' AJMAL MIAN, J.--This petition is directed against the order dated 21-4-1983 passed by the learned 1st Senior Civil Judge and Rent Controller, Hyderabad, in Rent Application No. 322 of 1981 overruling the petitioner's objection that the learned Rent Controller had no jurisdiction in the matter.
2. The brief facts leading to the filing of the above writ petition are that respondent No. 2 under a lease-deed, dated 1-9-1977 granted lease of a running concern namely, Shams Cinema Hyderabad, which included the hall of the Cinema and other structure appertaining to the same, furniture, equipments for running the cinema, licence for running the cinema etc. Respondent No. 3 as the co-sharer of the above cinema filed aforesaid rent case for ejectment on the ground of personal requirement and causing damage to the property. The petitioner filed the written statement but subsequently filed an application for amending the written statement for raising the plea that the subject-matter of the lease-deed being a running concern was not covered by the definition of the building given in the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). The above objection has been overruled by the learned Rent Controller by the impugned order. The petitioner being aggrieved by the above order has filed the present petition.
3. (a) In support of the above petition Mr. S.H. Rizvi learned counsel for the petitioner has referred to the relevant clauses of the lease-deed and also the definition of "building" in clause (a) of section 2 of the Ordinance and has contended that subject-matter of the lease-deed is not covered by the definition of the 'building' given in the Ordinance. In furthernace of his above submission, he has referred to the case of Bashir Ahmad v. Mst. Zubeda Khatoon reported in 1983 CLC 390, in which one of us (Mr. Justice Ajmal Mian) while considering the definition of the 'building' given in the Ordinance held that a Saw Mill is not covered by the above definition.
(b) On the other hand Mr. Jethanand learned counsel for respondents Nos. 2 and 3 has contended that there is a difference in the language employed in clause (a) of section 2 of the Ordinance and clause (a) of section of the late West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the late Ordinance), inasmuch as in the former the words "all fittings and fixtures" have been substituted in place of the words "together with furniture" mentioned in the latter. It has, therefore, been contended by him that since the words "all fittings and fixtures" are of very wide import that will cover even a running cinema.
4. Adverting to the above contention of the learned counsel for the parties, it may be pertinent to observe that in the above Karachi case of Bashir Ahmed v. Mst. Zubeda Khatoon reference was made to the following three cases:-
(i) Messrs Rehman Cotton Factory v. Messrs Nichemen Company Ltd. PLD 1976 SC 781, in which the Hon'ble Supreme Court inter alia was pleased to hold that a ginning factory was not covered by the provisions of the late Ordinance.
(ii) Ahmed Aziz Zia v. Muhammad Siddique and another PLD 1982 Lah.
37. In the above case a learned Single Judge of the Lahore High Court while construing the terms "non-residential and residential building" given in the late Ordinance held that the same did not cover a building alongwith machinery installed therein.
(iii) Ghulam Hussain v. Abdur Rehman and 2 others PLD 1982 Lah. 519, in which a learned Single Judge of the Lahore High Court held that a factory was not covered by the provisions of the late Ordinance.
' In the above Karachi case after comparing the definition of the term 'building' given in the late Ordinance and the Ordinance, it was held that the above-cited cases under the late Ordinance cannot be distinguished. It may be pertinent to reproduce hereinbelow the relevant observation, which reads as follows: "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."
5. (a) Reverting to the present case, it may be pertinent to refer to clauses 2, 3(1), 3(3), 7, 11, 13, 14, 15 and 19 of the lease-deed which read as follows:- "2. WHEREAS THE LESSORS, by virtue of Agreement, dated 7th September, 1975 signed by (1) Ahmed Hussain, (2) Mushtaq Hussain, the charge and control of Shams Cinema vests in hands and control of Ahmed Hussain as Proprietor of Shams Cinema Hyderabad hereinafter called the "said concern" and there is no other partner in or proprietor of the said concern except as above. If any other person is subsequently discovered to be a business partner or proprietor of the said concern, lessors shall be guilty of cheating and liable to be punished for said offence in addition to civil action; and also if there be any litigation from anyone else, in respect of Cinema business concern, the said lessors shall be bound to remove the same, at his cost risk and responsibility or in the lessee is constrained to make expenses, the same will be deducted from the monthly lease amount of the lessors.
3 (1) NOW THIS LEASE DEED WITNESSETH AS FOLLOWS:- ' That the duration of the lease shall be eleven months commencing from the day of signatures of this lease-deed as 1st September, 1977, the possession of the said concern alongwith complete management, control and business of Shams Cinema Hyderabad is delivered and handed over by the lessors to the lessee.
3(3) That the lessee shall honour all previous agreements and commit ments made by lessors with various film distributors and parties in respect of procurement and screening of several films at the said concern, viz. Farangi, Kafiristan.
(7) That all other taxes including entertainment tax, income-tax on the Cinema earnings, social security contribution, Employees' Old-age Benefits Institution Contribution 'show tax' news-reel tax, board tax, other relevant fees and cesses leviable by Government departments and statutory bodies from time to time shall be exclusively borne and be payable by the lessee during subsistence of the lease. Telephone, water and electric charges shall also be paid by the lessee regularly during subsistence of the lease. However, photostat copies of the documents in proof of payments made towards above-said items shall be made available by the lessee to the lessors at their expenses for their record.
(11) That Shams Cinema Hyderabad must be equipped and delivered with furniture, fittings, fixtures and machinery in good and running condition, and after that the lessee undertakes to maintain at his expenses the equipments in good order during subsistence of the lease; whereafter he shall hand over the same to the lessors in good condition except natural wear and tear, but he shall incur no liability for any damage done to the Cinema building or its equipments by fire, tempest, earth quake or any other irresistible force or natural calamities. The lessee shall not make addition or alteration in the said concern without prior written permission of the lessors.
(13) That Shams Cinema Hyderabad has a canteen, some stalls, few shops and cycle stand etc. within the precincts of the demised premises. By reason of this lease deed the lessors confer upon the lease full rights to manage and control the same and deal with the person running the same according to his sole discretion. Since said persons were previously paying rent and charges etc. to the lessors, now the same shall be payable by them to the lessee during subsistence of the lease and lessors shall have no concern either with said persons or with recovery of said amounts. On the contrary the lessors shall be bound to apprise said persons in writing forthwith of the lessee's rights and direct them to attorn the lessee with payment of necessary rents and other charges, etc.
(14) That lessee shall be bound to continue and maintain any member or members of staff, whosoever he chooses, and all other staff's liability shall be the responsibility of the lessors for their paste dues and any claims whatsoever.
(15) That if the licence issued to the licensee within the purview of Cinematographs Act is cancelled or revoked by any competent authority owing to lessee's contravention or infringement of any of the provisions of said Act or rules made thereunder, the lessee shall arrange its restoration at his own expenses.
(16) That all necessary books of running business and other relevant documents ancillary to and necessary for running management, control and business of the Cinema shall be handed over by the lessors to the lessee and accounts between the parties shall be settled and expiry or determination of lease, whichever is earlier. The lessors shall be entitled to recover any outstanding dues found against lessor from his security deposit but if the dues of the lessee are found outstanding against the lessors, the same shall be first change on the said concern and on the movable properties belonging to the lessors and be recoverable by the lessee and payable by the lessors in the manner prescribed in para. 16 above before taking back possession of the Cinema concern and its equipments."
(b) A perusel of the above-quoted clauses indicates that it is not a case simpliciter of a lease of a building alongwith machinery fixtures and fittings but under the lease-deed the name of the Cinema, the contracts which were outstanding for exhibition of films, the licence under the Cinematographs Act and even the staff have been assigned, though with the option to terminate their services which option is apparently subject to restraints provided for under the labour laws. It may also be stated that under above-quoted para. 19, even the books of accounts etc. were to be maintained by the petitioner.
6. We are, therefore, inclined to hold that even if we were to place widest meaning to the terms "all fittings and fixtures" employed in clause (a) of section 2 of the Ordinance in place of the words "together with furniture" which were used in clause (a) of section 2 of the late Ordinance, the subject-matter of the present petition ,cannot be brought within the ambit of the definition of "building" given in clause (a) of section 2 of the Ordinance. The Ordinance does not cover a running concern, the ratio decidendi of the cases referred to hereinabove in para. 4 on all fours is applicable to the instant case. With the result that the learned Rent Controller had no jurisdiction in the matter.
7. Mr. Jethanand has candidly invited our attention to the case of Ganga Prasad Gupta v . Smt.
Saleha Khatoon and others AIR 1978 All. 507, in which a learned Single Judge of the Allahabad High Court while construing section 2(1)(d) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 held that it does not cover a building which has been leased out alongwith plant and apparatus in view of the exclusion of the same from the definition.
'It is true that there is no such express exclusion in clause (a) of section 2 of the Ordinance but at the same time as we have pointed out hereinabove a running concern with the name and style alongwith the licence under the Cinematographs Act, equipments, machinery/ outstanding contracts for exhibition of the pictures etc. cannot be covered by the above definition.
8. For the aforesaid reasons the petition is allowed with no order as to costs.
' The impugned order is declared without lawful authority and of no legal effect.