1986 PLP 2964 (MLD)

Samiuddin Sami for Appellant. Muzamil Siddiqui for Respondent. Date of hearing: 13th October, 1988. This case is fixed for hearing of C.M.A. No 195f of 986 only. However, with the consent of the learned counsel for the parties I have heard the main revision application which is disposed of as follows:‑ The petitioner has challenged the order of 4th Additional District Judge, Karachi, whereby he confirmed the order of trial Court rejecting the plaintiff in Suit No.260 of 1986, under Order VII, Rule 11(d), C.P.C. The respondent who is landlord of the premises occupied by the petitioner, filed ejectment Case No.4629 of 1982 under the provisions of Sind Rented Premises Ordinance, 1979, seeking eviction of petitioner on the ground, of default in payment of rent. The Rent Controller passed order in the above case directing the petitioner to deposit arrears of rent as well as future rent until disposal of the case which the petitioner did not comply with the result his defence in the case was struck off and he as ordered to be evicted from the premises. In appeal against the order of Rent Controller before this Court bearing, F.R.A. No.318 of 1985, it was urged by the petitioner that after passing of ejectment order against him, the respondent by virtue of letter, dated 2‑10‑1984, created a fresh tenancy. This contention of the petitioner was disposed of by the learned Single Judge (as then he was) while rejecting the appeal with the following observation:‑-- "How, so far as the impugned order is concerned, no fault could be found with it and the same is according to law. As regard acceptance of rent or any agreement for future tenancy of increase in rent I may state that I am not concerned with it. This question can be raised in proper proceeding, if necessary." The petitioner accordingly after dismissal of his appeal instituted Civil Suit No.260 of 1986 in February, 1986 claiming declaration that he is tenant of the respondent in accordance with a new agreement of tenancy, dated 2‑10‑1984, which came into existence after passing of the ejectment order. The respondent in the above suit moved application for ejection of the plaint under Order VII, Rule 11, C.P.C. on the ground that in view of the amendment in the Sind Rented Premises Ordinance, 1979, introduced by Amending Act 1 of 1986, the suit instituted by the petitioner is not maintainable. Both the Courts below accepted this contention and rejected the plaint of the petitioner holding that the suit instituted by the petitioner is barred under section 22 of the Ordinance as amended by Act 1 of 1986. It is not disputed before me that the alleged agreement relied by the petitioner is, dated 2nd October, 1984 and the suit on the basis of this alleged agreement was instituted in February, 1986, while the amendment in section 22 of the Ordinance relied by the respondent before the Courts below came into effect on 12‑5‑1986. The learned counsel for the petitioner contends that the above amendment relied by the respondent did not bar the suit of the nature which was before the trial Civil Court and in any case this amendment was not applicable to the case of the petitioner as it came into being after institution of the suit. The learned counsel for the respondent on the other hand contended that the amendment introduced in section 22 of the Ordinance being procedural in nature, was retrospective in its operation and, therefore, applied to the suit of the petitioner which was pending on the date of enforcement of the amendment. It is accordingly urged that the courts below rightly rejected the plaint under Order VII, Rule 11, C . P. C . I am unable to accept the contention advanced by the learned counsel for the respondent. The amendment relied upon by the learned counsel for the respondent before the Courts below came into effect on 12th May, 1986 while the suit was instituted in the month of February, 1986. The amendments reads as under:‑-- "22, Execution of Order.‑‑Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit. Explanation_.‑‑In the execution proceedings, relating to the order of ejectment, no payment compromise or agreement shall be valid unless such payment, compromise or agreement is made before or with the permission of the authority passing the order." A plain reading of the above amendment will show that it governed the execution of the order passed by the Controller. It provides that a final order passed under the Ordinance is to be executed by the Controller and all questions relating to execution, discharge or satisfaction of the order shall be determined by the Controller and not by a civil suit. It is further provided that during the execution proceedings of the order passed by the Controller no payment, compromise or agreement in relation to the order will be accepted unless such payment, compromise or agreement case made before or with the permission of the authority passing the order. It is contended, by the learned counsel for the respondent that as all questions relating to execution, discharge and satisfaction of the order of the Rent Controller are to be determined by the Controller in execution proceedings and institution of a civil suit in this behalf is prohibited the suit filed by the petitioner was not maintainable. It is a settled rule of interpretation that the provision relating to ouster of jurisdiction of Court are to be strictly construed. and in the absence of a clear intention in the statute, the pending proceedings are not affected by such legislation. There is nothing in the language of Amending Act 1 of 1986 to indicate that the Legislature intended to interfere with the existing rights of the parties in this behalf. The Amending Act was promulgated on 12th May, 1986 and according to subsection (2) of section 1 it came into force on that date. There is nothing in the above Act to indicate that this amendment was to take effect retrospectively so as to destroy the right of a party which was already in existence on the date of enforcement of this Acts I am, therefore,' of the view that amendments introduced on 12th May, 1986 could not have the effect of barring, the remedy by way of suit already resorted to by the petitioner before coming into force of these amendments. Learned counsel was unable to point out any other provision in the Ordinance of 1979 which barred the jurisdiction of Civil Court to entertain the dispute of the like nature. I accordingly accept this Revision set aside the order of the two Courts below and remand the case back to the trial Court with the direction to dispose of the suit of petitioner in accordance with law. There will be no order as to costs. The learned counsel for the petitioner stated that his application for grant of temporary injunction was not decided by the trial Court in view of the rejection of the plaint. If it is so, it shall be deemed to be pending and will be disposed of by the trial Court according to law. H.B.T. Revision accepted .