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Petitioner: COMBIND INVESTMENT (PVT.,) LTD. VS Respondent: WALL BHAI and others
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Maqbool Baqar, Faisal Arab Title: COMBIND INVESTMENT (PVT.,) LTD. vs WALL BHAI and others Case No.: Civil Appeal No,79-K of 2015 Date of Judgment:2016-06-02 Reported As: PLD 2016 Supreme Court 730 Result: Appeal allowed.
JUDGMENT
JUDGMENT ' MAQBOOL BAQAR, J.--Appellant, through the above appeal, with the leave of Court, has assailed the judgment dated 14.11.2014, whereby a learned Single Judge of the High Court of Sindh has allowed the respondent's constitution petition against the judgment dated 11.5.2012 of District Judge, Hyderabad, in terms whereof the learned District Judge has dismissed the appeal filed by the respondent against the order of the 1st Senior Civil Judge/Rent Controller, Hyderabad, dated 16.11.2011, for his ejectment from the premises constructed on City Survey No, P/ 1165, Qazi Abdul Qayyum Road, Hyderabad. The above ejectment order was passed by the Rent Controller on an ejectment application filed by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979 ("the Ordinance") on the ground of default in the payment of monthly rent and of personal bona fide use. However, through the impugned order the learned Single Judge in Chambers allowed the respondent's petition and set aside the ejectment order on the ground as urged by the respondent in the petition, and in his written statement before the Rent Controller, that since the demise premises is a hotel premises, neither the Ordinance applied to the premises nor the Rent Controller had the jurisdiction to entertain and decide the ejectment proceedings in respect thereof under the Ordinance. The question before us in this case is as to whether the Rent Controller had the jurisdiction to entertain and decide the application filed by the appellant for ejectment of the respondent under section 15 of the Ordinance. According to the respondent the Rent Controller had no jurisdiction in the matter, as in terms of section 3 of the Ordinance, the said Ordinance is
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applicable to rented premises only. Whereas, hotel is excluded from the meaning of premises as defined by section 2(h) of the Ordinance. However, according to the learned counsel for the appellant the demised premises was never let out to the respondent for running a hotel therein, but was rented out only for business/residential purpose, and the conversion of its user to a hotel was a unilateral act of the respondent. The demised premises is admittedly a commercial premises situated in a commercial area. The purpose for which the premises was leased out has been broadly described in the lease agreements/deeds between the parties as business/residential. The nature of the business permissible in the premises has not been restricted by specifying any category of business. Certainly running of a hotel can by no means be described as an engagement/activity other than a ' business engagement/activity, and can by no stretch of imagination be said to be an occupation not falling within the definition of the word business. The respondent in his written statement, and through affidavit in evidence of his witness has claimed that in fact the original owner of the demised premises, Mir Khalilur Rehman, the founder of the Jang Group of Companies, had commenced the construction of the demised premises with a plan to establish and run a hotel therein, under the name and style of Al-Khalil Hotel, but on account of his preoccupation with his newspaper business had abandoned the plan, but such claim has not been specifically denied by the appellant in their affidavit in evidence. The premises was demised to the respondent by Mir Khalilur Rehman, under and in terms of an agreement to lease dated 18.6.1974 (Ex.26). The premises, as mentioned in the said agreement, and all the three subsequent lease agreements/deeds between the parties (Ex.26 to Ex.29), was leased out to the respondent for "business/residential purposes". Perusal of the above agreements/deeds (Ex.26 to Ex.29), and the letter dated 28.5.2011 (Ex.56) together, clearly reveals that at the time of its demise to the respondent in June, 1974, the premises consisted of a bare structure, containing ground plus mezzanine, and three upper floors, and the same was built into a hotel by the respondent by constructing rooms with attached baths in the mezzanine and the upper three floors within the knowledge, and with the consent and approval of Mir Khalilur Rehman. In order to substantiate the above one may refer to the following recital as contained in the lease agreement dated 30-9-1974 (Exh.27). "AND WHEREAS the LESSOR has constructed (7) rooms with attached bath in about half portion of the big hall on the first floor of the building at his own costs and intends to construct (7) rooms in the remaining portion of the said hall and (4) rooms in the hall on the Mezzanine floor of the building at his own costs." ' And then to the lease deed dated 8.12.1976 (Ex.28) which contains the following recital: "AND WHEREAS the lessee has constructed (14) rooms with attached baths in the big hall on the first floor and (4) rooms in the hall on the Mezzanine floor of the building at his own costs on the clear understanding that the construction so erected being an accretion to the building shall become the property of the Lessor without payment of any compensation or value to the Lessee and in consideration thereof the Lessor shall not enhance the agreed rent of Rs,4,000/- p.m. upto 31st day of May, 1978." The above has, to the extent of the factum of the construction, been repeated in the lease deed dated 01.6.1986 (Ex.29). The said deed also records that the respondent, the lessee, "has further requested the lessor to grant him permission to construct/alter the premises to suit his requirements" whereas through clause 2(b) of the said deed, the lessor acceded to the said request in the following terms:
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"(b). That any construction/alteration/additions by the lessee shall be done only by approval of Hyderabad Development Authority and under the supervision of a Licensed Architect/Engineer only on the written consent of the Lessor." Through his letter dated 28.5.1986 (Ex.56) also, Mir Khalilur Rehman permitted the respondent to make amendments, alteration, or addition to the demise premises, with the approval of the Hyderabad Development Authority. Significantly the address of the respondent, as mentioned in the letter describes the demised premises as 'Palace Hotel". In fact, the fact that at the time of its demise the premises was 'merely a structure, categorically and repeatedly pleaded by the respondent in his written statement and deposed by his witness through his affidavit-in-evidence has not only remained un rebutted throughout but the appellant's sole witness, Ghulam Moinuddin, during his cross- examination has admitted that the premises, when leased out, was just a structure of a building, which was completed with further construction and finishing by the respondent. The respondent's witness during his evidence produced; seventeen bills paid by the respondent to Indus Gas Company, for the gas consumed at Palace Hotel, in the demised premises for the years 1974 to 1988; twenty three receipts of payment made by the respondent to Sindh Employees Social Security institution towards social security contribution on behalf of Palace Hotel for the years 1974 to 1989, fifteen paid challans of "tax on hotel" paid to Excise and Taxation department in respect of Palace Hotel for the years 1974 to 1977. Challans of the property tax paid in respect of demised premises on behalf of appellant, describing the demised property as a Hotel. The appellant have neither denied the authenticity of the above documents nor have controverted their relevance. The position that emerges from the foregoing is that undisputedly the premises was being constructed by its original owner as a hotel. At the time of its demise, the premises was merely a structure of the building, the respondent within the knowledge, rather with the permission of its owner, progressively constructed several rooms with bath rooms in the mezzanine and upper three floors of the premises. The owner never objected to the construction and/or to its nature, he rather allowed the respondent to continue to carryout construction to suit his requirements; while the respondent had already, with the earlier permission of the owner, constructed ten rooms with attached baths in the first floor, and four rooms in the mezzanine floor. The respondent thus completed the hotel premises consisting of ground plus four upper floors. The appellant at no stage stated, if at all, as to what other use/purpose the premises was ever put to. With so many rooms constructed with attached baths in the four floors of the demised premises, which admittedly is a commercial premises, the premises could hardly be more suitably used for any purpose other than a hotel. The fact that from the very beginning the premises was registered/mentioned as a hotel with the various government departments, institutions and the gas supply company, and that 'Hotel Tax' is being paid in respect of "Palace Hotel" situated. in the demised premises since 1974, is clearly evident from the documents discussed in the foregoing paragraph. At no point in time, Mir Khalilur Rehman, the original owner of the demised premises, or after his death the appellant, the present owner, objected to the hotel being housed and run in the demised premises. Had the respondent indulged in the wrong/unauthorized user of the building, in breach of the lease agreements/deeds, the owners would certainly have objected to the same. The appellant have not even alleged that they remained unaware of the premises being used for a hotel. Indeed in the fact and circumstances of the case, it
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would have been preposterous to plead so, as it is wholly inconceivable that for about forty years, the owners of a fairly large four storied commercial building, situated on a major main road, in an important commercial area of the second largest city of the Province of Sindh would not know of the same being used by the tenant for housing and running a hotel. More so when the owners also own and manage the largest media group of the country, having correspondents/reporters, and a large network all over the country, including a bureau office in that city. The appellant have also not claimed that the hotel was being run in a clandestine manner. The appellant in their legal/eviction notice dated 23.9.2000 to the respondent (Ex.32) have claimed that their Executive Director, Real Estate, along with the Manager Estate and Accounts officer and also the Hyderabad Bureau Chief visited the premises. If from noting else, the appellant's knowledge of a hotel being run in the demised premises, is clearly evident from the above assertion in the notice, as it was not possible for the appellant's visiting team of senior concerned officer not to have noticed the above facture, but if that also was not sufficient, the respondent's own claim, as contained in his reply to the above notice (Ex.33), that since the very beginning and within the knowledge of the appellant, he has been running a hotel in the demised premises under the name and style of Palace Hotel, should have awaken the appellant from their deep slumber. Had the hotel been housed and established unauthorized the appellant would have certainly objected to the same, and such misuse would have provided to them a very strong ground for the eviction of the respondent. However, the appellant did not even allege and/or pleaded the same in their two notices, being the notice under section 18 of the Ordinance, and the legal/eviction notice, and/or in their eviction application, although allegation and proof of the unauthorized user was also essentially required to save the proceeding from ouster of jurisdiction. The fact that a hotel is/was being housed and managed in the demise premises has never been an issue for the appellant, is evident also, from the fact that though in their notice under section 18 of the Ordinance, which was meant only to intimate the change in the ownership of the demised premises, the appellant raised the issue of the monthly rent, and claimed that the rent was very low as compared to the prevailing rent in respect of similar premises, in similar circumstances, in the locality and the adjoining localities, and sought enhancement of rent from Rs,7,000/- per month to Rs,75,000/- per month, and also at the same time requested the respondent to vacate the premises, but did not alleged any misuse and/or conversion of the user of the premises at all. It is also difficult to believe that a person would know the prevailing rent of premises similar to his own, which are in similar circumstances, in the locality, and in the adjoining localities, but would not know that his said building is being used as a hotel. As noted earlier, not only in their two notices but also in the eviction application, the appellant, despite the fact that the respondent in response to the eviction notice has clearly stated that since the very beginning the demised premises is being used by him for housing and running a hotel in the name and style of "Hotel Palace", the appellant, far from invoking the ground of unauthorized conversion of user, as provided by section l5(2)(iii)(b) of the Ordinance, in their written statement did not even mention as to for what purpose the premises was leased out, and/or, was or is being used, and it was only through the affidavit in evidence of their witness that they alleged unilateral conversion of the user of the premises by the respondent, which was/is not permissible under the law as none of the
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parties to a judicial proceeding can be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case cannot rest on such evidence. Even otherwise, the said allegation of unilateral conversion as contained in the affidavit-in- evidence was vague. Neither was it stated as to from what other use the premises was converted into a hotel, nor was it mentioned as to when the alleged conversion took place, absolutely no material to prove the alleged conversion was produced. Furthermore the evidence of their sole witness on the above question was/is of no avail, as the premises was admittedly leased out to the respondent in the year 1974, whereas, as admitted by the witness, he was appointed by the appellant in the year 2006 only, and further that he was not present at the time the terms of lease were negotiated between Mir Khalilur Rehman and the respondent. 17. However, ignoring all the above and the overwhelming evidence to the effect that right from the very inception the demised premises is continuously being used for housing and running a hotel therein and that there was absolutely no evidence which may even slightly suggest that the premises was every used for any purpose or business other than housing and running a hotel, the Rent Controller assumed the jurisdiction by holding as follows, and ordered eviction of the respondent on the ground of default and personal bona fide use: <i>"initially the rented premises was rented out to the opponent for business/residential purpose and not for "Hotel" purpose and the subsequent conversion of building for hotel purpose, unilaterally by the opponent would not alter the nature of premises as it was originally stood so as to exclude same from the provisions of SRPO, 1979."</i> ' The above finding/conclusion was to say the least is absolutely perverse, contrary to evidence and against the law, and therefore to say that since such finding was upheld by the Appellate forum could not have been interfered with by the High Court in its writ jurisdiction is wholly misconceived and untenable, as by holding the above the Rent Controller slipped outside his jurisdiction, it rather usurped the jurisdiction in the matter unwarranted by law and thus rendered its order a nullity and therefore it had become mandatory for the High Court to set aside the order which the Court rightly did. We, therefore, do not find any justification in interfering with the order of the High Court which we uphold. The appeal is consequently dismissed with no order as to costs. Sd. Maqbool Baqar, J ' Since I am in disagreement, I have written my separate judgment, as attached. Sd. Anwar Zaheer Jamali, C.J. Sd. Maqbool Baqar, J ' ANWAR ZAHEER JAMALI, C J.--I have had the benefit of going through the judgment authored by Mr. Justice Maqbool Baqar, the other honourable member of the Bench who had heard this appeal on 29.12.2015. With due deference, I am in disagreement with the view taken by him in his proposed judgment, therefore, I proceed to write my separate judgment in this appeal as follows:- This appeal arises out of Civil Petition No,68-K/2015, wherein leave was granted vide order dated 03.4.2015, which reads as under:- "The learned High Court, in constitutional jurisdiction, had set aside the concurrent findings of the Rent Controller and the Appellate Court and dismissed the ejectment petition of the
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Petitioner/ Landlord on the ground that since the premises in question were being used as hotel, therefore, it was excluded from the definition of the premises given in Section 2 of the Sindh Rented Premises Ordinance, 1979. The learned counsel referred to various lease deeds; the first being 18th June 1974, subsequently on 8th December 1976 and 1st June 1986, which all show that premises were rented for business/residential purposes and there was no mention that they were let out for use as hotel. 2. In the light of these documents and the submissions made, we need to examine whether learned High Court has not erred in setting aside the concurrent findings. Leave to appeal is therefore, granted. The case be listed in the next session." Briefly stated, the background of this litigation is that on 07.4.2010, the appellant instituted rent case No,13/2010, before the Court of Rent Controller-I, Hyderabad, with the averments that they are owner and landlord of the property bearing survey No,F/1165, Qazi Abdul Qayyum Road, Hyderabad (in short "the rented premises"), which is being occupied and used by the respondent Wali Bhai as tenant, having been initially let out to him by the previous owner Mir Khalilur Rehman under a written tenancy agreement dated 18.6.1974, modified vide another agreement dated 30.9.1974. After the change of ownership in their favour, on 22.7.2000 the appellant issued notice under section 18 of the Sindh Rented Premises Ordinance, 1979 (in short "Ordinance of 1979") to the respondent intimating him about such change of ownership, which was received in time, but belatedly replied on 28.9.2000. Since the earlier notice was not responded for a considerable period, in the meantime another notice dated 23.9.2000 was also issued by the appellant calling upon the respondent to vacate the rented premises on account of willful default in the payment of rent. In addition to it, the respondent was further requested to vacate the rented premises, being required for the personal use and occupation of the appellant. In the above circumstances, due to the failure of respondent to respond positively, on 07.4.2010 appellant filed R.C. No,13 of 2010 under section 15 of the Ordinance of 1979 before the Court of 1st Rent Controller, Hyderabad, seeking his eviction on the grounds of default in payment of rent from July 2000, and personal need of appellant, as detailed in paragraphs 4 and 6 of the rent case. In addition to it, in paragraph-7 appellant also took the plea that the original tenant Wali Bhai had sub-let the rented premises to some other persons. Thus, on these grounds, he was liable for eviction. 5. After service of notice on the respondent through publication, on 6.8.2010 written reply was submitted by him through his attorney, Muhammad Ashraf, wherein he admitted the receipt of both the notices dated 22.7.2000 and 23.9.2010 sent by the appellant, but apart from denial of appellant's claim as regards default in the payment of rent, their personal need and subletting, he also challenged jurisdiction of the Rent Controller with the assertion that since the rented premises were being used as "hotel", therefore, as per the definition of "premises" under section 2(h) of the Ordinance of 1979, the ejectment case was not maintainable before the Rent Controller. In his written reply, respondent further disclosed that on refusal of appellant to receive payment of rent, it was firstly remitted to him, through money-orders and thereafter it was deposited with the Rent Controller/4th Senior Civil Judge, Hyderabad, vide Rent Application No,746/2000 and in this manner the rent was being deposited since October 2000. 6. In view of the above divergent pleadings of the parties and denial of claim of the appellant by the respondent, the case was fixed by the Rent Controller for parties' evidence, during which from the appellant side, their Manager and authorized representative Ghulam
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Moinuddin filed his affidavit in evidence (Ex-25) before the Rent Controller on 23.9.2000. in his affidavit in evidence he reiterated in detail all the relevant facts of the case of appellant about the existence of relationship of landlord and tenant between the parties; commission of default in the payment of rent; personal need of rented premises by the appellant, subletting by the respondent; more importantly the fact that at no stage of the proceedings, the rented premises were ever let out to the respondent as Hotel, which might be a unilateral step taken by him, as it never formed part of the terms of any written lease agreements executed between the parties from time to time. At the stage of respondent's evidence, affidavit in evidence of Muhammad Amin (Ex-54), statedly sub-attorney of Muhammad Ashraf, who was statedly attorney of respondent, was filed on 06.5.2011 along with another affidavit in evidence of witness Muhammad Nadeem (Ex-55). After the conclusion of proceedings before the Rent Controller, arguments of both the learned Advocates for the parties were heard and vide judgment dated 16.11.201.1, the ejectment application was allowed by the Rent Controller by answering the question of non- maintainability of the rent application in the negative and other points for determination relating to service of notice under section 18 of the Ordinance of 1979; commission of willful default in the payment of rent and the personal need of the appellant in the affirmative. Aggrieved by such judgment of the Rent Controller, the respondent filed FRA No,2/12 before the Court of District Judge, Hyderabad, through his attorney Muhammad Ashraf, which was heard and dismissed by the appellate Court vide its judgment dated 11.5.2012, thereby upholding the findings of the Rent Controller on the issue of maintainability, service on notice under section 18 of the Ordinance of 1979, default in the payment of rent and personal need, and also on the question of limitation that the appeal preferred before the appellate Court was held to be barred by limitation. These concurrent findings, recorded by the two Courts below were then challenged by the respondent before the High Court of Sindh, Circuit Bench at Hyderabad through Constitutional Petition No,S-411/2012, which was heard by learned single Judge in chambers and allowed with the observation that since the rented premises were being used as a hotel, therefore, in view of the definition of the "premises" under section 2(h) of the Ordinance of 1979, the Rent Controller had no jurisdiction; moreover, since the orders of the two fora below were without jurisdiction, therefore, the question of limitation was also not a hurdle for the High Court in allowing such Constitution Petition. In the present appeal, as could be seen from the above reproduced leave granting order, the only moot point is "whether by virtue of definition of premises under section 2(h) in the Ordinance of 1979, subsequent conversion of rented premises into hotel, though originally let out for business/residential purposes, will oust the jurisdiction of the Rent Controller and the High Court was justified in forming such conclusion". In this regard, in the first place it will be apt to take benefit of the findings of the two Courts below on this point, recorded in their respective judgments, which read thus:- Findings of the Rent Controller: Points for Determination. ' Point No,1: Whether the rent application is not maintainable at law? ............................................................ Point No,1: ' Burden of this point lies upon the opponent. Learned counsel for opponent Mr. Syed Ahsan Ali Shah argued that instant rent application is not…
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