' This is an appeal against the order, dated 13th March, 1982 passed by the learned Senior Civil Judge and Rent Controller, Karachi in Rent Case No, 3043 of 1976 ordering of the ejectment of the appellants from the rented land on the ground of construction of a mosque on the plot.
' The brief facts leading to the filing of the above appeal are that the rented land in question measuring 362 square yards belonged to two ladies, namely Mst. Maryam Bai wife of Haji Yousf and Mst. Halima Bai wife of Haji Sulleman who by a deed of settlement dated 1st April, 1975 created a Trust, which was registered on or about 1st April 1975 for raising a mosque on the plot and also nominated trustees for that purpose. The respondents in the present appeal are the trustees of the above Trust. It seems that after the execution of the above settlement deed the appellants attorned the Trust as the landlord. It further seems that the respondents applied for no-objection to the Deputy Commissioner concerned which was granted on 13th September, 1975 under letter No, GB/NOC/ 979/75, dated 13th September, 1975 issued from the office of the Deputy Commissioner, South, Karachi. The respondents also obtained the approval of the plan Exh. A/9 under Exh. A/10, dated 29th September, 1975. After that the respondents filed the above application which was resisted by the present appellants. The learned Rent Controller on the basis of the pleadings of the parties framed the following three issues :---
(1) Whether the applicants re quire the suit land in good faith ?
(2) Whether the application is maintainable under the law ?
(3) What should the order be ?
' The respondents examined, one of the trustees namely P. W. Haji Sulleman and Aijaz Ahmed of the Sind Building Control Authority in order to prove the approved plan. The appellants did not examine any witness. The learned Rent Controller after hearing the parties allowed the above rent application. The appellants being aggrieved by the above order, dated 13th March, 1982 have filed the present appeal.
2. In support of the above appeal, Mr. Muhammad Ibrahim Memon, learned counsel for the appellants has urged that the construction of a mosque is not covered by the provision of the late West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the late Ordinance) and, therefore, the learned Rent Controller was not justified in granting the ejectment order. He has further contended that the appellants would be deprived of the benefit of section 13 (5-B) of the late Ordinance.
' On the other hand Mr. H. A. Rahmani learned counsel for the respondents has urged that under the late Ordinance the building was defined as any building and that the definition of the building given in section 2 (a) read with section 13 (2) (vi), the building will include a mosque which is intended to be used for religious purpose. He has also referred to the definition of the word "building" given in some of the well known dictionaries.
3. Adverting to the first contention of the learned counsel for the parties, it may be advantageous to refer to the definition of building given in section 2 (a) of the late Ordinance and also in Black's Law Dictionary Fifth Edition page 176, Stroud's Judicial Dictionary Fourth Edition, Vol. I, page 334 and Ballentine's Law Dictionary, Third Edition page 159, which read as follows :- ' Section 2(a)-West Pakistan Urban Rent Restriction Ordinance, 1959.- "Building" means any building or part of a building left 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."
' Black's Law Dictionary, p. 176- "Building. Structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like. A structure or edifice inclosing a space within its walls, and "usually, but not necessarily, covered with a roof."
' Stroud's Judicial Dictionary p. 334- "Building. (1) What is a "building" must always be a question of degree and circumstances : its "ordinary'' and used meaning is, a block of brick or stone work covered in by a roof." (per Esher M. R.
Moir v. Williams (1892) 1 Q. B.
264. The ordinary and natural meaning of the word "building" includes the fabric and the ground on which it stand (Victoria City v. Bishop of Vancouver Island 1921 A. C. 384 at p.
390.
' Ballentine's Law Dictianary p. 159- "Building. A structure designed and suitable for habitation or sheltering human beings and animals, sheltering or storing property, or for use and occupation for private and public business, trade or manufacture. 13 Am, I 2d Bldgs 1 ; 13 Am J 2d Gurgl 6 ; in the broad sense, any structure erected and fixed upon or in the soil, composed of different pieces connected together and designed for permanent use in the position in which it is so fixed, provided the purpose of use is that of habitation, trade, manufacture, religion, education, entertainment, or ornament. 20 Am I 2d Coy 194.
Still more broadly defined as any structure with walls and a roof. 29 Are J Rev. Ed Ins.
293.
' In contracts, the term "building" is variable, depending for interpretation upon the purpose and context of the contract. So, an incomplete structure is a "building" within the meaning of an insurance contract. 29 Am J. Rev. End Ins. 293 and a foundation without more is a building within the meaning of a mechanic's lien law, where the failure to complete the building was due to the owner of the premises. 36 Am J 1st Mech L.
42. A wall, or even a fence, is sometimes deemed a building for the purposes of a restrictive covenant. Annos ; 23 A L R 2d 946.
' Of course, the foundation is a part of a building. Davison v. Walla Walla 52 Wash 453, 100 p.
981."
It may be noticed that under the late Ordinance the building has been defined as any building or part of a building let for any purpose, whether being actually used for that purpose or not. Whereas the ordi-4 nary meaning of the word "building" given in the above dictionaries means structure erected and fixed upon or in the soil for the purpose of use for habitation, trade, manufacture, religion, education, entertainment. In my view the definition of the word "building" given in section 2
(a) of the late Ordinance and in the above legal dictionaries has no direct bearing to the present case as the subject-matter of the tenancy was rented land, which has been defined in section 2 ( f ) in the late Ordinance means any land let separately for the purpose of being used principally for business or trade. Admittedly the land in question was let out by the predecessor-in-interest of the Trust to the appellants for the purpose of manufacturing bus bodies and, therefore, was let out for commercial purposes within the purview of the definition of rented land. In this view of the matter, the only question for consideration is, whether the respondents could apply for possession under section 13 of the late Ordinance for the construction of the mosque. The relevant provision of the late Ordinance is section 13 (2) (vi) which entitles a landlord to apply for ejectment of a tenant if he needs the building or rented land reasonably in good faith for the reconstruction or erection of a building and he has obtained a necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated. In the present' case as observed hereinabove the respondents have obtained the approval) of the plan from the competent authority Exhs. A/9 and A/10. Further- more it cannot be denied that since the Trust was created by the old ladies for the construction of a mosque the respondents require the land in question reasonably and in pood faith. Mr. Rahmani learned counsel for the respondents has referred to the case of Muhammad Saeed v. Anjuman Jamian Hanafia (Regd.) Alminar Mosque (1), in which it was held by a learned Single Judge of the Lahore High Court that the case of a mosque for getting possession of a room for setting up a library comprising of books of Islam will be covered by section 13 (3) of the late Ordinance. It will suffice to observe that strictly speaking the above case has no application because section 13 (3) of the late Ordinance relates to residential or non-residential premises and not rented land. The only provision which can be pressed into service in the present case is section 13 (2) (vi).
4. Adverting to the question that by raising a mosque the respondents will be depriving the appellants the benefit of section 13 (5-B), it may be observed that Mr. Rahmani has referred to the case of Barkat Shah v. Azizullah Khan and others (2) and the case of Abdul Bari v. Khadim Hussain (3). In the first case it was held by a Division Bench of the Hon'ble Supreme Court while declining special leave against the judgment of the Peshawar High Court that subsection (5-B) of section 13 of the late Ordinance was not applicable to rented land and was confined
(1) PLD 1982 Lab. 657 (2) PLD 1980 SC 138
(3) PLD 1978 SC 78 ' to rented building. In the second case the landlord obtained ejectment on the ground of reconstruction and personal requirement and under the proposed building intended to convert the nature of use from nonresidential into residential purpose. It was contended by the tenant before the Hon'ble Supreme Court that by doing so the landlord was depriving the tenant the benefit of subsection (5-B) of section 13 but this contention did not find favour with the Hon'ble Supreme Court. The above 1980 Supreme Court case is directly on the point that subsection (5-B) of section 13 of the late Ordinance is not applicable to a rented land the contention of Mr. M. I. Memon is therefore, devoid of any force.
5. Before parting with the above discussion I may observe that before the learned Rent Controller the trustee who had appeared for the respondents, namely, Haji Sulleman bad made a statement that the Trust would be ready and willing to let out one of the shops out of the three shops which are to be constructed around the mosque. 1 inquired from Mr. Rahmani whether the respondents would adhere to the above statement, his reply was in the affirmative. I would, therefore, record the above undertaking of the respondents as a part of this judgment and would observe that the respondents would let out one of the three shops to the appellants at the rent prevalent in the market.
' With the above observation the appeal is dismissed with no order as to costs. However, the appellants are allowed two months time from today for handing over the vacant possession of the above plot to the respondent on the condition that in case the appellants fail to hand over the vacant possession on the expiry of the above period of two months, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellants.