EJAZ AFZAL KHAN, J.---The petitioner herein assailed the order of the learned District Judge, Peshawar, dated 21-3-2000 whereby the learned District Judge, upheld the order of the learned Rent Controller, dated 17-2-1999.
2. The facts in brief are, that the predecessor-in-interest of the respondents instituted an application for the ejectment of the petitioner in the Court of learned Rent Controller Peshawar which was accepted by him Vide: order, dated 17-2-1999. The petitioner on feeling aggrieved by the order of the learned Rent Controller preferred an appeal in the Court of learned District Judge Peshawar which too bore no fruit as the same was dismissed vide; order, dated 21-3-2000. The petitioner now questioned the validity of the orders of the learned Courts below by filing this Constitutional petition .In this Court.
3. The only point which was canvassed at the bar by the learned counsel for the petitioner was that the demised premises do not come within the definition of building, hence the learned Rent Controller had no jurisdiction to entertain, hear and decide the same. The learned counsel for the petitioner to stress his contention relied upon the case of Muhammad Ismail v. Abdul Habib PLD 1993 Kar. 181 and Bashir Ahmad. v. Mst. Zubeda Khatoon 1983 CLC (Karachi) 390.
4. On the other hand, the learned counsel for the respondents contended that the demised premises were rented out to the petitioner on payment of rent. There is no dispute in between the parties as to the relation--ship of landlord and tenant and location of the property in urban area.
With regard to the jurisdiction of the learned Rent Controller, the learned counsel for the respondents contended that it was not seriously urged and argued by the petitioner, in the lower forums. He while concluding his arguments submitted that the factual controversy having been concluded .By the two Courts below does not admit of any interference in the exercise of Constitutional jurisdiction.
5. We have anxiously considered the contentions of both the counsel for the parties, the law produced by them and have been through the record of the case. The only, question which is to be decided and determined by this Court is whether the demised premises would fall within the purview of the expression building as defined in section 2(a) of the West Pakistan Rent Restriction Ordinance, 1959. Before proceeding ahead it would be proper to refer to the definition of the expression building as given in the Ordinance which reads as under:--- "(a) 'building' means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, out-houses, together with furniture let therewith but does not include a room in a ' Sarai' , hotel, or boarding house. "
6. It would thus, be seen that the expression building is wide enough to include land leased or let out for the purpose of being used for business or l trade. In order to oust the jurisdiction of the Rent Controller and to take a property out of the purview of the expression building as defined by the Ordinance it has to be established that at the time of lease, it was an Industrial Unit or a Factory. If the property leased or let out was a piece of land or a vacant site at the time of creation of its lease, it would essentially be covered by the expression building as defined by the Ordinance.
Subsequent conversion of the same into a factory or Industrial Unit will not be taken to oust the jurisdiction of the Rent Controller. Our view gets added strength from the judgment of the Lahore High Court delivered in the case of Muhammad Sharif v. Saeed Akhtar Hussain and 8 others PLD 1985 Lah. 365 wherein it was held that if a property was not a factory at the time of creation of its lease, subsequent utilisation thereof for Industrial purposes will not gust of the jurisdiction of the Rent Controller. The relevant paragraph is reproduced as under:-- "It, therefore, emerges from the above discussion that in order to oust the jurisdiction of the Rent Controller and to take a property out of the purview of the West Pakistan Urban Rent Restriction Ordinance on the basis of the property being a factory it has to be established that at the time of lease it was an industrial unit/factory which was being leased out as such or that the same was out of the limits of an urban area. If the property leased/rented as taken at the time of lease/renting out was one which fell within the definition of various properties mentioned in the West Pakistan Urban Rent Restriction Ordinance, 1959 the subsequent utilisation thereof for some other purpose would not operate so as to take the property out of the purview of the said Ordinance and for that matter create ouster of jurisdiction of the Rent Controller."
Similarly in the case of Noor Muhammad Khan v. Haji Muhammad A.I Khan and 24 others PLD 1973 SC 218 it was held that where demised premises at the time of creation of lease, consisted of a piece of land, subsequent construction of a Cinema thereon will not oust the jurisdiction of the Rent Controller. The relevant paragraph is reproduced as below:-- "It will thus, be seen that the terms ' building' is very wide and include any land let therewith. In the present case, 5-1/2 shops were leased out and al6ngwith it, a vacant piece of land was also let out to Mana Singh. In such circumstances, it is quite clear that the lease of the vacant piece of land was of a building which falls within the definition of 'building' in the said Ordinance."
No doubt in the case of Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781, the jurisdiction of the Rent Controller was held to be ousted because the demised premises, in the referred case were situated outside the urban area and for the reason that at the time of its being let out it was all along a Ginning Factory equipped with machinery for processing and ginning cotton. But the above referred case, to our mind, is distinguishable from the instant one: firstly because the demised premises herein are situated within the urban area and secondly because at the time of creation of lease, it was just a piece of land. When seen in this context, the case of Muhammad Ismail v. Abdul Habib PLD 1993 Kar. 181 is also distinguishable because in that case too the property rented out was a Saw Mill and not a piece of land as is evident from para.2 of the judgment. . For the same reason the case of Bashir Ahmad v. Mst. Zubeda Khatoon 1983 CLC (Karachi) 390 is also distinguishable from the case in hand.
7. It is established from the record that the demised premises consisted of a piece of land at the time when it was rented out to the petitioner and so is the fact that Saw Machine thereon was installed subsequently. Therefore, it is held that the demised premises will not fall out side the scope of building so as to oust the jurisdiction of the Rent Controller.
8. As a Sequal to what has been discussed above, we find this petition devoid of substance, hence dismiss the same with no order as to costs.