P L D 1971 Karachi 84 (PLP)

Dates of hearing: 10th November 1969 ; 11th and 20th May 1970. This appeal raises the question of the effect of the West Pakistan Urban Rent Restriction (Second Amendment) Amending Ordinance, 1966 (Ord. XXII of 1966) on proceedings which were instituted under the Karachi Rent Restriction Act, 1953 but stood transferred to the Controller appointed under the West Pakistan Urban Rent Restriction Ordinance, 1959. In brief the facts are these:

2. The appellant is in occupation, according to him as tenant, of the premises bearing No. 103/3‑85, Mirza Kaleej Beg Road, Karachi. On 23‑1‑1963, the respondent the landlord of these pre mises, applied for the appellant's eviction under the Karachi Rent Restriction Act, 1953 (as amended by Karachi Rent Restriction (Amendment) Ordinance No. 48 of 1962) before Mr. Naseer Ahmad, who then held the charge of the office of the Controller under the said Act and was also the Additional Civil Judge at Karachi. But on the application of the West Pakistan Urban Rent Restriction Ordinance, 1959, to the territory of Karachi, by reason of the provisions of the West Pakistan Urban Rent Restriction (Second Amendment) Ordinance (38 of 1962), the respondent's application stood transferred to the Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959. On 1‑7‑1963, when this last Ordinance had already come into force in Karachi, according to the statement of counsel at the Bar, Mr. Naseer Ahmad made an order for deposit of tentative rent, which was followed by order made on 29th August 1963 by which issues between the parties were framed by Mr. Naseer Ahmad. In January 1964, the case was transferred to the III Civil Judge at Karachi, who also acted as Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959. This tribunal made an order of ejectment against the appellant on 23‑1‑1965, and against this order a First Appeal was filed on 20‑2‑1965 which was, however, dismissed on 13‑10‑1966. A Second Appeal to this Court was dismissed on 19‑12‑1966 and the application for permission to file a Letters Patent Appeal was resulted in dismissal. The respondent then com menced execution proceedings against the appellant and it was in the course of these proceedings that the latter, for the first time, raised the question that the order of eviction passed against the appellant lost validity with the promulgation of the West Pakistan Urban Rent Restriction (Second Amendment) Amending Ordinance, 1966 on 11th May 1966. To appreciate this argument it will be convenient to first refer to the provisions of the West Pakistan Urban Rent Restriction (Second Amendment) Ordinance, (38 of 1962). For the purposes of this case it is section 3 (2) (a) (i) which is material and this provision reads as follows: "3(2)(a)(i).‑All proceedings other than the proceedings under section 14 which immediately before the commencement of this Ordinance were pending with the Controller, shall, if not inconsistent with the provisions of the said Ordinance, stand transferred to and be continued before the Controller appointed under the said Ordinance, as if the same were instituted under the provisions of the said Ordinance." Now, under the West Pakistan Urban Rent Restriction Ordinance, 1959, in its application to Karachi as wall as in its application to other territories of West Pakistan, only a Civil Judge could be appointed Controller under this Ordinance. Though Mr. Naseer Ahmad was appointed to the office of the Controller in Karachi under the West Pakistan Urban Rent Restriction Ordinance, 1959, by a notification of the West Pakistan Government issued on 25‑6‑1964, objections were raised in several cases that, as it would appear from the said notification, Mr. Naseer Ahmad was only an Additional Civil Judge and, therefore, his appointment to the office of Controller under the West Pakistan Urban Rent Restric tion Ordinance, 1959, was invalid. The result of these objections was that doubts began to be entertained with regard to the validity of the orders passed by Mr. Naseer Ahmad as Controller in Karachi, so much so that an Ordinance had to be promulgated on 11th May 1966 to give validity of the orders of Mr. Naseer Ahmad, this Ordinance being Ordinance XXII of 1966 referred to above. But it would appear that this Ordinance itself led in some way to confusion and complications as section 2(i) of this Ordinance repealed sub‑clause (i) in clause (a) in subsection (2) of section 3 of Ordinance XXXVIII of 1962. The repeal was made in the following language: "(i) in subsection (2), in clause (a), sub‑clause (i) shall be omitted and shall be deemed always to have been so omitted." It was, therefore, contended that since the repeal provided that section 3(2)(a)(i) of Ordinance XXXVIII of 1962 shall not only be omitted but shall be deemed always to have been so omitted, the proceedings instituted under the Karachi Rent Restriction Act, 1953 could not be deemed to have been transferred to the Con troller under the West Pakistan Urban Rent Restriction Ordi nance, 1959, and as Karachi Rent Restriction Act, 1953 itself has been repealed and there is no Controller to exercise powers and functions thereunder, all such proceedings should be treated as having lapsed with retrospective effect, that is, from the day when the West Pakistan Urban Rent Restriction Ordinance, 1959 was made applicable to Karachi.

3. On its face this above argument would attract notice. But, it would seem, that in advancing this argument, note has not been taken of clause (ii) in section 2 of Ordinance XXII of 1966, by which clause a new subsection, that is, subsection (3), A was added, with retrospective effect, after subsection (2) of section 3 of Ordinance XXXVIII of 1962. This new subsection reads as follows "(3) Notwithstanding anything contained in the said Ordinance, or in any decision of a Court, any person exercising the powers of a Controller under the said Act, immediately before the coming into force of this Ordinance, shall continue to exercise such powers under the said Ordinance unless otherwise notified by the Provincial Government in the official Gazette, and any proceedings taken by such person under the provisions of the said Ordinance or any decision given by such person in such proceedings shall, be deemed to have been proceedings or decision, as the case may be, of a Controller under the said Ordinance." But the appellant's learned counsel, Mirza A. Rashid, took the view that this new subsection also could not validate the proceed ings instituted under the Karachi Rent Restriction Act, 1953. The question, in substance, is whether the effect of section 3(2) (a) (i) of Ordinance XXXVIII of 1962, providing for transfer of proceedings instituted under the Karachi Rent Restriction Act, 1953, to the Controller under the West Urban Rent Restriction Ordinance, 1959, has been negatived altogether by the promulga tion of Ordinance XXII of 1966 which repealed the above pro vision of Ordinance XXXVIII of 1962 from the very day this Ordinance, that is, Ordinance XXXVIII of 1962, was promulgated. In my opinion, such an interpretation cannot reasonably be given to the repealing clause in Ordinance XXII of 1966 in view of the addition of subsection (3) to section 3 of Ordi nance XXXV I II of 1962, which subsection though not happily worded, is still susceptible to a reasonable interpretation being given to it. This subsection may be divided into two parts as follows Part (a)‑--Notwithstanding anything contained in the said Ordinance, or in any decision of a Court, any person exercising the powers of a Controller under the said Act, immediately before the coming into force of this Ordinance, shall continue to exercise such powers under the said Ordinance unless otherwise notified by the Provincial Government in the official Gazette ; Part (b)‑--Any proceedings taken by such person [that is, the Controller referred to in part (a)] under the provisions of the said Ordinance or any decision given by such person in such proceedings shall be deemed to have been proceedings or decision, as the case may be, of a Controller under the said Ordinance. Taking first the Part (a) of the new subsection (3), it will be noted that the Legislature provided that the Controller exercising powers under the Karachi Rent Restriction Act, ‑ 1953, shall continue to exercise powers under the West Pakistan Urban Rent Restriction Ordinance, 1959, on this Ordinance coming into force in Karachi. The Ordinance of 1959 came into force in Karachi on the repeal of the Karachi Rent Restriction Act, 1953. Thus, from the date the Karachi Rent Restriction Act was repealed and the 1959‑Ordinance came into force in Karachi, Mr. Naseer Ahmad could continue to exercise the powers of Controller only under the said Ordinance. He could not be said to have conti nued as Controller under the Karachi Rent Restriction Act, 1953 also. This of necessity would imply that proceedings instituted under the Karachi Rent Restriction Act, 1953, stood transferred to the Controller appointed under the West Pakistan Urban Rent Restriction Ordinance, 1959. This view gains strength from what is contained in part (b) of the new subsection (3), whereunder it is provided that proceedings taken or decision given by the person who is deemed to be a Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959 by reason of what is contained in para. (a) of the new subsection (3), shall be deemed to have been proceedings or decisions, as the case may be, by a Controller under the Ordinance of 1959. Thus, proceedings which were instituted before Mr. Naseer Ahmad under the Karachi Rent Restriction Act, 1953, have to be treated as proceedings before a Controller appointed the West Pakistan Urban Rent Restriction Ordinance, 1959. This again would Imply that proceedings instituted under the Karachi Rent Restric tion Act, 1953 have to be treated as if these were proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959. There can be no other reasonable interpretation of subsection (3) which was added in 1966 to section 3 of Ordinance XXXVIII of 1962. If this view is taken, it would follow that sub‑clause (i) in clause (a) in subsection (2) of section 3 of Ordinance XXXVIII of 1962 had become redundant and, therefore, had to be repealed in the language which is used in section 2(i) of Ordinance XXIl of 1966. Both these provisions are in the nature of saving clauses and, therefore, when the new subsection (3) of section 3 of Ordinance XXXVIII of 1962 came into force, sub‑clause (i) in clause (a) in subsection (2) of the same section had to go and was accordingly repealed as noted above. On this interpretation it cannot be contended that proceedings instituted under the Karachi Rent Restriction Act, 1953 lapsed on the coming into force of Ordinance XXII of 1966 or that, for the same reason, orders of eviction made in these proceedings lost validity altogether and accordingly became unenforceable. That this is the correct view of the effect of Ordinance XXII of 1966, gains support from the decision of their Lordships of the Supreme Court in Abubakar A. G. Zakria v. Muhammad Ramzan (1968 S C M R 777) and the decision of my Lord the Chief Justice in Habibullah v. Muhammad Sharif (P L D 1968 Kar. 391).

4. There is still another view which can betaken of the controversy before me. It is no doubt correct that proceedings for the appellant's eviction were instituted under the Karachi Rent Restriction Act, 1953, but these proceedings were transferred to the III Civil Judge, who also exercised powers as Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959, in January 1964 and it is this tribunal which passed the order of eviction against the appellant. It would not be unreason able to say that the proceedings for the appellant's eviction may be deemed to have been instituted in January 1964 before the III Civil Judge, and accordingly these proceedings should be deemed to be proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959. If this view is taken; then also the appellant's contention before me loses force.

5. Before concluding, I would advert to an argument can vassed before me by Mr. Haji Muhammad Memon, respondent's Advocate, who pointed out that the appellant filed his First Appeal against eviction on 20‑2‑1965 under the West Pakistan Urban Rent Restriction Ordinance, 1959. The Second Appeal to this Court also was filed under this Ordinance. The First Appeal was dismissed on 13‑10‑1966, when Ordinance XXII of 1966 was already in force, and the Second Appeal was dismissed by this Court on 19‑12‑1966. But in neither of these proceed ings, nor in the proceedings on the application for permission to file a Letters Patent Appeal, the appellant advanced the argument that the order of eviction had become inoperative and ineffective with the coming into force of Ordinance XXII of 1966. This argument was raised for the first time in the execution proceedings, and as I have held above, the argument, though attractive at first sight, carries no substance if the new subsection (3), added to section 3 of Ordinance XXXVIII of 1962, is carefully examined and analysed.

6. With these observations, I hold that this appeal has no substance and is accordingly dismissed. A. E. Appeal dismissed.