1. KHILJI ARIF HUSSAIN, J.--- By this petition the petitioner has challenged the order passed by the learned Vllth Additional District Judge, Hyderabad dismissing the rent appeal and maintained the order of ejectment passed by the Rent Controller.
2. The brief facts of the case for the purpose of disposing of the petition are that the petitioner is tenant whereas respondents Nos. 1 to 3 are the landlords. Respondents Nos. 1 to 3 are the owners of plot bearing C.S. No. 1610/7 admeasuring 817 square yards Ward "B" Tando Allahy3r. It is stated that about 40 years back predecessor-in-interest of respondents Nos. 1 to 3 constructed four shops on a portion of the said plot and sometime in the year 1968-69 let out one shop admeasuring about 2000 sq. Ft.
3. To the petitioner at the rate of Rs. 300/- per month.
4. The respondent filed an ejectment application under Section 15 of the Sindh Rented Premises Ordinance, 1979 against the petitioner in the Court of Rent Controller on the ground of unauthorized additions and alterations, default in payment of rent and personal bona fide requirement of respondent No. 3. The petitioner filed written statement and in the written statement petitioner admitted that the respondents are the co-owners of the C.S. No. 1610/7 and that predecessor-in- interest of the respondents had constructed shops on it and let out the shop in question on a portion of the said survey number to the petitioner. The petitioner denied the allegation of additions and alterations and that he had committed default in payment of rent. The petitioner further denied that the premises is required by respondent No. 3 and stated that the shop in question is not suitable for running business of spare parts for which the respondent requires the premises. In the written statement the petitioner raised various additional pleas including that the application is riot maintainable in law and that the petitioner is earning his livelihood through hotel established in the said shop and the same is opponent/tenant source of income.
5. On the basis of the pleadings learned Rent Controller framed issues including issue about maintainability of the application before the Rent Controller. Learned Rent Controller after recording evidence held that the application is maintainable and further held that the petitioner has committed default in payment of rent and respondent No. 3 requires the premises in question for his personal need.
6. Aggrieved from the ejectment order passed by the Rent Controller, the. Petitioner filed an appeal, which-was heard by the Vllth Additional District Judge, Hyderabad and the same was dismissed.
7. Through this petition the petitioner has challenged the order passed by the Rent Controller as well as by the Appellate Court.
8. Heard Mr. Jhamat Jethanand, learned Advocate for the petitioner and Mr. Hassan Mehmood Baig the learned Advocate for the respondent. Mr. Jhamat Jethanand challenged the orders only on .The ground that the application for ejectment was not maintainable before the Rent Controller as the premises in question is being used as a hotel by the petitioner. In support of his contention learned Advocate has drawn my attention to the additional plea taken by the petitioner In his written statement which reads as under:--
7. "That opponent/tenant is earning his and his poor family members livelihood through a hotel established on the suit shop and opponent/tenant has no other source of income. If the application is allowed, the opponent/tenant will suffer irreparable losses and legal injury, on the contrary if the application is not allowed/granted, the applicants will neither suffer any loses nor legal injury."
9. Mr. Jhamat Jethanand also drawn my attention to the cross-examination of the respondent No. 1 in which the respondent No. 1 admitted that the petitioner is running hotel in the rented premises.
10. Learned Advocate further drawn my attention to a portion of the cross-examination in which the petitioner stated that "the petitioner is running hotel since beginning".
11. On the other hand learned Advocate for the respondent argued that the respondent had let out shop to the petitioner who after taking the same on rent converted it into a hotel. Learned Advocate argued that the premises was never let out as a hotel to the petitioner. Since the shop was let out to the petitioner, the Rent Controller has his jurisdiction in the matter. Learned Advocate further argued that after filing rent case by the respondents, the petitioner himself filed an application under Section 10 of the SRPO, 1979 seeking permission to deposit the rent in Court which, clearly established that the petitioner himself had admitted the jurisdiction of the Rent Controller. Learned Advocate for the parties relied upon the cases of Shafiqur Rehman v. Haji Agha Hassan (1995 SCM R 313), Muhammad Anwar v. Jamaluddin (1996 SCM R 771). have taken into consideration the argument advanced by the learned Advocate for. The parties and have also gone through the record. The point which requires consideration in the petition is whether the premises in question fall within the definition of a hotel or not as to ought "the jurisdiction" of Rent Controller.
12. Before discussing the case I would like to discuss the admitted facts on the record.
13. The respondents in their application under Section 15 of the Sindh Rented Premises Ordinance, 1979, stated that they are the owners of plot City Survey No. 160/7 admeasuring 817 sq. Yards and have constructed a shop on a portion of the said City Sure by covered and area of about 2000 sq. Ft. And the same is to be referred to as the said shop. It is further stated in the application that the shop was given on rent at the rate of Rs. 800/- per month under an oral agreement. In reply to these averments that the respondents are the owners of Survey No. 1610/7 and that they had constructed the shops on portion of .The said survey number and let out the shop to petitioner on rent at the rate of Rs. 800/- per month, the petitioner in his written statement stated that the contents in paras. Nos. 1 to 3 of the application need no comments. In reply to paras. 8, 9 and 10 of the applications petitioner has stated that the respondents owned other shops including demise shop and that respondent No. 3 had no experience of running spare parts business and that the demise shop is not suitable for running business of spare parts and that the same is not required for the personal bona fide use of respondent No. 3. Although petitioner has raised additional pleas in his written statement about maintainability of the application have not failed why the application is not maintainable. He further stated in his additional pleas that the opponent is earning for his poor family members livelihood through hotel established in the suit shop and opponent tenant has no other source of income.
14. From perusal of the application and written statement it appears that the respondents had stated that they had let out a shop to the petitioner which fact has been admitted by the petitioner. In the written statement petitioner has stated that he has established a hotel in the said shop.
15. The respondents Nos. 1 to 3 have filed their affidavit-in-evidence wherein they have stated that respondents had let out the shop to the petitioner on monthly rent of Rs. 800/- per month and the said shop is required in good faith for the personal bona fide use of respondent No. 3 to start and carry on of his own business of selling the motor parts in the said shop. In the cross-examination respondent No. 1 admitted that the petitioner is running hotel in the rented premises. No such suggestion has been made to respondents Nos. 2 and 3 during cross-examination by the petitioner's Advocate nor it is suggested that it is the hotel which was let out to the petitioner and not the shop . The petitioner has filed his affidavit-in-evidence and in the said affidavit also he has not said a single word that the premises was let out to him as a Hotel. The petitioner in his cross- examination admitted that in his written statement he has admitted that the rented premises is a shop but voluntarily stated that it is a hotel. The petitioner further said in the cross-examination that he is running the hotel since beginning. In his cross-examination the petitioner stated as under:-- "I am running hotel since beginning. It is correct to suggest that I am selling tea in the premises voluntary says that apart from selling tea and selling food in the premises and are also arrangements to stay at hotel by transporters, eight tables and 20 cots are lying in the premises. I am not maintaining register of guests reside.
16. It is incorrect to suggest that I am running a restaurant in the rented premises. It is incorrect to suggest that I am running hotel in the rented premises. It is correct to suggest that I have stated in my written statement that I close the premises at night time. Voluntary says that is for the reason that the wall of the room of the premises has collapsed."
17. On behalf of the petitioner one Ramzan has appeared as a witness and stated that he is running a Pan-Biri Cabin just by the hotel of the petitioner. In his cross-examination he stated that the premises remain open 24 hours and during his service the petitioner was running business of tea, food and bedding in the room situated over the premises.
18. On the basis of this evidence, the learned Rent Controller after framing the issue about the - maintainability of rent application come to the conclusion that-the respondents had let out a shop to the petitioner in which the petitioner has established a hotel and he had jurisdiction in the matter. The learned Rent Controller further held that the petitioner himself filed an application under Section 10 of the Sindh Rented Premises Ordinance, 1997 seeking permission to deposit rent in Court which itself clearly established that the petitioner is treating suit premises as a shop not as a hotel. Learned Additional District Judge also elaborately in his judgment affirmed factual finding of the Rent Controller and maintained the order of ejectment passed by the Rent Controller yb holding that the premises in question was let out as a shop and the Rent Controller have jurisdiction.
19. Term Hotel has not been defined in the SRPO and likewise in West. Pakistan Urban Rent Restrict Ordinance, 1954. In definition clause 2(h) of SRPO, 1979 Legislator only stated that "premises" means a building or land, let out on rent but does not include ,, hotel.
20. 1995 SCMR 313), the. Hon'ble Supreme Court held as under:-- "Indeed in some paras. Of the rent application the word, 'hotel' has been used but this cannot negate the above pleading. 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 A.I 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, wayfares, etc." The Black 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."
21. 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 any special contract, to any traveller presenting himself who appears able and willing to a pay reasonable sum for the service and facilities provided and who is in 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 travellers and guests and an establishment which only offers refreshment, would, therefore, ordinarily not mean a hotel."
22. 1996 SCMR 771), Hon'ble Supreme Court has held that since the premises was not let out as a hotel.
23. Rent Controller have jurisdiction in the matter.
24. The terms hotel which has also been defined in The Karachi Hotels and lodging Houses (Control)
25. Act, 1950 as under:- "(4) "hotel for lodging house" means a building which is exclusively or mainly dismissed, for providing recommendation for guests for a monetary consideration but shall not include a home or hostel which is maintained exclusively for aged or incurable persons, or, as the case may be, for students, by or under the control of a charitable or educational institutions."
26. The Pakistan Hotels and Restaurants Act, 1976 also defined term 'hotel' as-- (g) "hotel" means a lodging, or boarding and lodging, establishment with minimum of ten letteable bed rooms, provided for tourists on monetary consideration, which conforms to any of the prescribed criteria, but does not include--
(iii) a home or hostel which is exclusively or mainly used for the aged or invalid persons or students and is run by or under the control of a charitable or educational institution; or
(iv) any rest house, hostel or circuit house exclusively meant for visiting Government officials or officials of other organization, though run on a commercial basis."
27. Keeping in view the principle laid down by the Hon'ble Supreme Court in the case of Muhammad Anwar v. Jamaluddin (supra) as to term "hotel" defined in Pakistan Hotels and Restaurants Act, 1979.
28. I have scrutinized the pleadings of the parties as well as evidence on record. From the pleadings it appears that the respondent landlord in his application for ejectment specifically stated that they have rented out a shop to the petitioner likewise also petitioner has admitted in his written statement that he taken on rent a shop from the respondents. The petitioner in his evidence during cross-examination stated that he had established a hotel in the shop which speak in volume that the petitioner had started business of hotel after taking the premises as shop and not hotel itself.
29. 2003 SCMR 722), the Hon'ble Supreme Court held that:-- "... The unilateral act of the tenant, therefore, of using the property for a particular purpose after it was rented out to him by the landlord, is not the determining factor whether the same would fall within the definition of terms premises as- given in Section 2(h) of the Ordinance whereas it is the purpose for which the property originally was let out which would determine whether the same falls within the definition of premises to attract the provisions of the Ordinance."
30. For the foregoing reasons petition is dismissed however I allow four months time to the petitioner to vacate the premises. .