proceedings before the Rent Controller, arguments of both the learned Advocates for the parties were heard and vide judgment dated 16.11.201.1, the ejectment application was allowed by the Rent Controller by answering the question of non- maintainability of the rent application in the negative and other points for determination relating to service of notice under section 18 of the Ordinance of 1979; commission of willful default in the payment of rent and the personal need of the appellant in the affirmative.

30. Aggrieved by such judgment of the Rent Controller, the respondent filed FRA No,2/12 before the Court of District Judge, Hyderabad, through his attorney Muhammad Ashraf, which was heard and dismissed by the appellate Court vide its judgment dated 11.5.2012, thereby upholding the findings of the Rent Controller on the issue of maintainability, service on notice under section 18 of the Ordinance of 1979, default in the payment of rent and personal need, and also on the question of limitation that the appeal preferred before the appellate Court was held to be barred by limitation.

31. These concurrent findings, recorded by the two Courts below were then challenged by the respondent before the High Court of Sindh, Circuit Bench at Hyderabad through Constitutional Petition No,S-411/2012, which was heard by learned single Judge in chambers and allowed with the observation that since the rented premises were being used as a hotel, therefore, in view of the definition of the "premises" under section 2(h) of the Ordinance of 1979, the Rent Controller had no jurisdiction; moreover, since the orders of the two fora below were without jurisdiction, therefore, the question of limitation was also not a hurdle for the High Court in allowing such Constitution Petition.

32. In the present appeal, as could be seen from the above reproduced leave granting order, the only moot point is "whether by virtue of definition of premises under section 2(h) in the Ordinance of 1979, subsequent conversion of rented premises into hotel, though originally let out for business/residential purposes, will oust the jurisdiction of the Rent Controller and the High Court was justified in forming such conclusion". In this regard, in the first place it will be apt to take benefit of the findings of the two Courts below on this point, recorded in their respective judgments, which read thus:- Findings of the Rent Controller: Points for Determination.

33. ' Point No,1: Whether the rent application is not maintainable at law? ............................................................

34. Point No,1: ' Burden of this point lies upon the opponent. Learned counsel for opponent Mr. Syed Ahsan Ali Shah argued that instant rent application is not maintainable under Sindh Rented Premises Ordinance, 1979 and this application is filed on the basis of lease agreements instead of rent agreement. Further property in question is Hotel which does not come in the definition of case premises under section 2(h) of Sindh Rented Premises Ordinance, 1979.

35. ' Conversely, learned counsel for applicant Mr. Zafar A. Rajput has argued that present rent application is maintainable under Sindh Rented Premises Ordinance, 1979. Initially the rented premises was rented out to opponent for business/residential purpose and not for "Hotel" purpose and the subsequent conversion of building for hotel purpose, unilaterally by the opponent would not alter the nature of premises as it was originally stood so as to exclude same from premises of Sindh Rented Premises Ordinance, 1979. In support of his contentions he has relied upon 2003 SCMR 722, 1984 CLC 997 and PLD 1973 SC 218.

36. ' I have carefully heard both parties counsel and gone through the relevant law and proceedings.

37. ' Section 27 of Sindh Rented Premises Ordinance, 1979 defines repeal: (1) The Sindh Urban Rent Restriction Ordinance, 1959 is hereby repealed.

38. All appeals, and such cases before a Controller as are fixed for arguments or judgments which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance.

39. All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceedings taken or order made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance.

40. Notwithstanding the provisions of subsection (2) all orders made in pursuance thereof and any order made under the Ordinance mentioned in subsection (1) in any proceedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provisions of section 22.

41. ' It appears that Sindh Rented Premises Ordinance, 1979 is fully applicable to the present matter.

42. ' Carefully reading of the contents of lease agreement executed between previously owner Mir Khalilur Rehman and opponent dated 18.6.1974 produced at Ex.26, lease agreement dated 30.9.1994 produced at Ex.27 and lease deed executed between previous owner and opponent dated 8.9.1976 shows that it is rent agreement merely using the word agreement of lease and lease deed does not change the complexion of rent agreement as defined in section 5 of Sindh Rented Premises Ordinance, 1979. In all the agreement of lease and lease deed produced at Exhs.26, 27, 28 clearly mentioned by the previous landlord Mr. Khalilur Rehman that the demised premises is rented out for business/residential purposes to opponent.

43. ' Reverting to the arguments of learned counsel for opponent regarding the section 2(h) of ibid law which is reproduced as under:- "Premises" means a building or land, let out on rent but does not include a hotel, ' Building is defined in case law NLR 1966-UC-546 (correct citation NLR 1986 U.C. 4461 as under:- ' Concept of "Hotel" by itself is not executed [excluded] from the definition of "Building".

44. ' It is only a room in a hotel, which is excluded from the jurisdiction of rent Controller.

45. ' Concept of 'hotel' ordinarily imports the idea of providing accommodation to travelers and guests Establishment which only offers refreshment, would therefore, ordinarily not means a hotel as it will be contrary to the intention of the Ordinance to extend the meaning of the word 'hotel' to include a place where only refreshments are offered for sale Shorter Oxford English Dictionary, Black's Law Dictionary, 5th Edition, Stroud's Judicial Dictionary, Third Edition, PLD 1987 Karachi 273, 1983 CLC 723, Ref- PLD 1989 SC 294.

46. ' Moreover from the entire evidence of opponent and documentary proof opponent has filed to prove that previous landlord Mir Khalilur Rehman was rented out case premises for the business of hotel. In the light of above discussion, I am of the humble view that the present rent application is maintainable at Sindh Rented Premises Ordinance, 1979, hence the point is answered as not proved."

47. Findings of the Appellate Court: "19. He has further contended that since the Rent Controller has no jurisdiction to pass the impugned order about the demise premises being hotel and the same were void order and no limitation period is described for filing the appeal against void order. In this regard, he has placed reliance on PLD 2011 Supreme Court 514 Re-Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others 2001 YLR 1738 (Lahore) Re-Nawabzada Sadaqat Ali Khan through Attorney Sulman Mujtaba Khan and 4 others v. Senior Member, Federal Land Commission, Islamabad and 2 others, 2001 MLD-690 (Lahore) Re-Board of Intermediate and Secondary Educatin, Lahore through Secretary and 2 others v. Farruich Niansha and 3 others and 2001 MLD-1101 (Karachi) Re. Wajahat Hussain v. Aftab Ahmed and others,

20. The learned Counsel for the respondent has contended that the lower Court has considered the above point while deciding point No,1 and has held that the appellant failed to prove that previous landlord Mir Khalilur Rehman rented out the premises for the business of hotel. He has further contended that the respondent has produced the rent agreement as well as registered lease deeds since 1974 to 1986 as well as notices under section 18 of Sindh Rented Premises Ordinance, 1979 and has contended that the registered lease deed in respect of the demise premises clearly mentioned the same being leased out on rent for business/residential purpose only nothing else and no document in rebuttal has been produced by the appellant in order to show that the premises being hotel was let out on rent. He has further contended that the opponent/appellant examined Amin Muhammad Sub-Attorney of the opponent, who during his cross-examination has admitted that photo copies of original lease deed executed between appellant Mir Khalilur Rehman and opponent Wali Bhai are lying with Wali Bhai, but they failed to produce the said document whereas the opponent in his written objection has clearly denied the lease deed produced by the respondent therefore, burden lies upon the appellant to establish that the lease deed executed between the parties even though Photostat copies would have been produced in order to rebut the original lease deed, therefore, the appellant failed to establish the demised premises was a hotel at the time when it was let on rent to the appellant/opponent. in this regard, he has relied upon PLD 1973 SC 218, 1984 CLC 997 and 2003 SCMR 722.

48. It is observed that the appellant in his written objections and through his sub-attorney examined before Rent Controller has denied the agreement of lease as well as registered lease deed allegedly executed between original landlord Mir Khalilur Rehman and the opponent and has alleged that the signatures of the opponent on above alleged lease deed are forged. It is pertinent to mention that the opponent in his written objections at para-13 in reply to additional para-1 has mentioned that the Rent Controller is required to send the lease agreement/lease deed to the hand writing expert for verification and so also prayed for production of original agreement of lease as per opponent/appellant are those which are lying with Mir Khalilur Rehman and photo copies of the same are lying with opponent Wali Bhai as deposed by Sub-Attorney of appellant Wali Bhai during his cross-examination as under:- "It is correct to suggest that original documents according to me lease deed executed in between Mir Khalilur Rehman and Wali Bhai have not been produced by me. Original documents of lease deed are lying with Mir Khalilur Rehman, while photo copies are lying with Wali Bhai."

49. To consider the above evidence of the attorney of the appellant and to consider the fact about appellant himself did not appear for giving evidence or not moving any application before the Rent Controller to challenge his signature over the above lease agreement/lease deed and so also by not producing even Photostat copies admittedly available with the opponent vide which the demised premises were leased out/rented out to him, shifts the burden upon the appellant to rebut the lease agreement. Until and unless it was not brought on record to challenge the said lease deed/agreement, which are registered document, the defence plea raised in written objections, has got no evidentiary value until and unless such document is not produced and challenged properly. Learned Counsel for the appellant has failed to give any explanation for not producing the opponent and moving application for comparison of signature over the lease deed denied by the opponent and so also not producing Photostat copies of lease deed/rent agreements admittedly available with appellant/opponent, therefore, the lease deed/lease agreement produced by the appellant in evidence has gone un-challenged and un-rebutted and the contents of the same that the demised premises was let out on rent for the purpose of business/residential purpose is to be believed.

50. It is not pleaded by the appellant that prior to his induction as tenant, hotel was running in the premises, but admittedly structure was delivered to him and the documents regarding lease agreement does not mention the fact about hotel, hence the appellant was bound to adduce his evidence to rebut the above documentary evidence.

51. The sub-attorney of the opponent during his cross-examination has also admitted that the letter dated 28.5.1986 allegedly written by Mir Khalilur Rehman mentioned the word 'building' for which, he approved alteration or addition in the construction. It is further observed that the learned counsel for the opponent during cross-examination of the applicant has suggested that the nature of business, for which, the demised premises was let out on rent is not mentioned in the lease agreement and he also suggested that Mir Khalilur Rehman rented out the premises to the opponent with structure and after that the opponent raised some construction and finishing the structure whereas the suggestion put that the rented premises was let out on rent with an intention to run hotel namely Al-Khalil Hotel which was decided but as per above suggestion put by the learned Counsel for the applicant, the Photostat copies of rent agreement/lease deed if available with the opponent does not mention the word hotel. If the same would have been mentioned, the suggestion put by the learned Counsel for the applicant could not have been put about intention. Since, the demised premises was leased out by executing lease agreement/lease deed, hence the demise premises was not the hotel at the time when the same was let out on rent and it appears that the demised premises was later on converted into hotel, for which, no permission was obtained and the above act on behalf of the appellant was unilateral for using the property for particular purpose after when it was let out on rent by the respondent, therefore, the provision of Sindh Rented Premises Ordinance, 1979 is attracted in above matter and the subsequent conversion of the premises into hotel could not debar the appellant for seeking ejectment and in this regard, learned counsel for the respondent has rightly relied upon 2003 SCMR 222.

52. Accordingly, in view of above discussion, the above quoted authority relied upon by the learned counsel for the appellant are not relevant in above case in hand, as such, the Rent Controller has got jurisdiction to proceed with the above ejectment application and the impugned order passed by learned Rent Controller is valid and within jurisdiction.

53. Consequently, Point No,2 is answered in negative."

54. ' A careful reading of above reproduced reasons recorded by the two Courts below on the question of maintainability of the rent case before the Rent Controller qua respondents claim of running hotel business in it go a long way to show that these findings of fact were recorded with full application of mind, the legal position on the subject visualized by the apex Court in its cited judgments and upon proper appraisal of evidence adduced by the parties, which conclusively proved that at no point of time rented premises were ever let out to the respondent as hotel.

55. Learned ASC for the appellant in his arguments made detailed reference of various lease agreements executed between the parties during the period 18.6.1974 to 01.6.1986, to show that in all these lease agreements executed between the parties, there is no reference of any "hotel" or "hotel business" being let out by the appellant, as alleged by the respondent with ulterior motive in an effort to oust the jurisdiction of the Rent Controller in the proceedings before him, least realizing that a decade before the filing of rent case by the appellant, the respondent had himself submitted to the jurisdiction of the Rent Controller by filing an application for deposit of rent under section 10 of the Ordinance of 1979, being Rent Case No,476/2000, disclosing therein in clear words about the existence of relationship of landlord and tenant between the parties within the meaning of Ordinance of 1979, with further averments that after refusal of purported money-orders in the months of October and November, 2000, dispatched through postal receipts Nos.804 and 805 dated 14.11.2000, he initially deposited the rent for the months of October to December, 2000 with the Rent Controller, and since then continuously depositing rent in the office of Rent Controller, Hyderabad.

56. Based on the above facts, learned ASC strongly contended that the respondent was estopped from challenging the jurisdiction of the Rent Controller, more so, when he knew well that the rented premises were never let out to him as hotel, which could be seen from the contents of all four lease agreements executed between the parties. He also made reference to the contents of first notice under section 18 given by the appellant on 22.7.2000 to show that in its reply dated 27.9.2000, nowhere respondent had taken the plea that rented premises were let out as hotel or questioned the genuineness of various lease agreements executed between the parties on 18.6.1974, 30.9.1974, 08.12.1976 (registered lease deed) and 1-6-1986, which were produced by the appellant as Exhibit 26, 27, 28 and 29 respectively.

57. Apart from it, learned ASC also read before us sections 2(h) and 3 of the Ordinance of 1979 to show that under section 3, applicability of the Ordinance of 1979 is extended to "all premises" situated in the "urban area" in terms of section 2(k), other then those owned or requisitioned under any law by or on behalf of Federal Government or Provincial Government. Thus, a combined reading of these two provisions of the Ordinance of 1979 would clearly show that even the premises which have been subsequently converted into hotel by the lessee will be governed by the provisions of Ordinance of 1979, excluding only the business dealings of lessee as manager of hotel business with his customers. In support of his submissions, learned ASC placed reliance upon the cases of Noor Muhammad Khan v.

58. Muhammad Ali Khan (PLD 1973 SC 218) and Atta Muhammad and another v. Mir Ahmad and another (2003 SCMR 722). In the first case, a vacant plot with 51/2 shops was let out to the tenant for construction of a cinema house, who built a superstructure on it. It was, therefore, held that attached vacant piece of land also fell within the definition of building, therefore, rent case was maintainable. Further, the term 'eviction' as used in section 13 also empowered the Rent Controller to order removal of the superstructure. In the second case, it was observed that the original purpose for which the property was rented out would be determining factor whether property is covered under the definition of "premises" as provided in section 2 (h) of the Ordinance of 1979. Relevant passage is reproduced as under:- "4. The unilateral act of the tenant, therefore, of using the property for a particular purpose after it was rented out to him by the landlord, is not the determining factor whether the same would fall within the definition of terms premises as given in section 2(h) of the Ordinance whereas it is the purpose for which the property originally was let out which would determine whether the same falls within the definition of premises to attract the provisions of the Ordinance. In this case, admittedly, the property which was let out to the predecessor-in-interest of the respondents was an open plot, therefore, it shall be deemed to be an open plot to attract the provisions of the Sindh Rent Restriction Ordinance, 1979 and definition given in section 2(h) of the Ordinance, as such, the ejectment petition was maintainable and the appellants could not be non-suited on the ground that subsequently, the respondents had converted the use of the premises to a Hotel."

12. Conversely, the learned ASC for the respondent strongly contended that overwhelming documentary evidence has been brought on record by the respondent to show that since the start of tenancy in the year 1974, the rented premises had been used as hotel. Therefore, the Rent Controller had no jurisdiction in the matter as per definition of .premises under section 2(h) (ibid). The learned ASC, however, did not advance any material arguments about some admitted facts of the case that none of the four lease deeds executed between the parties contained any provision/clause that the case premises were being let out to the respondent as a hotel, and the respondent had himself submitted to the jurisdiction of the Rent Controller by filing an application under section 10 of the Ordinance of 1979 for deposit of rent before the Rent Controller so as to pay rent to the appellant; and followed this practice from the year 2000 even during the pendency of ejectment proceedings. In support of his argument that in such circumstances the impugned judgment of the High Court shall hold the field, he placed reliance upon the following cases:- i) Mst. Murad Begum etc v. Muhammad Rafiq etc (PLD 1974 SC 322) ii) Zafar Ali v. Allah Bachayo (PLD 1989 SC 294)

59. Nur Jehan Begum v. Mujtaba Ali Naqvi (1991 SCMR 2300)

60. Zulfiqat and others v. Shahadat Khan (PLD 2007 SC 582) v. Muhammad Nawaz v. Member Judicial Board of Revenue (2014 SCMR 914)

61. ' In the case of Mst. Murad Begum (supra), it was held that it is well settled that a party cannot be permitted to raise an all together new ground of attack or defence by departing from its previous pleadings, especially when the opposite party had no opportunity to adduce evidence in this behalf or to otherwise have an opportunity of meeting the plea during the course of the trial.

62. ' In the case of Zafar Ali (supra); the meaning of "hotel" as referred in section 2(h) of the Ordinance of 1979, was dilated with reference to its definition in various English dictionaries as well as Black's Law Dictionary and it was held that shop let out for being used as providing refreshments as an eating house would not fall under the definition of the word "hotel".

63. ' In the case of Nur Jehan Begum (supra), with reference to Article 114 of the Qanun-e- Shahadat Order, 1984, doctrine of promissory estoppel was discussed and it was held that it was based on principle of equity and justice. therefore, where a representative orally or in writing is made by a party, such party cannot resile from the same. Making of representation and its acceptance being a question of fact, should be established before applying the principles of promissory estoppel, existence whereof, would depend upon the nature of representation and in the manner accepted by the other party.

64. ' In the case of Zulfiqar (supra), it was held that wrong provision of law quoted on memo of petition would not debar Supreme Court from hearing same as appeal, if within time.

65. Further, provisions made in a statute for benefit of an individual neither could be waived nor liable to be pressed to his disadvantage. Additionally, decision of a case could not possibly rest on such plea, which is not raised in the pleadings.

66. ' Lastly, in the case of Muhammad Nawaz (supra), the principle of law reiterated was that averments made in the pleadings do not constitute evidence but the evidence led in their support must be consistent therewith, therefore, anything stated outside the scope of such averments could not be looked into.

13. I have carefully considered the arguments of learned ASCs for both the parties, as summarized above, and minutely perused the appeal record as well as the original Record and Proceedings of Rent Case No,13/2010. As the only moot point involved in this case relates to the interpretation and application of section 2(h) of the Ordinance of 1979 qua maintainability of the rent case, it will be useful to reproduce the same as well as section 3 of the Ordinance having nexus to it, which respectively read as under:- Section 2(h) of the Ordinance of 1979: "premises" means a building or land, let out on rent, but does not include a hotel; Section 3 of the Ordinance of 1979: Notwithstanding anything contained in any law for the time being 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: Government may, by notification, exclude any class of premises, or all premises in any area from operation of all or any of the provisions of this Ordinance.

14. A combined reading of above reproduced provisions of law from the Ordinance of 1979 reveals that by virtue of section 3, all premises other than those owned and requisitioned under any law by or on behalf of the Federal Government or Provincial Government, situated within urban area, for the purpose of relationship of landlord and tenant and other related issues, shall be governed by this Ordinance; this section starts with non obstante clause, excluding the applicability of all other laws in force in this regard. The word "premises" has been defined under section 2(h) to mean a building or land let out on rent, but does not include a "hotel". Further, the definitions of landlord under section 2(t) and tenant under section 2(j) respectively provide that landlord means the owner of the premises and includes a person who is authorized or entitled to receive rent in respect of the premises, while tenants denotes any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes any person, who continues to be in possession or occupation of the premises after the termination of his tenancy as well as heirs of the tenant in possession or occupation of the premises after the death of the tenant. Thus, from the definition of "landlord" and "tenant" read with the pleadings of the parties it is clearly established that between them there is not the slightest dispute as regards the relationship of landlord and tenant.

15. In a situation when there is some ambiguity and it is difficult to understand the true import and meaning of a word, defined in the statue itself, principle of harmonious construction will apply to avoid any mutually destructive or conflicting conclusion. For this purpose, one proper course available will be to read such definition along with definitions of other related words given in the statute on the subject, having nexus to it. If still the ambiguity is not removed, then to take the statute as a whole in order to find a pragmatic and correct meaning, of the definition, which coincides with the spirit of the statute.

67. Applying this principle, when the definition of words "landlord" (section 2(f)), "premises"

68. (section 2(h)); and "tenant" (section 2(j)), are read with section 3 of the Ordinance of 1979, it is clearly-understandable that all premises, other than those excluded in terms of section 3, situated within the urban area, for its applicability, will be governed by the provisions of the Ordinance of 1979, which means that every premises, building or land, let out on rent for the purpose of relationship of landlord and tenant will be governed by the provisions of the Ordinance of 1979, excluding "hotel", which has not been separately defined anywhere in the Ordinance of 1979. Thus, it is further clear that the Ordinance of 1979 regulates tenancy in respect of every building which is not excluded by section 3. The rationale being that a tenancy comes into existence when premises are let out and thereafter such relationship is not contingent or dependent upon its change of use by the tenant. In the Black's Law Dictionary, "hotel" means as under:- "Hotel is a building held out to the public as a place where all transients persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a via defined private group".

69. ' Similarly, as per Stroud's Judicial Dictionary, "hotel" is stated to be "a place where lodging are let and provisions are, to some extent, supplied". In the Hallsbury's Laws of England, regarding the stance of hotel, following discussion has been made:- "A hotel is an establishment held out by proprietor as offering foods, drinks and if so required sleeping accommodations, without special contract, to any traveler presenting himself who appears able and willing to pay a reasonable sum for the service and facilities provided and who is in a fit state to be received."

70. ' Lastly, in the Pakistan Hotel and Restaurants Act, 1976, word "hotel" has been defined as under:- "(g) "hotel" means lodging, or boarding and lodging establishment with a minimum of ten let able bed rooms, provided for tourists on monetary consideration, which conforms to any of the prescribed minimum criteria, but does not include:- a home or hostel which is exclusively or mainly used for the aged or invalid persons or students and is run by or under the control of a charitable or educational institution; or any rest house, hostel or circuit house exclusively meant for visiting Government officials or officials of other organisations, though run on a commercial basis;"

71. ' After looking to these definitions/meanings of word "Hotel", now the question arises as to why the phrase "does not include a hotel" is used in section 2(h) of the Ordinance. Reason being that this phrase is only meant to exclude from the purview of the Ordinance, the dealings between the proprietor/manager of the hotel business and the customer who hires a room in the hotel so that such customer may not take any L undue advantage of the provisions of the Ordinance of 1979 by seeking its applicability. In other words, it does not aim to exclude or cease the relationship of landlord and tenant that is created between the owner of the building and its tenant, which has nothing to do with Hotel business as in the instant case.

16. Now, reverting to the facts of the case, the appellant in his affidavit in evidence has produced written agreements of lease executed between the parties on 18.6.1974, 30.9.1974, 18.12.1976 and 1.6.1986, as Exhibits 26, 27, 28 and 29, which are all original documents and Exhibit 28 is the registered lease deed, but none of these lease agreements speak about any hotel business in the rented premises to give support to the claim of respondent that a Hotel was let out to him. Moreover, in his reply to the first notice, the respondent had not denied execution of any one of these lease agreements, so also in his written reply submitted before the Rent Controller. Interestingly, the original tenant, Wali Bhai, who is stated to be out of Country for a long period did not attend the proceedings of the case even once, so much so that even service of notice on him was made through publication. This aspect of the case though not material for deciding the issue of maintainability of the rent case before the Rent Controller, Hyderabad, but substantiates the plea of the appellant regarding subletting of rented premises in favour of some other persons. Muhammad Ashraf, the attorney of the respondent, who had filed written reply under his signatures also did not bother to enter into the witness box at the stage of evidence to dispute the authenticity of documents Ex.25 to 29, where, one Muhammad Amin son of Noor Ali, claiming himself to be the sub- attorney of Wali Bhai through Attorney Muhammad Ashraf appeared in his place. These are some of the salient features of the case which speak volumes about the conduct of the respondent and his false defence in this case. Thus, the evidence brought on record by the parties, which had conclusively proved that at no point in time the appellant's predecessor ever let out the rented premises to the respondent as hotel, is sufficient to show that the learned single Judge in chambers of the Sindh High Court was misdirected in passing such judgment, least realizing that the rented premises were not a "hotel" within the meaning of section 2(h).

72. Besides, there were concurrent findings of fact recorded by the two Courts below on this point, which were not open to interference by the High Court in exercise of its jurisdiction under Article 199 of the Constitution. More particularly, in the circumstances when the two Courts have based their findings on sound reasons and evidence brought on record by the appellant, as against lame assertion of respondent's sub- attorney. The case law cited by the parties' learned ASCs, as discussed above, leaves no room for doubt to hold that it is the status of the rented premises at the time when it was let out which, for the purpose of maintainability, will determine whether or not, the parties will be governed by the provisions of the Ordinance of 1979 or otherwise.

73. Admittedly, when the rented premises were initially let out by the predecessor of the appellant to the respondent, Wali Bhai, on rent vide first written agreement of lease dated 18.6.1974, it was an incomplete building known as Al-khalil, built over Plot No,F/1165, situated at Qazi Abdul Qayoom Road, Hyderabad, therefore, there was no mention in the first lease agreement regarding, the use of premises, except commercial/residential, but similar was the position when the terms of said agreement were modified after three months vide another agreement of lease dated 03.9.1974. In case the rented premises were let out as hotel, such fact could have been specifically incorporated in these agreements or there could have been some reference of such nature in it, which is not so.

74. The rented premises were once let out for the purpose of business cum residential use, it cannot be assumed that the subsequent change in its use for running hotel business, that too unilaterally by the respondent, will take away the jurisdiction of the Rent Controller in the matter. Thus, from all fours, I am of the considered view that the Rent Controller had jurisdiction in the matter to decide the case as the rented premises were located in the urban area and by virtue of section 3, read with section 2(h), the provisions of the Ordinance of 1979 were duly applicable to the instant case.

19. Besides, it is also interesting to mention here that in response to the notice regarding change of ownership issued by the appellant on 22.7:2000 (Exhibit 30), replied by the respondent on 28.9.2000 .(Exhibit 31), no such plea as regards ouster of jurisdiction of the Rent Controller was ever raised by him. Mere fact that some portion of the rented premises was being used as a hotel or there was inaction on behalf of the appellant in this regard or he did not seek ejectment of the respondent on the ground of change of use of rented premises will not be sufficient to record a conclusion about the ouster of jurisdiction of Rent Controller in favour of respondent. Similarly, even if the appellant has made some correspondence with the respondent making reference of "Palace Hotel" as its address, it will not oust the jurisdiction of the Rent Controller on this account. The submissions of the learned ASC for the appellant about the applicability of principle of estoppel have much force inasmuch as it is an admitted position from the record that about 10 years prior to the institution of ejectment case by the appellant, the respondent had submitted himself to the jurisdiction of the Rent Controller by filing a rent case for deposit of rent with him with the following assertions:- "APPLICATION U/S 10(3) OF THE SINDH RENTED PREMISES ORDINANCE, 1979.

75. ' The above-named applicant respectfully submits as under:- That the late father of the opponent, Mir Khalilur Rehman s/o Mir Abdul Aziz rented out the premises No,F-1165, Qazi Abdul Qayoom Road, Hyderabad, to the applicant at the rate of rent Rs,7000/- per month.

76. That the applicant was regularly depositing monthly rent in the Bank A/C No,2125, as usual as mutually agreed practice.

77. That the applicant received notice of the change of ownership dated 23.9.2000 from the opponent. The applicant before receipt of the said notice, deposited rent up to September, 2000.

78. That the applicant, after receipt of the said notice of change of ownership, remitted rent for the month of October, 2000, through Postal Money Order but the opponent refused to accept the same.

79. That the applicant again remitted monthly rent for the months of October and November 2000 through Postal Money Order but the opponent again refused to accept the same.

80. That the opponent has refused to accept the rent from the applicant tendered to him through postal money orders, on more than one occasion, twice with ulterior motives and mala fide intention to catch hold of the applicant and create a ground of default for ejectment of the applicant. Hence this application.

81. That the cause of action for filing this application accrued to the applicant when the opponent twice refused to accept the monthly rent tendered to him by way of Postal Money Orders and the same is continued day by day till todate.

82. That the case premises is situated within the local limits of Police Station Makki Shah, within the jurisdiction of this Hon'ble Court, hence this Hon'ble Court has jurisdiction to entertain the matter.

83. That the requisite court [fee] is paid herewith.

84. PRAYER ' The applicant humbly prays that this Hon'ble Court will be pleased to allow the applicant to deposit monthly rent with effect from October to December, 2000 at the rate of Rs,7000/- per month, amounting to Rs,21000/- (Rs, Twenty one thousands) and also allow him to continue to deposit future monthly rent at the same rate.

85. Hyderabad.

86. Dated 22.12 .2000. APPLICANT"

87. ' The above reproduction clearly shows that there was no issue of any Hotel business vis-- vis maintainability- of the rent case before the Rent Controller, which was subsequently raked with ulterior motive.

88. Where the principle of estoppel is pressed into service on the basis of some admitted/undisputed facts of the case, a party is bound by his pleadings and conduct.

89. Hence, at any later stage, he cannot turn around to wriggle out from the consequence of such admission and conduct of submitting to the jurisdiction of such authority.

90. As already discussed, admittedly in the year 2000, the Respondent had himself approached the Rent Controller through an application under section 10 of the Ordinance of 1979, which cannot be termed mere mistake as he continued to submit to the jurisdiction of Rent Controller, even during the proceedings of rent case regarding his ejectment by depositing rent with him. The Respondent is, thus, also estopped from his conduct to challenge the jurisdiction of the Rent Controller on the plea that he has been carrying on hotel business in the rented premises, as his hotel business has nothing to do with his status as tenant of the appellant/landlord in respect of rented premises. At the cost of repetition, more so, when admittedly none of the four lease agreements executed between the parties during a span of over one decade, contain slightest reference regarding any hotel business in the rented premises which, to say the least, show that running of hotel business in the rented premises was at best a unilateral decision of lessee, having no nexus to the relationship of landlord and tenant between the Appellant and Respondent as regards the rented premises.

22. The net result of above discussion is that the impugned judgment of the High Court, being result of misreading of evidence and wrong interpretation of the relevant statutory provisions, is set aside and the concurrent findings of the two Courts below i,e, respondents Nos.2 and 3, are restored. However, one month's time is allowed to respondent No,1 to vacate the rented premises and hand over its physical possession to the appellant.

91. Sd.

92. Anwar Zaheer Jamali, C.J.

93. ' FAISAL ARAB, J.--This appeal was heard on 29.11.2005 and judgment was reserved by a Division Bench of this Court comprising of the Hon'ble Chief Justice and Maqbool Baqar, J.

94. Thereafter, Maqbool Baqar, J delivered his opinion, concurring with the impugned judgment of the High Court of Sindh and dismissed the appeal. Learned judge held that since a hotel is being run in the premises in question, the appellant's eviction application filed before the Rent Controller was not maintainable on account of the exclusion of the term 'hotel' from the definition of 'premises' contained in Section 2(h) of the Sindh Rented Premises Ordinance, 1979. The Hon'ble Chief Justice however did not agree with such opinion and recorded his dissenting note, allowing the appeal mainly on the ground that exclusion of hotel from the definition of 'premises' was intended to exclude the operation of the Sindh Rented Premises Ordinance, 1979 on letting of hotel accommodation to its guests. The other reason for allowing the appeal was that as the respondent No,1 had himself deposited rents in the Court of the Rent Controller under the provisions of the Sindh Rented Premises Ordinance, 1979, he by his own conduct was estopped from challenging the jurisdiction of the Rent Controller. In view of the conflicting opinions of the Division Bench of this Court, the matter was referred to me for my opinion as a referee judge under the provisions of the second proviso to Order XI of the Supreme Court Rules, 1980. After due notice, counsel for both the sides were heard by me at Karachi Registry on 25.05.2016.

95. In order to address the issue in question, the scope of section 2(h) of the Sindh Rented Premises Ordinance, 1979 which defines 'premises' needs to be examined under the said provisions, `premises' means a building or land let out on rent but does not include a hotel.

96. The question that arises is whether the premises which a tenant obtains on rent and utilizes it for running his hotel business would stand excluded from the definition of premises or that the exclusion .of 'Hotel' from the definition of 'premises' means that the provisions of the Sindh Rented Premises Ordinance, 1979 shall not be applicable to hotel accommodation that is let temporarily for the lodging of its guests.

97. The very purpose of enacting rent law such as Sindh Rented Premises Ordinance, 1979 is to give protection to tenancy rights that are created in favour of tenants by transferring to them the exclusive possessory rights of the rented premises. Such tenancies are not unilaterally terminable by the landlords. In case a landlord wishes to do so, he is obligated under the law to adopt the mechanism provided under the provisions of the applicable rent law. In contrast to such tenancies, where an accommodation is let out to a guest of a hotel, the same does not create in his favour any kind of interest in the accommodation under his use as he is not given exclusive possession of the accommodation for his enjoyment. He is merely a, licensee. Proprietor of the Hotel or his agent enjoys the right to refuse or deny accommodation to a hotel guest if he does not pay the daily occupancy rate or violates any of the rules of the hotel. This being so, a guest of a hotel can be simply locked out of his room and expelled as he is merely a licensee enjoying no protection under the tenancy law.

98. It is the degree of permanency of the occupancy rights that determines the status of a person whether as a tenant or a licensee. It would be nonsensical to imagine that the hotel management has to first follow the eviction process provided in rent law that governs landlord and tenant relationship. Thus the very nature of hotel business necessitates exclusion of 'hotel' from the application of rent laws. This was the only reason to exclude the term 'hotel' from the definition of premises under Section 2(h) of the Sindh Rented Premises Ordinance, V 1979. One cannot visualize any other reason for such exclusion, which is acknowledgment of the fact that a hotel guest is merely a licensee and not a tenant that enjoys protection under rent law. When rent law excludes any kind of premises from its application, then by doing so it in fact lifts the umbrella of protection that is otherwise enjoyable by a tenant of rented premises. Such exclusion was never intended to below applied to a premise that is obtained by a person on rent in which he subsequently establishes 'hotel' as his business. If exclusion is also applied to such premises then that would amount to treating the person who runs his hotel business in a rented premises to be merely a licensee of the landlord, depriving him the protection of his tenancy rights. Such an interpretation would cause insecurity amongst all operators of hotel business established in rented premises and will contribute towards defeating the purpose of protecting tenancy rights under the rent laws. Section 2(h) of the Sindh Rented Premises Ordinance, 1979 was never intended to achieve such an object.

99. In the present case, the respondent No,1 is not a temporary occupant of the accommodation like a guest of a hotel. It is an admitted position that respondent No,1 under a written agreement of tenancy obtained the premises in question from the predecessor-in-interest of the appellant on monthly rental basis way back in June, 1974 and is enjoying its exclusive occupation for the past 42 years. The respondent No,1 by pleading that the provisions of the Sindh Rented Premises Ordinance, 1979 are not applicable to the premises in question is in fact stating that he is occupying the premises in question as a licensee. This amounts to saying that the appellant as owner can deny him the enjoyment of the premises in question in the same manner in which a proprietor of a hotel can deny to his guests. In the present case, as the respondent No, 1 acquired interest in the rented premises on monthly rental basis in his capacity as tenant, his status cannot be converted from a tenant to that of a guest of a hotel. This being the legal position, the only legal remedy to seek eviction of respondent No,1 that was available to the appellant was to file eviction application under the provisions of Sindh Rented Premises Ordinance, 1979, which path was rightly taken by the appellant in the present case. The whole object of respondent No,1 in interpreting the definition of 'premises' in a different context was nothing but to subject the appellant to another round of litigation with the sole object to gain further time, otherwise no tenant would take the stand that the protection of rent laws should not be made available to him and his status as a tenant be relegated to that of a mere licensee.

100. In view of what has been discussed above, I am of the opinion that the status of respondent No,1 is that of a tenant and he being not a licensee of the premises in question, the Rent Controller rightly exercised jurisdiction in the matter under the provisions of Sindh Rented Premises Ordinance, 1979. I therefore, concur with the conclusion drawn by the Hon'ble Chief Justice in his dissenting note.

101. Sd.

102. Faisal Arab, J ORDER OF THE BENCH: ' By majority of two to one (Justice Maqbool Baqar, disagreeing with the majority view), this appeal is accepted, the impugned judgment is set aside and the concurrent findings of the two Courts below i,e, respondents Nos.2 and 3, are restored. However, one month's time is allowed to respondent No,1 to vacate the rented premises and handover its physical possession to the appellant.

103. Sd.

104. Anwar Zaheer Jamali, CJ Sd.

105. Maqbool Baqar, J Sd.

106. Faisal Arab, J