1. SHAFIUR RAHMAN, J.--The petitioner, a tenant, who has been unsuccessful in a civil suit as defendant in protecting its possession over the premises seeks leave to appeal against the judgment of the High Court of Sind, dated 11-12-1984 whereby accepting a civil revision, the judgment and decree of the trial Court was restored.
2. The plaintiff-respondent claimed to be the owner of an industry running under the name of Kasam Moosa Saw Mills having an electric motor of 15 Horse Power and a Band Saw Machine of 42 diameter together with the parts thereof situated on Plot No. 7, Lea 8 Bandukwala Road, Lyari Quarters, Karachi. He had given it out on hire to Wali Muhammad and others and after obtaining the permission of the plaintiff-- respondent, the petitioner obtained it in June, 1966 on the same terms and conditions on which it was, given to Wali Muhammad at a monthly rent of Rs.700. The plaintiff-respondent sought the possession of the property and, for getting the petitioner evicted there from, instituted a civil suit on 21-5-1975. The petitioner pleaded that he had obtained the non- residential premises on rent and was governed by West Pakistan Urban Rent Restriction Ordinance (hereinafter referred to as the Ordinance) and the civil suit did not lie. A number of issues were framed on the pleadings of the parties but the one which is relevant at this stage is Issue No. 10 whether the suit is barred by West Pakistan Urban Rent Restriction Ordinance 1959. The trial Court held that the Saw Mill had been let out and that Saw Mill has always been treated as an Industry and as an Industrial concern and came to the conclusion that: - "The Property in the suit is an industrial concern and it does not come within the scope of section 2 Rent Restriction Ordinance and, therefore, the provisions of the Ordinance are not applicable and in the present case the relationship of parties being of lessor and lessee is governed by the provisions of Transfer of Property Act."
3. Finding the other issues in favour of the plaintiff-respondent, the trial Court decreed the suit on 10- 11-1977.
4. On first appeal the Additional District Judge reversed the findings and dismissed the suit on 13-11- 1982. The appellate Court's order was based on the following findings:- "There is absolutely no evidence to show that the premises in question are an industrial concern.
5. This allegation of the respondents is made on the basis of their assertion that an agreement was executed between one Miss Khairun Nisa and Wali Muhammad Haji Abdul Karim. It may be stated in this respect that in the first instance this was a simple and unregistered agreement between those to parties and therefore even if it is assumed that there was such an agreement then it is not shown how that agreement is relevant to the case of present appellants much less that the terms and conditions laid down therein are binding on the present appellants. Secondly both Miss Khairun Nisa and Wali Muhammad Haji Abdul -Karim were not even cited to give evidence in Court therefore, in the absence of any come to the conclusion that the premises are as alleged."
6. The High Court in revision reversed the decision of the first appellate Court and restored that of trial Court. Hence this petition.
7. The learned counsel for the petitioner contended that what the petitioner had obtained on rent from the plaintiff-respondent was land with structure and a Saw Mill installed thereon. It was the petitioner who was running it in his own name. He had not received it as a running business concern. According to the learned counsel, a Saw Mill does not qualify either as an industry or --is a Factory but must be considered to be a building and a non-residential one under the Urban Rent Restriction Ordinance. He has for that purpose placed reliance on the decision of this Court in Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others PLD 1973 SC 218.
8. On facts, it does not appear to be in dispute that what the petitioner obtained on rent in 1966 was premises having a Saw Milli installed and running. The rent payable by the petitioner was not only for the plot .Of the land or the structures existing on it but also for the Saw Mill installed on it.
9. Besides, immediately before the petitioner obtained it on rent, it was in the possession of Wali Muhammad etc. As tenants and they had been running the business there. Before that, it was the plaintiff owner who had installed the Mill and was running it. The receipt given by the plaintiff to the respondent itself shows that it was running Saw Mill. The receipt at page 90 of the Paper Book translated reads as follows:- "I have given my Saw Mill running by the name of Kasim Moosa Saw Mill to you on Bhara. Towards the Bhara of the said Mill, I have received Rs.2000 today in full and grant this receipt to you."
10. 'Building' has been defined in the ordinance as- " '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, out-houses, together with furniture let therewith but does not include a room in a 'Sarai', hotel, hostel or boarding house".
11. "Rented land" on the other hand has been defined to mean:- "any land let separately for the purpose of being used principally for business or trade".
12. It is not the case of the petitioner that it received on rent the rented land. It is the case of the petitioner that he received on rent a building, which was non-residential in character. If what he obtained did not qualify as a 'building' then the question of its being non-residential will not arise.
13. The definition of building as re-produced above is indicative of the fact that it would not include premises where machine which is being used for an industry or a factory is installed and the same is let out alongwith the land on which it is installed. Whatever doubt could remain on this account on facts stands removed from the receipt given to the petitioner the contents of which were at no earlier stage disputed.
14. None of the decisions referred to are of help to the petitioner. In Noor Muhammad Khan's case five and a half shops alongwith an open plot of land was given on rent. The open plot of land was to be used by the lessee for the purpose of constructing a cinema house which was in fact constructed.
15. It was held that if the plot was taken to be a part of the 51 shops constructed on a portion of it then it was non-residential premises and if it was treated as separate from the shops then it was a rented land. In either case it was property covered by the definition clause of building or rented land as contained in the Ordinance, In the case of Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. (formerly Messrs Japan Cotton and General Trading Co. Ltd. Karachi), PLD 1976 SC 781, a Ginning Factory has been let out and it was held that under the West Pakistan Urban Rent Restriction Act, it was neither a residential building nor a non-residential building or a rented land and stood excluded from the operation of that Act.
16. We fined that no question of law arises in the case such as may require further examination in this Court and leave to appeal is refused.