1. ' ZAFFAR HUSSAIN MIRZA J.--This appeal arises out of judgment dated 25th October, 1982, whereby the learned Chief Justice of the Sind High Court accepted the appeal of the respondent under section 21 of the Sind Rented Premises Ordinance and set aside the order of the Rent Controller directing eviction of the respondent from the rented premises in his occupation.
2. ' Leave was granted by this Court to appeal against the aforesaid judgment in order to consider the following contentions: "(i) That the learned Chief Justice misread the pleadings and evidence on record, which unequivocally made out that the premises comprised a shop and not a 'hotel' within the meaning of the Sind Rented Premises Ordinance, 1979.
(ii) That the term 'hotel' not being defined in the Sind Rented Premises Ordinance, 1979, it has to be construed and given its ordinary meaning, which connotes a place for lodging of travellers or other persons wishing to avail such service. Even other laws on the subject of "hotels or lodging houses" use the term in this sense."
3. ' The facts giving rise to this appeal are that the appellant is a tenant of the respondent on a monthly rent of Rs,175 which tenancy commenced in the year 1972, under the previous landlord in respect of the premises. As the question is as to the nature of the premises in dispute it will be convenient to reproduce the relevant paragraphs of the pleadings of the parties in respect thereto.
4. In paragraph (1) of the application for ejectment the landlord stated as under: "That the opponent is a tenant of the applicant in respect of shop situated on portion of City Survey Plot No,1547 Ward 'A' situated in Shahi Bazar near Fish Market Thatta with boundaries as per schedule at the monthly rent of Rs,175 payable on every 1st of the calendar month and has been doing hotel business therein."
5. ' In reply to this paragraph the tenant in his written statement pleaded as under.
6. "That the contents of para. No,1 are admitted. It is further submitted that the applicant is son of the previous landlord Haji Abdul Wahid Memon."
7. ' The appellant who is the landlord sought the eviction of the respondent on a plea that he required the premises for his personal use. Before the Rent Controller the parties went to trial without any dispute as to whether the premises in question constituted a shop or a "hotel". In the written statement also the tenant did not specifically plead lack of jurisdiction on the part of the Rent Controller on the ground that the premises were a hotel and consequently outside the purview of the Sind Rented Premises Ordinance. Therefore, the learned Rent Controller tried the sole main issue between the parties as under: "Whether applicant requires disputed premises for his personal bona fide use?"
8. ' Upon considering the evidence adduced before him the learned Rent Controller held that the landlord had established the case of personal requirement and the eviction of the tenant by his order dated 31st July, 1982.
9. ' On an appeal against the aforesaid order before the High Court of Sind the tenant for the first time raised the preliminary legal objection as to the jurisdiction of the Rent Controller on the ground that the application for ejectment was not maintainable for the reasons that the premises whichwas the subject-matter of the appeal was a hotel and consequently outside the purview of the Ordinance. Reliance was placed on section 2(h) of the Sind Rented Premises Ordinance, which defines "premises" as under: "'Premises' means a building or land let out on rent, but does not include a hotel:"
10. ' On behalf of the landlord it was contended before the learned Chief Justice that no specific plea was raised by the tenant raising the preliminary objection before the Rent Controller and that the premises was indeed not a hotel but an eating house. However, the learned Chief Justice referring to the paragraphs of the pleadings reproduced above held that it was an admitted position that the premises constituted a hotel and therefore it was not necessary to frame an issue on the point.
11. Accepting the objection that the eviction application related to premises which was a hotel within the meaning of section 2(h) of the Sind Rented Premises Ordinance, the learned Chief Justice held that the application was incompetent and allowed the appeal.
12. ' Mr. K.B. Bhutto urged that the learned Chief Justice has misread the pleadings and wrongly held that it was admitted position that the premises constituted a hotel within the meaning of section 2(h) of the Sind Rented Premises Ordinance. He pointed out that in his affidavit before the Rent Controller the tenant categorically admitted vide paragraph 17 that only tea is sold in the shop.
13. According to the learned counsel the word 'hotel' connotes a place where there is arrangement for lodging and boarding. Therefore, a place which caters for providing 'eatables or drinks, may be an eating house but not a hotel. In this connection he placed reliance on Dur Muhammad and others v. Muhammad Qasim (PLD 1987 Kar.273). Counsel also referred to the dictionary meaning of the word 'hotel' in various dictionaries.
14. ' Mr. Hussain Adil Khatri, learned counsel appearing for the tenant, was unable to cite any case-law in support of the view taken by the learned Chief Justice that there can be no distinction between an eating house and a hotel providing lodging, as both such places would be covered by the word 'hotel'.
15. After hearing the learned counsel for the parties we feel that no doubt if the premises constitute a hotel the provisions of the Sind Rented Premises Ordinance will not be attracted, for the simple reason that section 15 thereof contemplated ejectment of a tenant from the "premises" which according to the definition excludes a hotel. However, it will always be a question of fact whether a particular premises which is subject-matter of eviction application is hotel or not. It may at the very outset be stated that the learned Chief Justice was not entirely correct in assuming that it was admitted position in the pleadings of the parties that the premises was a hotel. The perusal of the contents of paragraph 1 of the application for eviction, as reproduced above, shows that the case of the landlord was that the respondent was his tenant in respect of a shop, in which he was doing hotel business. The admission of the tenant that he was only selling tea in the shop, clearly excludes the use of the shop for lodging of travellers or guests coming for overnight stay in the premises. We are unable to agree with the learned Chief Justice that a shop let out for being Used as providing refreshments as an eating' house would fall under the definition of the word "hotel".
16. ' The Ordinance does not define the word "hotel" and therefore it would be necesary first to see the ordinary grammatical meaning of the word. According to the Shorter Oxford English Dictionary the word "hotel" inter alia means "an Inn; especially one of a superior kind," and the word "Inn" according to the same dictionary, inter alia, means "a dwelling place, habitation, lodging, a public house for the lodging and entertainment of travellers, wayfarers, etc." The Black's Law Dictionary (Fifth Edition) defines the meaning of the word "hotel" as under: "A 'hotel' is a building held out to the public as a place where all transient persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a well-defined private group."
17. ' In Stroud's Judicial Dictionary (Third Edition), it has been stated that a "hotel" is a place where lodgings are let and where provisions are, to some extent, supplied. It is further observed that the modern E word is introduced from the French, and rather implies a house to which people resort for lodgings, than for the sort of entertainment procured only at an inn. In this book several cases are quoted where the essential nature of a hotel has been described as the business carried on in a building to which the public are entitled to F resort for accommodation and refreshment or reception of guests and travellers desirous of dwelling therein. In Halsbury's Laws of England (Third Edition) the following statement has been made" a hotel is an establishment held out by the proprietor as offering food, drink, and if so required, sleeping accommodation, without special contract, G to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received." From the various definitions of the word "hotel" in ordinary grammatical meaning and as used in some of the statutes interpreted judicially, we feel that the concept of hotel ordinarily imports the idea of providing accommodation to H travellers and guests and an establishment which only offers refreshment, would, therefore, ordinarily not mean a hotel.
18. ' Even otherwise a premises used only for selling tea and other drinks, in the context of the Sind Rented Premises Ordinance does not appear to be excluded for any good reason. A shop used for carrying on trade by sale of other goods, not being excluded from the definition of the word "premises", it will be contrary to the intendment of the statute to extend the meaning of the word "hotel" to include a place where only refreshments are offered for sale. It, therefore, appears that the word "hotel" as used in section 2(h) of the Ordinance denotes a hotel in the sense of a place or building which offers lodging accommodation to travellers and guests who wish to utilize the same. Such view was taken in Dur Muhammad and others v. Muhammad Qasim (PLD 1987 Kar.273) and K.P.Moidoo and another v. Mst. Noor Jehan Begum (1983 CLC 723). Indeed it is common knowledge that in the urban centres in this country the word is understood in that sense.
19. The establishments .Which offer refreshments like eatables and drinks are generally called restaurants or cafes. It is also common knowledge' that in mofussil areas of this country the word "hotel" is loosely used with reference to small road side tea shops. This possibly accounts for the use of the expression "hotel business" in the eviction application. It may be pointed out once again that if the tenant wanted to urge the plea of want of jurisdiction, he had to move the Rent Controller for framing of such preliminary issue so that parties could produce evidence on the factual question whether the premises were used as a hotel in the true sense of the word. Having failed to urge this point before the Rent Controller, the tenant was not entitled to take this plea for the first time in appeal, to which a factual plea in defence could be taken by the landlord before the trial Court. It is also not incumbent upon the Court to decide an issue on admission as according to the proviso to section 58 of the Evidence Act the Court is empowered to require the proof of facts which are admitted, by evidence otherwise than by such admissions. In the present case when the issue of lack of jurisdiction wag not pressed at the initial stage and the tenant admitted that he only sold tea at the premises in question, we feel that the learned Chief. Justice was not justified in proceeding on the basis of the so-earned admissions in the pleadings.
20. ' In the result this appeal succeeds and is allowed with costs. However, since the learned Chief Justice proceeded on the preliminary point and did not examine the question of fact whether the plea of personal requirement set up by the landlord was established on the evidence adduced the case is remanded to the High Court for disposal of the appeal on merits in accordance with law.