' This is an appeal against the judgment dated 23-2-1981 passed by the learned Senior Civil Judge & Rent Controller VIII, Karachi, in Rent Case o. 2758/78 ordering ejectment of the appellant on the ground of default. He relevant facts leading to the filing of the above appeal are that the respondent filed above rent case for ejectment on the ground of default. It ems that in the written statement, the appellant inter alia, took the plea that he rent application was not maintainable. It further seems that the learned Rent Controller framed a preliminary issue on the question of relationship and by his order dated 18-11-1979 held that the relationship existed. After hat he proceeded with the matter and recorded the finding on the question of default against the present appellant. The appellant aggrieved by the above order has filed the present appeal.
2. (a) In support of the above appeal Mr. Usman, learned counsel for he appellant, has contended that since the subject-matter of the agreement was a saw machine with a piece of land, the provisions of the Rent Restriction Ordinance, 1979 (hereinafter referred to as the Ordinance) were not applicable and hence the learned Rent Controller had no jurisdiction in the matter.
(b) On the other hand, it has been contended by Mr. Ijaz Ahmed, learned ounsel for the respondent, that no specific plea was raised by the appellant s to the applicability of the provisions of the Ordinance and that in any case he provisions of the Ordinance were applicable to the instant case as the same re applicable to all rented premises.
3. It may be pertinent to deal with the objection of Mr. Ijaz Ahmed as to the non-raisins of the above plea specifically. It may be observed that though in the written statement the plea raised by the appellant was not in clear terms and was to the following effect:- "That the application is not maintainable in law as such is liable to be dismissed" ' but from the written arguments on record of the trial Court, it is apparent that this plea was very much convassed by the learned counsel for the appellant before the learned Rent Controller and it was replied to by the learned counsel for the respondent in his written arguments. In this view of the matter the question, as to whether the provisions of the Ordinance were applicable or not were very much before the learned Rent Controller. Even otherwise, on the admitted facts the question of jurisdiction is a matte which can even be agitated at an appellate stage if no investigation of fact I involved. In the instant case, it is an admitted position that a saw machine was let out with a portion of the land upon which it existed, therefore, the above objection of Mr. Ljaz Ahmed, learned counsel for the respondent fails.
4. (a) As regard the merits, it may be observed that Mr. Usman, learned counsel for the appellant has referred to the case of Messrs Rehman Cotton Factory v. Messrs Nichimen Company Ltd., Ahmed Aziz Zia v. Mohammad Siddique and another and Ghulam Hussain v. Abdur Rehman and 2 others, On the other hand Mr. Ljaz Ahmed, has referred, inter alia, to section 3 of the Ordinance and has also contended that the above cases cited by Mr. Sh. Mohammad Usman have no application to the instant case for the reason that the same involved interpretation of the provisions of late W.
P. U. R. R. Ordinance, 1959 (hereinafter referred to as the late Ordinance), and not of the present Ordinance.
(I) Reverting to the case reported in PLD 1976 SC 781, it may be observed that the Hon'ble Supreme Court in the above case held that the provisions of the late Ordinance were not applicable to a ginning factory.
(ii) As regards the case reported in PLD 1982 Lab. 37, it may be stated that a learned Single Judge of the Lahore High Court held that the term nonresidential and residential building given in the late Ordinance do not cover building alongwith machinary installed therein.
(iii) Referring to the case reported in PLD 1982 Lah. 519, it may be mentioned that in the above case also it was held that a factory was not covered by the definition of the building or rented land given in the late Ordinance.
(b) The above cases clearly laid down that under the provisions of the late Ordinance a factory was not covered. The question, therefore, which B requires consideration is, as to whether the Ordinance has made any difference in the definitions as to include a factory within its ambit and to exclude the application of the above cases.
5. (a) In this regard, it may be pertinent to quote hereinbelow section 2(a) (d) (f) (g) & (h) of the late Ordinance, and section 2(a) (e) and (h) of the Ordinance, which read as follows:
(i) See 2(a) "building" means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let therewith but does not include a room in a "Sarai", hotel, hostel or boarding house
(d) "non-residential building" means a building being used solely for the purpose of business or trade ;
(f) "rented land" means any land let separately for the purpose of being used principally for business or trade ; (g)"residential building" means any building which is not a nonresidential building ; (h)"scheduled building" means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule to this Ordinance, partly for his business and partly for his residence;"
(ii) Ordinance, S. 2(a) "building" means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garage, outhouse and open space attached or appurtenant thereto;
(e) "land" means land or open space, not being agricultural land or land or open space attached or appurtenant to any building;1 2 3
(h) "premises" means a building or land, let out on rent, but does not include a hotel;"
(b) It may be noticed that under the late Ordinance building was defined as to mean any building or part of building let out for any purpose excluding a room in a Sarai, hotel, hostel or boarding house.
' Whereas a non-residential building was defined as to mean a building being used solely for purposes of business or trade. Futhermore, the definition of the term "residential building" included all buildings excluding non-residential building. Moreover, the term rented land was defined as to mean land let out separately for the purpose of being used principally for business or trade.
' On the other hand building in the Ordinance has been defined as to mean any building or part thereof together with all fittings and fixtures if any including any garden, garrage, outhouse and open space attached and appurtenant thereto. Whereas the land has been defined as open space not being agricultural land or space attached or appurtenant to any building. Furthermore, the term premises has been defined as to mean a building or land let out on rent excluding a hotel.
(c) A comparison of the definitions of the relevant terms given in the late Ordinance and the Ordinance indicates that the above-cited cases cannot be distinguished on the ground that the same were given under the late Ordinance. The definitions of the above terms given in the late Ordinance particularly, of the building and of non-residential building, were couched in such words, as to give wider connotation, but in spite of that the Hon'ble Supreme Court has held in above- cited case of 1976 that a ginning factory was not covered by the above definitions. In this view of the matter the above Supreme Court case cannot be ignored on the ground urged by Mr. Ijaz Ahmed. In my view it is applicable to the instant case on all fours.
6. Reverting to the other contention of Mr. Ijaz Ahmed namely, that section 3 of the Ordinance makes applicable all the provisions of the Ordinance to all premises other than those owned or requisitioned under any law by or on behalf of the Federal or Provincial Government and, therefore, since the saw machine with a portion of land can be said to be premises, the provisions of the Ordinance are applicable, it may be stated that in order to appreciate the above Ordinance, it may be advantageous to reproduce section 3 of the Ordinance, which reads as follows: "Section 3. Applicability.-(1) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisition 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 : ' Provided that nothing contained in sections 8 and 9 shall apply to building for a period of ten years immediately after it has been wholly built or rebuilt and has become ready for occupation.
(2) 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."
7. It is true that in the above section, the provisions of the Ordinance have been made applicable to all premises other than which have been expressly excluded in the section, namely, those owned or requisitioned under any law by or on behalf of the Federal or Provincial Government within an urban area. However, this argument overlooks the fact that the term premises has been defined in section 2(h) of the Ordinance quoted hereinabove which provides that premises means a building or land let out on rent but does not include a hotel. The words building and land have also been defined in section 2(a) and (e) of the Ordinance and, therefore, the definitions given of the above two words in the Ordinance are to be read with the definition of premises given in section 2(h). The definitions of the three terms, namely, building, land and premises given in the Ordinance do C not permit the inclusion of a factory of the nature in question.
8. It was also contended by Mr. Ijaz Ahmed, that in the preamble of the late Ordinance, it was specifically stated that the provisions were applicable to certain premises, whereas in the present Ordinance no such qualification is provided in the preamble and, therefore, the Ordinance is wider in its scope as compared to the late Ordinance. It will suffice to observe that a preamble cannot control/regulate the main provisions of an enactment. A preamble can be looked into in case of ambiguity, but it cannot curtail or regulate the definitions of the various terms given in the Ordinance. Since I have held that the definitions of the terms building, land, and premises given in the present Ordinance do not cover a factory, the mere fact that in the preamble of the present Ordinance the words "certain premises" have been omitted would not enlarge the definitions of the above terms and would not make Ordinance applicable.
9. For the aforesaid reasons the appeal is allowed with no order as to costs. PLD 1976 SC 781 PLD 1982 Lah. 37 PLD 1982 Lah. 519