' This second appeal has been filed against the judgment of IIIrd Additional District Judge, Karachi dated 3rd February, 1982 in Rent Appeal No, 98/1979, whereby he had upheld the judgment of Vth Rent Controller, Karachi, dated 31st January, 1979 in Rent Case No, 994/1977. By the said judgment the learned Rent Controller had allowed the ejectment application of the respondent and directed the appellant to hand over possession of the premises in question to the respondent within one month.
2. The premises in question is a shed on Plot No, W/5-23, Block-2, Federal B Area, Karachi. It was let out to the appellant @ Rs, 1,100 per month. The respondent filed ejectment application before the Rent Controller on the ground that he and his brother wanted to run their own business in the premises in question. After recording evidence of the parties learned Rent Controller came to the findings that the respondent required the premises in question for their bona fide requirements, This finding was confirmed by the first appellate Court as stated above.
3. Mr. S. H. Rizvi has challenged the orders of the Courts below on one ground only namely, that the premises in question, being a factory, was not covered by the word 'premises' or 'building' as defined in the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the said Ordinance) and consequently the Rent Controller had no jurisdiction to entertain the ejectment application. It may be stated at the outset that the appellants have not raised this objection before the learned Rent Controller. For the first time he raised this objection before the first appellate Court. The learned appellate Court rejected this plea and held that only the plot and the structure thereon were let out to the appellants in which the latter was running silk factory and as such the jurisdiction of the Rent Controller was not ousted. So far as the bona fide requirement of the respondent for the premises is concerned, this was not disputed before this Court.
4. It is now to be seen whether the premises let out to the appellants was a factory or a building as defined by the said Ordinance. As the building was rented out in the year 1970, hence the definition of `building' as given in the said Ordinance shall be applicable to the case. The respondent's case is that the premises were let out without any silk-looms to the appellants vide a rent-deed dated 10th February, 1970, which was renewed on 25th March, 1)72. The two rent agreements have been filed as annexures with the rent applications. In para. 1 of the written statement the appellants had admitted these two lease agreements. Both these documents contain the details of the accessories which were rented out to the appellants alongwith the premises. There are schedules attached to both the agreements in which these accessories have been mentioned. But there is no mention of any silk-loom having been let out to the appellants. These documents, which have not been denied by the appellants, categorically prove that on the plot and the shed alongwith some fixtures as mentioned in the schedules, were let out to the appellants. If the appellants fixed their own looms in the premises and started running a factory, it will not take out the premises from the purview of the said Ordinance or the Rented Premises Ordinance of 1979. Had the respondent let out the premises alongwith the silk-looms, then it could have been argued that the premises were a factory and were not covered by the word 'building' or 'premises' as used by the said Ordinance.
5. Learned counsel for the appellant has laid much emphasis on the deposition of the respondent wherein he has said that he has let out his `factory' to the appellants. This statement of the respondent is to be considered in the context of the two lease-agreement which have been referred to above and which have not been disputed by the appellants in their written statement.
Hence the fact that the respondent had used the word `factory' in his deposition to describe the nature of the premises, will not amount to change the terms and conditions of the two lease agreements, none of which has mentioned the building as a factory. Reliance in this connection has been placed by Mr. Ishtiaq Ali learned counsel for the respondent on the case of Noor Muhammad Khan v. Haji Muhammad Ali Khan (1). In this case a piece of land, alongwith five and half shops,
(1) PLD 1973 SC 218 ' was leased out to S for the construction of a cinema house at the lessee's own expenses. The lease was for a period of 20 years. After expiry of 20 years the owner filed a civil suit for possession by ejectment. The High Court held that the Civil Court had no jurisdiction in the matter and that the dispute between the parties was exclusively triable by the Rent Controller. In appeal before the Supreme Court it was urged that the lease of vacant land was not covered by the Ordinance of 1959. The Supreme Court held that the term 'building' used in the West Pakistan Urban Rent Restriction Ordinance is very wide and includes any land let therewith. The lease of the vacant piece of land was, therefore, a building which fell within the definition of 'building'. It was further held that even if the lease could be taken to be of two properties, namely, a vacant piece of land and 5(1/2) shops ; vacant piece of land fell within the definition of rented land. The vacant piece of land was let out for constructing a cinema house and for carrying on cinema business. Thus, the land in dispute was let out for the purpose of being used principally for business or trade and, therefore, fell within the definition of building.
6. Learned counsel for the appellants has relied on the case of Messrs Rahman Cotton Factory v.
Messrs Nichimen Company Ltd. (1) in which it has been held that a factory is not covered by the term 'building' as defined by the said Ordinance and as such jurisdiction of Rent Controller is barred from entertaining an ejectment application in respect of such factory. This case is not applicable because no factory was let out to the appellants. According to the lease agreement only a shell was let out alongwith some fixtures without any machinery or looms. The appellants cannot wriggle of the two lease-agreements which were admittedly executed by them in favour of the respondent, according to which they had taken on rent only a plot and a shed alongwith some fixtures. Thereafter they had installed some looms for running silk factory. The subsequent conduct of the appellants will not convert the nature of the building or premises so as to exclude them from the purview of the said Ordinance. The definition of the 'building' for the purpose of applicability of the said Ordinance would be that which applied to the premises at the time when it was rented out by the landlord. The subsequent conversion of the building for a different purpose would not alter the nature of the premises as it originally stood, so as to exclude the same from the purview of the said Ordinance.
' I have, therefore, no reason to take exception to the findings of the two Courts below. The appeal is consequently dismissed with costs. The appellant is, however, given two months time to vacate the premises.
(1) PLD 1976 SC 781