JUDGMENT.
The eviction application filed by the appellant has been rejected by the learned Eighth Rent Controller, South, Karachi vide his order dated 13-4-1992 on the ground that as the premises in question were let out by the appellant to the respondent as a saw mill, the provisions of the Sindh Rented Premises Ordinance were. Not applicable and hence the learned Controller had no jurisdiction to try the case.
2. Admittedly the issue qua the learned Controller's jurisdiction was not raised by the respondent in his written statement. However, during the pendency of the case an application under Order 7, Rule 11, C.P.C. Was filed for rejection of the rent application. The learned Controller although, came to a conclusion that the provisions of the Code of Civil Procedure are not attracted in eviction proceedings before the Rent Controller but nevertheless a$ the question raised related to his jurisdiction, the question was determined by him as a preliminary issue.
3. Although Mr. Raja Sher Muhammad has argued that since the question was not initially raised by the respondent at the time of filing of the written statement, no sufficient opportunity was afforded to the appellant to lead evidence on the point but Mr. R.F. Virjee has invited my attention to the pleadings and the affidavits respectively filed on behalf of the parties and the evidence recorded by the learned Controller from which it is not difficult to determine the nature of the premises rented out by the appellant. The eviction application filed on behalf of the appellant clearly indicates that the premises which were rented out consisted of a saw mill. This is also further confirmed by the affidavit subsequently filed on behalf of the appellant by her husband Jabirali. No doubt, in the written statement filed on behalf of the appellant, the premises have been referred to as a shop but the entire evidence led by the parties makes it abundantly clear that the word "shop" has not been used in the written statement in a technical sense because barring the same, the entire evidence led by the parties indicates that the premises let out by the appellant were a saw mill.
4. The question which, therefore, requires determination is whether the learned Controller could exercise jurisdiction under the Sindh Rented Premises Ordinance in respect of a saw mill. The question was earlier raised before the Supreme Court in the case of Messrs. Rehman Cotton Factory v. Messrs Nichimen Co. Ltd. (PLD 1976 SC 781). In this case, reference was made to the preamble to the Urban Rent Restriction Ordinance which showed that the said Ordinance applied only to certain kind of premises, and therefore, according to their Lordships, the Ordinance did not apply generally to all kinds of properties in an urban area. It was further held that the provisions of the said Ordinance were not applicable to property which was a factory equipped with machinery requisite for a particular manufacturing process. This case was relied upon by Ajmal Mian, J. a learned Judge of this Court (as he then was) in Bashir Ahmad v. Mst. Zubeda Khatoon 1983 CLC
390. Although in that case the provisions of the Sindh Rented Premises Ordinance and not the Urban Rent Restriction Ordinance were applicable nevertheless. The conclusion arrived at by his Lordship was that the dictum laid down by the Supreme Court in Rahman Cotton Factory's case was equally applicable to the facts of the case decided by him. Similar view was taken by his Lordship in another case, which is reported as Taiyab A. Kapadia v. Agha Ziauddin Barni 1981 CLC 1267. The view taken in the above cases was once again followed in the case of Muhammad Ismail v. Abdul Habib PLD 1993 Kar. 181 and it was held that a saw mill could not be brought within the meaning of the term "building" as defined by section 2(a) of the Sindh Rented Premises Ordinance.
5. It is pertinent to point out that section 3 of the Sindh Rented Premises Ordinance indicates that the Ordinance applies to "all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area." The term "premises" has been defined in section 2(h) of the said Ordinance to mean as "a building or land let out on rent but does not include a hotel". The words "building" and "land" occurring in the definition of premises have also been separately defined by section 2 of the said Ordinance.
Building, according to clause (a) of the said section, means "any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garage, outhouse and open space attached or appurtenant thereto." Land has been defined to mean as "land or open space, not, being agricultural land or land or open space attached or appurtenant to any building". As is clearly evident from the above definitions, a saw mill does not fall either within the purview of the A expression "building" or "land" as defined by section 2 of the said Ordinance. Therefore, there can hardly be any doubt that a saw mill which can neither be construed as a land or a building as per the above definitions, is clearly excluded from the purview of the Sindh Rented Premises Ordinance.
It is not the case of the appellant that the saw mill was subsequently installed on the land in question. On the contrary it is an admitted position that when the I premises were let out to the respondent, a saw mill had already been installed thereon. Consequently, in my view, the cases referred to by me above are clearly attracted to the facts of the present case. Although Raja Sher Muhammad has argued that the case should be remanded to the learned Controller for recording evidence on the point to determine the question whether the premises consisted of only a saw mill or a shop but in my opinion, no useful purpose would be served by remand of the case because the evidence on the point already appears to be sufficient upon which a clear finding could be given by the learned Controller.
6. For the aforesaid reasons, I find no force in this appeal, which is dismissed. The parties are left to bear their own costs.