1993 PLP 1298 (MLD)

The Government of Sindh by the Notification issued under section 3 of the Sindh Rented Premises Ordinance, 1979 on 29th July, 1986, exempted the premises of colleges and schools taken over under Martial Law Regulation No.118 of 1972 from the application of the said Ordinance. Miss Aruba Kamal on 31‑1‑1988 issued a notice to the Appellants to quit the premises within one month and determined the lease under section 106 of the Transfer of Property Act. She also complained that she was being paid rent less than what was agreed between the original parties. The appellants did not vacate the premises and she filed a suit in the Court of Senior Civil Judge, Karachi. Her suit was registered as Suit No.526 of 1988. The applicants herein as the defendants in the suit contested the suit and advanced a number of pleas. On the basis of pleadings of the parties the Trial Judge framed the following issues:‑‑‑ "(1) Whether the tenement in question is governed by Sindh Rented Premises Ordinance, 1979, if not, what is the effect? (2) Whether the plaintiff legally terminated the lease of the defendant after giving one month's notice under section 106 of the' Transfer of Property Act? (3) Whether the plaintiff is entitled to the relief of possession of the tenement in question? (4) What should the order be?" The Attorney of the Respondent was examined in the suit who produced his Power of Attorney, Tenancy Agreement, Notice and some other documents while Zafar Hashmat, Head Master of the School was examined on behalf of the Applicants herein. The Trial Judge, Ist Senior Civil Judge, Karachi (East), by her judgment passed in the suit (Suit No.526 of 1988) on 11‑11‑1989 decreed the suit filed by the respondent. Being aggrieved by the judgment and decree mentioned herein the Applicants filed an appeal (Civil Appeal No.12 of 1990). The District Judge, Karachi (East) by his judgment passed on 1‑9‑1990 found no merit in the Appeal and dismissed it. It is against this last judgment that the Applicants have filed this Application under section 115, Civil Procedure Code. Mr. K.M. Nadeem, Assistant Advocate‑General, Sindh, in support of this Application has advanced the following contentions:‑‑‑ (l) That the suit in case of school nationalised under Martial Law Regulation 118 is not maintainable. (2) That section 114 of the Transfer of Property Act and not section 106 of the said Act will be applicable to the facts of the present case. (3) That the respondent had waived her right to receive rent of Rs.2,000 per month as for 15 years she kept silent and accepted the rent at the rate of Rs.990 per month. (4) In any event in case rent at the rate of Rs.2,000 per month is paid for all this period the tenancy in favour of the Applicants shall be revived and continued to be enforced. In support of his above contentions he referred to the cases published in PLD 1965 Kar. 69; PLD 1965 SC 681; 1986 MLD 2743 and AIR 1942 Cal.

406. Mr. M. Shah, Advocate for the respondent, pointed out that no ground has been urged by the Advocate for the Applicants to enable this Court to exercise its jurisdiction under section 115, Civil Procedure Code and disturb the concurrent findings of the two Courts below. He contended that as the provision of the Sindh Rented Premises Ordinance, 1979 was no more applicable to schools and colleges taken over under MLR 118, the lease of the premises could only be determined under the Transfer of Property Act. The respondent has rightly determined the lease and was entitled to receive its possession. He referred to the case reported in 1983 CLC 1906 in support of his contention. Mr. K.M. Nadeem, the Assistant Advocate‑General, Sindh was not able to support his first contention with any reference to any law or precedent. He merely referred to paragraphs 14 and 15 of Martial Law Regulation

118. On plain reading of the two pafagraphs of Martial Law Regulation 118 it cannot be said that the jurisdiction of Civil Courts to determine rights and liabilities of landlord and tenant under the Transfer of Property Act, 1882 in respect of nationalised schools are barred in any manner. The tenancy in respect of the premises in question was created through an agreement executed between the parties on 5th January, 1972 (Exh.P.2). The tenancy was initially for a period of two years and was renewable at the option of the lessee for another period of two years on the same terms and conditions as provided in the agreement. If lessee remains in possession of a premises after the lease stands determined by efflux of time, the lessee in absence of any agreement to the contrary will be considered to be holding over the lease and in that event the lease will be taken to be from month to month under section 116 of the Transfer of Property Act, 1882 and in such an event the provisions contained in section 106 of Transfer of Property Act, 1882 will be attracted. Section 114 of the Transfer of Property Act applies only in a case where lease of an immovable property is determined by forfeiture due to non‑payment of rent or any other breach of terms of lease during the pendency of the period of lease. This not being the case the provision contained in section 114 of the Transfer of Property Act, 1882 will have no application. The suit filed by the respondent has been decreed not on account of failure of the applicants to pay the proper rent but because the lease in their favour has been determined by the respondent under section 106 of the Transfer of Property Act. The Sindh Rented Premises Ordinance, 1979 is a special law that regulates the relationship of landlords and tenants where applicable. Its application to the tenancy in respect of schools and colleges has been excluded by valid notification issued by the Government of Sindh. Therefore in absence B of application of special enactment to the facts of the present case the dispute arising out of the rights and liabilities of landlords and tenants will be governed by the provisions contained in the Transfer of Property Act, 1.882 being the general law. By taking this view I am fortified by the view taken in the case of Province of Sindh and 2 others v. Nisar Ahmed 1983 CLC 1905. A Rent Controller on issuance of a Notification by the Sindh Government excluding its jurisdiction to rented premises of schools and colleges in Sindh taken over under Martial Law Regulation 118 cannot adjudicate upon any dispute between landlords, and tenants in such cases. In that event such disputes are governed by the provisions contained in Transfer of Property Act, 1882. For the foregoing reasons Mr. K.M. Nadeem, the Assistant Advocate General, Sindh, has not been able to point out any ground which can enable this Court to disturb the concurrent findings of the two Courts below in p exercise of power contemplated by section 115, Civil Procedure Code. This revision application is therefore dismissed with no order as to the costs. H.B.T./G‑320/K Revision dismissed.