' AJMAL MIAN, J.---1. This is an appeal of a landlord with the leave of this Court against the judgment dated 3-2-1992 passed by a learned Single Judge of the High Court in F.RA. No,244/88 filed by a respondent/tenant against the order of the learned IInd Sr.C.J. And Rent Controller (South), Karachi dated 24-7-1986 granting ejectment order inter alia on the ground of default, allowing the same for the reason that the suit premises were a hotel and, therefore, were not covered by clause 'h' of section 2 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred as the Ordinance).
2. The brief facts are that the appellant had filed Rent Case No,996/86 on the grounds of default for the period from January 1986 to June, 1986 amounting to Rs,2,500, unauthorised conversion of the shop into a restaurant, nuisance, unauthorised alterations.
' The above rent case was resisted by the respondent. The learned Rent Controller on the basis of the pleadings of the parties framed the following six issues:--
(1) Whether the opponent has committed default in payment of rent from February, 1986 to June, 1986 ?
(2) Whether the opponent has converted the shops into a hotel without permission or consent of the applicant?
(3) Whether the opponent has demolished the intervening walls of the disputed shops and combined all the shops into one and thereby he has impaired the value and utility of the disputed shops?
(4) Whether the opponent has created nuisance for the neighbourers and other occupants of the building by running the hotel in the disputed premises and also by lack of sanitation?
(5) Whether the opponent is running the disputed shops other than the purpose for which it were rented out to the opponent?
(6) What should the order be?
3. Upon the appraisal of the evidence produced by the parties the learned Rent Controller recorded his findings in the affirmative on above issues Nos.1 and 4, and consequently allowed the ejectment. Whereupon the respondent filed above F.RA., in which first time it was urged that as the subject-matter of the rent case was a hotel, it was not covered by above clause `h' of section 2 of the Ordinance, though this plea was neither pleaded nor urged before the learned Rent Controller.
' The above ground found favour with the learned single Judge in Chambers. Consequently he allowed the above appeal and remanded the case to the learned Rent Controller with the direction to record further evidence on the question of the nature of the premises and to decide the case afresh. After that the appellant filed a petition for leave to appeal, which was granted to consider the questions, whether the High Court was justified in holding that the shops which were let out by the petitioner to the respondent, were excluded because there was a hotel therein in the absence of any such plea in the written statement and/or in the absence of any such arguments before the learned Rent Controller, and whether a restaurant is excluded from the ambit of the Ordinance.
4. We have heard Mirza Abdul Rashid learned counsel for the appellant and Mr. A.F.M. Mukaram, learned counsel for the respondent, and we find that the above reason which prevailed with the learned Judge in Chambers is not sustainable in law on the basis of the pleadings of the parties and the evidence on record. It may be pertinent to point out that the appellant in paras.2 and 4 of the rent application had pleaded as follows:-- "2. "That the opponent is the tenant in respect of the Shops Nos.7, 8, 9, 11 and 44 at the rental value of Rs,500 per month.
4. That the opponent has taken the said premises on rent on shops but subsequently he has converted the same into a Hotel namely 'Cafe Milli" without prior permission or consent from the landlord/applicant."
' The above paras. Were replied to by the respondent through paras. 4 and 6 of his written statement which read as follows:-- "4. That the contents of para. 2 of the application are not denied with the explanation that the rent was unauthorisedly increased to Rs,500 per month since. January, 1986. The previous rent was Rs,350 per month.
6. That the contents of para. 4 of the application are equally false and frivolous and hence denied, disputed and challenged. The Hotel 'Cafe Milli' has been existing since before partition when the same was owned by Hindu owners. The present owners have acquired/purchased this building in December.
1978."
5. A perusal of the above-quoted para. 2 of the rent application shows that the plea of the appellant was that he had let out shops to the respondent at Rs,500 per month. The above averment of the appellant was admitted by the respondent in the above-quoted para. 4 of the written statement. Whereas the appellant in para. 4 of the rent application quoted hereinabove had pleaded that the respondent No,1 had converted the use of the shop into restaurant, which averment was denied by the respondent and it was pleaded that 'Cafe' had been in existence before the partition of India. The respondent during cross-examination stated as follows:-- "And there was no necessity that for obtaining permission from the landlord as the hotel was running in the disputed premises to the knowledge of landlord, before the applicant purchased the same."
' The learned Rent Controller had also recorded the finding under above-quoted issue No,2 to the effect that the appellant had converted the shops into a restaurant.
6. Indeed in some paras. Of the rent application the word, 'hotel' has been used but this cannot negate the above pleadings. Factually there is no hotel in the premises but it is a restaurant. The term hotel connotes different meaning than the term restaurant or cafe. The former carries the meaning of premises which have facilities for residential purpose, whereas the latter word connotes a place where refreshment/eatables are sold. In this regard reference may be made to the judgment of this Court in the case of Zaffar Ali v. Allah Bachayo (PLD 1989 SC 294) where the above question has been dilated upon as under: "The Ordinance does not define the word 'hotel' and therefore it would be necessary 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'."
' 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 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 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, 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 difinitions 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 travellers and guests and an establishment which only offers refreshment, would, therefore, ordinarily not mean a hotel."
7. We are, therefore, of the view that the judgment under appeal is not sustainable and the appeal is allowed and the case is remanded to the High Court with the direction to decide the above F.RA.
On merits of the grounds, which found favour with learned Rent Controller while granting the ejectment order. However there is no order as to costs.