1. ' This is a Civil Revision Application filed by the applicants, M/s. Gilani Timber Mart from the judgment of IV Additional District Judge, Karachi (Mr. Syed Fazal Hussain Shah) dated 30-11-1982 in Civil Appeal No.358 of 1977, whereby the learned Additional District Judge set aside the judgment of the XIth Civil Judge, Karachi dated 10-11-1977, decreeing the Suit No.1166 of 1975.
2. ' After hearing Messrs N.A.Farooqui and Abdul Sattar for the applicant and Mr. Khuda Bux Umrani for the respondents, the Revision Application was accepted with no order as to costs, by a short order dated 5-12-1984 for reasons to be recorded separately. Following are the reasons in support of the short order.
3. ' Briefly stated the facts of the case are that the applicants are the owners of the Kassam Moosa Saw Mills with an electric motor (15 H.P) and Band Saw Machine 42" in diameter, installed on Plot No.7, Lea 8, Bandukwala Road, Lyari Quarters, Karachi. The said saw Mills was let out in running condition to one Wall Muhammad son of Haji Abdul Karim on monthly rent of Rs. 700 in accordance with the written agreement. In June 1966, the respondents, Fateh Timber Mart obtained the above running Saw Mills from the said Wali Muhammad with permission of the applicants on the same terms and conditions on which Wali Muhammad had hired the same. The respondents continued to pay the hire charges regularly until 14-4-1975 when the applicants by their notice given to the respondents terminated the hire-contract and called upon the latter to hand over the possession of the Saw Mills by the specified date. On the respondent's failure to deliver the possession of the said Mills by the target date the applicants filed suit for possession and mesne profits.
4. ' The suit was vigorously contested by the respondents who denied the applicant's claim of ownership of the Saw Mills. It was also denied by them that they had taken over the possession of Mills from Wali Muhammad on the same terms and conditions on which the latter had hired the same from the applicants. The plea taken by the respondents was that they are tenants of the plaintiffs/applicants having rented out the non-residential premises whereupon the Saw Mills also existed at the monthly rent of Rs.
700. According to them they paid the rent regularly for which they are in possession of the rent receipts issued by the plaintiffs. Despite this, the respondents further averred, the applicants/plaintiffs by their notice 14-4-1975 terminated the alleged hire-contract calling upon them to deliver back the vacant possession of the disputed premises. There after the respondents remitted the rent to the plaintiffs by money order. As the same was refused by the plaintiffs the respondents after obtaining permission from the XlVth Civil Judge and Rent Controller, Karachi in Miscellaneous Rent Case No. 2884 of 1975, started depositing the rent in the said Court. It was further pleaded by the respondents that the suit was not maintainable as it was barred by the West Pakistan Urban Rent Restriction Ordinance.
5. ' As many as ten issues were framed by the trial Court who after taking into consideration the evidence led by both the parties decreed the suit. As stated above the appeal preferred from the judgment of the trial Court was allowed and hence this revision application has been filed against the judgment of the lower appellate Court.
6. ' It appears from the judgment of the lower appellate Court that the learned counsel for the parties agreed with the said Court that the only controversy which needed to be resolved was whether the premises in dispute were let out as an industrial concern or as a non-residential premises and whether the defendants were tenants within the meaning of the West Pakistan Urban Rent Restriction Ordinance, 1959 and, therefore, the case between the parties was governed by the said Ordinance. On consideration of the material available on record and the arguments addressed at the bar the learned appellate Judge observed: "There is absolutely no evidence to show that the premises in question are an industrial concern."
7. ' He, therefore, came to the conclusion: "The premises in question were given to the appellants as non residential premises where they are carrying on their own private business of Timber Mart under their own name and style of M/s. Fateh Timber Mart on the payment of monthly rent of Rs.
8. 700."
9. ' It was vehemently urged by the learned counsel for the plaintiffs that the above findings of the learned lower appellate Court were based on misappreciation and misreading of the evidence and were not in accordance with law laid down by the superior courts. He submitted that the relations between the parties not being in the nature of relations of landlord-tenant within the meaning of West Pakistan Urban Rent Restriction Ordinance, 1959, the learned appellate Judge erred in holding that their relations were governed by the said Ordinance. According to the learned counsel the appropriate law applicable in the case was the Transfer of Property Act.
10. The plea taken by the defendants in para 5(a) of the written statement is as follows: "That the defendant firm is the tenant of the plaintiffs in respect of non-residential premises situated on Plot No.7, Lea 8, Bandukwala Road, Timber Market, Old HO Camp Road, Karachi, formerly known as Kassam Moosa Saw Mills wherein a Saw Mill machine also exists, at the rental of Rs. 700 (Rupees seven hundred) per month, and wherein the defendant firm ever since coming into possession as the tenant of the plaintiff about nine years back, is carrying on timber and saw mill business in its own name viz. M/s. Fateh Timber, Mart."
11. ' In view of the above admission on the part of the defendants that they are tenants of the plaintiffs in respect of the disputed premises, there is no difficulty in holding that the defendant firm was put in possession of disputed property by or with consent of the plaintiffs. However the argument of the learned counsel for the defendants was that the premises in dispute were let out to the defendants not as industrial concern but as non-residential premises. Elaborating his argument he submitted that since there was no formal agreement between the parties, the learned appellate Judge was right in holding that "In absence of any written agreement between the parties we have to determine the nature of premises and the relationship between the parties from the material evidence placed on record only. There is absolutely no evidence to show that the premises in question are an industrial concern." The above argument that the premises were let out as non - residential premises would not be without force if it was proved that only vacant premises without any machinery installed there on had been hired by the defendants. The plaintiff's case is that not only the premises in question but also the Saw Mills operating on the said premises was given to the defendants on monthly rental of Rs.
700. This is confirmed from the defendant's own admission referred to above. It is admitted by defendants in their written statement to the effect: "wherein saw mill machine also exists." Thus if the disputed premises alongwith the Saw Mill installed thereon was let out to the defendants, it was obvious that the hiring of the premises also included the Saw Mill operating thereon. The question arises if under the Rent Restriction Ordinance anything else apart from the premises which includes land and building can be rented out. In other words whether the definitions of the premises covered even the machinery installed thereon. Since the answer to this question is in negative, it would not be possible to hold that the relations between the parties in respect of the Saw-Mills are governed by the Rent Restriction Ordinance.
12. ' The plaintiff's case as unfolded in the plaint is that the Saw-Mills in question was first given on hire to Wail Muhammad son of Haji Abdul Karim as per written agreement and it was from the said Wali Muhammad that the defendants obtained the possession of the said Industry on the same terms and conditions, with the permission of the plaintiffs.
13. ' In support of their case, Haji Moosa (Exh.P/1) a partner of the plaintiff's firm has been examined.
14. According to this witness he is the original owner of the Saw-Mills in question which, he has added, was installed for the benefit of his daughter, Mst. Khair-un-Nisa. He has also produced a number of documents Exh.P/2 to Exh.P/15 to prove that in respect of the same Machine, he had not only applied for electric connection but had also paid insurance premia. He has also produced a copy of the agreement dated 1-1-1965 concluded between his daughter Mst. Khair-un-Nisa and Wali Muhammad. All these documents clearly support the plaintiff's case. Besides these documents, many other documents have also been produced by him with the same purpose in view namely to prove that he is the owner of the premises in dispute and the Saw Mills operating thereon and that the defendants had obtained the possession of the premises as well as the Mills with his consent.
15. On the other hand the perusal of the written statement would show that the case put forth by the defendants is self-contradic tory. On one hand it is denied by them that the premises and the Mills thereon are the property of the plaintiffs and on the other hand the defendants have admitted in an unambiguous language that they are the tenants of the plaintiffs in respect of the disputed premises whereupon the Saw-Mill also exists, at the rental of Rs.700 per month. The defendant's admission clearly supports the plaintiff's case at least to the extent that they have been put into possession of the premises and the Saw-Mill, by the plaintiffs or with their consent and further that they have been paying the monthly rent to the plaintiff @ Rs.700. However the defendants have denied that the plaintiffs are the owners of the premises and Saw-Mill installed thereon. The question arises if, after it was established that defendants were put in possession of the disputed property by or with consent of the plaintiffs and have been holding the possession of the said property as tenants of the plaintiffs, they can deny the title of the plaintiffs in respect of the said property. As provided in section 116, Evidence Act; they are estopped from denying that the plaintiff had title to such property at the commencement of the tenancy. Even otherwise it is not shown by the defendants by evidence that if plaintiffs are not the owners of the disputed property, who else is the owner of said property. Thus it is proved not only from the evidence produced by the plaintiffs but also from the defendant's own admission that the disputed premises alongwith Saw-Mill installed thereon are owned by the plaintiffs and were let out to the defendants at monthly rental of Rs.700 with the consent of the plaintiffs.
16. ' In view of the above factual position it was submitted on behalf of the plaintiffs that the relations between the parties are governed not by West Pakistan Rent Restriction Ordinance but by the Transfer of Property Act. In support of this view the learned counsel placed reliance on the following authorities:
(1) Bashir Ahmed v. Mst. Zubeda Khatoon 1983 CLC 390,
(2) Messrs Saleh Muhammad & Bros. v. Ibrahim and others 1983 CLC 2697.
(3) Messrs International Fisheries (Pakistan) Ltd. and 3 others v. Messrs Standard Fisheries Corporation 1983 CLC 3294,
(4) Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781.
17. ' In the first case of Bashir Ahmed appeal was filed before the High Court from the order of Rent Controller touching on relationship between the parties. It was argued on behalf of the appellant that since the subject-matter of the agreement was a Saw-machine with a piece of land, the Sind Rented Premises Ordinance 1979 was not applicable and hence the Rent Controller had no jurisdiction in the matter. In support of this view reference was made to three authorities: namely, Messrs Rahman Cotton Factory v. Messrs Nichimen Company Ltd. PLD 1976 SC 781, Ahmed Aziz Zia v. Muhammad Siddique and another PLD 1982 Lah. 37 and Ghulam Hussain v. Abdur Rehman and 2 others pw 1982 Lah.
519. It was noted that in all the three cases the Rent Ordinance was held in applicable as apart from rented land/building, either factory or some machinery was involved. Keeping the above authorities in view and after examining the definitions of premises, land and building as given in the said Rent Ordinance, the learned Single Judge of this Court (Ajmal Mian, J.) held that the definitions of 'premises', 'land' and 'building' do not cover factory (Saw Mill).
18. ' In the 'second case of Messrs Saleh Muhammad it was held: "In the instant case the position of Saw-Mill with all its accessories fitted for cutting and chopping of wood is not different from but is rather at par with the Cotton Factory in the reported case.
19. Accordingly the Saw-Mill is not governed by the Rent Ordinance, 1959."
20. ' In the third case of Messrs International Fisheries, it was held: "In the light of the recitals, the conditions of the agreement and the definition of the terms 'building', 'premises' and the scope of the provisions of the Sind Rented Premises Ordinance, the running business undertaking/factory given on contract by the plaintiffs to the defendants can neither be construed as letting-out any 'premises' to the defendants nor the defendants can validly claim themselves to be the tenant and thus claim protection under the said Ordinance."
21. ' In the fourth case of Messrs Rehman Cotton Factory, the Supreme Court was pleased to hold that the provisions of the Urban Rent Restric tion Ordinance, 1959 were not applicable to a ginning factory.
22. ' From the above authorities it can be safely deduced that if any Mill or Factory is let out alongwith a piece of land on which the said Mill or Factory is installed, it will not be a case to be governed by the Rent Restriction Ordinance. In the instant case as has been pointed out above the Saw Mill alongwith the land on which it is set up has been hired at monthly rent of Rs.700. As such the case between the plaintiffs and defendants does not fall within the ambit of the Rent Restriction Ordinance. Accordingly the depositing of the rent in the Court by the defendants will not be of any legal assistance to them.
23. ' The last point to be considered is whether the plaintiffs can terminate the hiring contract between the parties by serving a notice on them. Although the defendants have categorically denied that the terms and conditions on which the Saw Mill was given on hiring contract to Wali Muhammad also apply to the contract between them and the plaintiffs, they have not been able to show that different terms and conditions are applicable in their case. It is the defendants' own case that no written agreement exists between them and the plaintiffs. In absence of any fresh agreement executed by the defendants in favour of the plaintiffs it will only be reasonable to presume that the same terms and conditions as applicable in the case of Wali Muhammad also applied in their case. This presumption is strengthend by the fact that the defendants were not put into possession of the disputed property by the plaintiffs directly but they got the possession through Wali Muhammad. And further they have been paying the monthly rental at the same rate as was payable by Wall Muhammad.
24. ' Para. 4 of the agreement executed by Wali Muhammad is to the following effect.
25. "The lender shall also have right to terminate the contract and require the contractor to leave the premises without paying any compensation, if any, to him."
26. ' In terms of the above stipulation of the plaintiffs were justified in giving notice to the defendants terminating the hiring contract with them. Even otherwise in absence of any specific condition as to cancella tion of the hiring contract, it could be cancelled on 15 days' notice as it was on monthly basis. Accordingly the defendants after service of the notice on them had no option but to return the disputed property to the plaintiffs. Consequently the Revision Application was allowed as stated above.
27. ' Before parting with the case I would like to remark that since the case between the parties was not governed by the Rent Restriction Ordinance, the defendants would be free to apply for refund of the amount they claim to have deposited towards monthly rents in the Court of Rent Controller.