A property which has been described in detail in paragraph 1 of the ejectment petition is owned by Muhammad Sharif, respondent, who has since died and is represented by Muhammad Yousuf etc., his legal heirs. The said respondent rented out the aforementioned property to Muhammad Sharif, petitioner in March, 1979. The rate of rent is disputed, as accor--ding to the respondent, it is Rs. 1,000 per mensem while according to the petitioner it is Rs. 580 p. m. A sum of Rs. 7,000 was admittedly received on account of advance rent by the respondent from the petitioner.
2. In June, 1980, the respondent filed an application before the Rent Controller, Sialkot i.e. Respondent No. 2, seeking ejectment of the petitioner from the premises in question on the pleas of; (1) default in the payment of rent ; (2) bona fide personal and of the respondent for his sons ; and (3) causing of damage to the property resulting in impairing of its value.
3. The petitioner through his written statement filed before the Rent Controller controverted the allegations of the respondent and pleaded inter alia that the premises in question were factory and therefore, the Rent Controller had no jurisdiction in the matter. He, of course, contended that there has been no default in the payment of rent; the property was not needed by the respondent for his personal use; and that the value of the property has not been impaired in any manner.
4. The learned Rent Controller by his order dated 1-10-1980 directed the petitioner to deposit the arrears of rent from October, 1979 to Septem--ber, 1980 at the rate of Rs. 1,000 p. m. Before the next date of hearing. He also directed that the future monthly rent be also paid in Court at the aforesaid rate before the fifteenth of every succeeding month. It is, however, noteworthy that in the order dated 1-10-1980 the learned Rent Controller observed that if the rent for the period from October, 1979 to September, 1980 had already been deposited or paid the petitioner (tenant should produce the proof in regard to the same in the shape of receipts). The case was adjourned for framing of issues and for producing of proof regarding the deposit of rent to 13-11-1980.
5. The aforementioned order dated 1-10-1980 of the learned Rent Controller has been impugned through the present writ petition. It has been urged that the provisions of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, could only be attracted if the learned Rent Controller could competently proceed with the eject--ment petition. It is alleged in the writ petition that the premises in question being factory /industrial concern no ejectment petition under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, was com.
Patent, and therefore, it was incumbent upon the Rent Controller to first determine .As to whether he had jurisdiction in the matter before, straight--away, making an order about the deposit of arrears of rent under sub--section (6) of section 13 of the Ordinance. In this manner it is alleged in the present writ petition that the order dated 1-10-1980 passed by the Rent Controller whereby he directed the petitioner to deposit the arrears of rent is without lawful authority.
6. Learned counsel for the parties have been (heard at length in this matter. In Akhtar Ali Parvez v.
Altafur Rehman's (PLD 1963 (W. P.) Lah. 390) it has been held that deposit of arrears of rent by the tenant may not be ordered where tenant objects to jurisdiction of Rent Controller. Question of jurisdiction should be decided first. In Messrs Behman Cotton Factory v. Messrs Nichimen Co. Ltd., Karachi (PLD 1970 Lah. 455) it was found that the word "building" used in Rent Restriction Laws did not cover factories or industrial concerns and lease of such premises was to be governed by principles of Transfer of Property Act, 1882. In Messrs Rehman's Cotton Factory's case the appeal was decided by the Supreme Court and the judgment has been reported as PLD 1976 SC 781. The Supreme Court has been pleased to find that the Urban Rent Restriction Law did not apply generally to all sorts of properties in urban areas and excluded from its operation factories equip-- ped with machinery requisite for manufacturing process. Lease in such cases is lease for use of machinery and not for all premises simpliciter. Ginning factory leased to appellant equipped with machinery for procee--ding and ginning cotton and in running condition was held to be a lease not merely of a non-residential building. The Rent Restriction Law held not applicable to such property.
7. It is, however, urged on behalf of the respondent that the rented property in this case was merely a building consisting of a veranda and a compound. The machinery installed in it, was sold and not leased it. Reli--ance on behalf of the respondent has been placed on Ghulam Farid and another v.
Mian Farooq Naiir and another (PLD 1979 Lah. 673). In this case the land was leased out principally for business or trade and it was held that if once it is held that setting up a manufacturing plant is not covered by the expressions business or trade, I have no doubt that the petitioners must succeed but I find that setting up a manufacturing plaint is a process of trade or business. It was further observed in this case that the Rent Restriction Law excluded from its operation what were properly known as a factory equipped with machinery requisite for a particular manufacturing process.
8. It is, however, noteworthy that this is purely a question of fact as to whether in the under consideration case the rented property was a factory equipped with machinery or it was .Merely a building rented out for purposes of "business or trade". This issue could be resolved only after recording of evidence. One thing however is clear that the petitioner A in his written statement filed before the Rent Controller specifically raised the plea that the rented building happened to be a factory/industrial, and in respect of such property the Rent Controller had no jurisdiction. In the presence of these objections it was obligatory for the Rent Controller to treat this objection regarding jurisdiction to be preliminary objection and to resolve it first before taking any further action including an order with regard to deposit of arrears of rent.
9. In this view of the matter I find that the impugned order is unlaw--ful. The writ petition, therefore, succeeds and consequently it is declared that the impugned order of the Rent Controller dated 1- 10-1980 has been passed without lawful authority and is of no legal effect. The Rent Controller is directed to first treat the objection regarding jurisdiction as a preliminary objection and he should resolve it first before taking any further action in the matter. No order is, however, made as to costs.