1983 PLP 497 (CLC)

The above two appeals involve common questions of law and fact hence are being decided by one judgment.

2. These appeals have been filed from the orders dated 9-9-1980 and 26-3-1980 passed by the Rent Controller striking off defence of the appellant for non-deposit of rent under section 16(2) of the Sind Rented Premises Ordinance, 1979.

3. The facts of F. R. A. No. 811/80 are that the appellant W. D. Wahidy had taken the premises in dispute on rent from the respondent. The latter filed ejectment proceedings before the learned Rent Controller Karachi who on 14-9-1978 passed an order directing the appellant to deposit arrears of rent amounting to Rs. 2,500 before 15th of October, 1978 and further to deposit future rent at Rs. 1,000 per month before 15th of each month. The appellant committed default for two months, that is, August and September, 1979. The respondent thereupon filed an application requesting the Rent Controller to strike - off the defence of the appellant under section 16(2) of Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance of 1979). After hearing the parties the learned Rent Controller struck off the defence of the appellant and granted ejectment application of the respondent vide order dated 9-9-1980. Hence this appeal.

4. In F. R. A. No. 220/81 the appellant Syed Ali Kaiser is tenant of respondent Ghulam Moinuddin who had filed an ejectment application against the former in the Court of Rent Controller, Karachi. On 23-11-1970 the Rent Controller passed an order directing the appellant to deposit future rent at the rate of Rs. 50 per month before 15th of each month. The appellant committed default in depositing rent for February and March, 1979. Hence an application was moved for striking off his defence under section 16(2) of the Ordinance 1979. After hearing the parties the learned Rent Controller struck off the defence of the appellant on 26-3-1980 by the impugned order, and further directed the appellant to hand over possession of the premises in question to the respondent,

5. Mr. Rehmat Ellahi, learned counsel for the appellant in both the appeals ,has urged that the order for depositing of arrears of rent was passed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 19:9 (hereinafter referred to as the Ordinance of 1959) which was repealed on coming into force of the Ordinance of 1979 on 21-11-1979. Section 16(2) of Ordinance of 1979 corresponds to section 13(6) of the Ordinance of 1959, with the difference that in section 13(6) the rent is to be deposited before 15th of every month while according to section 16(2) of the Ordinance of 1979 the rent is to be deposited on the 10th of each month. Therefore it has been argued that the .tentative rent orders which were passed under section 13(6) of the Ordinance of 1959 cannot be treated as orders under section 16(2) of the Ordinance, 1979; nor the learned Rent Controller was competent to strike off' the defence of the appellant, under the Ordinance of 19.'9.

6. In this connection he has also referred to section 27 (3) of the Ordinance, 1979. Subsection (3) was added to the Ordinance of 1979 by Sind Rented Premises (Amendment) Ordinance, f980 on 21-1-1980. This subsection reads as under (3) "All other cases instituted under the Ordinance mentioned in subsection ((1) P L D 1970 S C 264) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance." Learned counsel has in view of the above-amended section 27(3) of the Ordinance of 1979, argued that the orders passed under Ordinance of 1959 are not capable of being executed under the Ordinance of 1979, because there is material 4ifference between the two sections relating to the strike off the defence under the two laws.

7. At The face of it, the objection of the learned counsel for the appellant is misconceived. In both the cases the appellants had committed default before coming into force of the Ordinance of 1979. Hence the penalty or liability under section 13 (6) of the Ordinance, 1959 had already been incurred by them before the Ordinance of 1979 came into force. The repeal of Ordinance of 1959 by the Ordinance, 1979 shall not have the effect of exonerating the appellants of the liability which they have already incurred under the repealed law. There is nothing in section 27(3) of 'the Ordinance of 1979 to suggest that a tenant who bad committed default under section 13(6) of the repealed law (sic). It is only by chance that the learned Rent Controller, who could have disposed of the application of the respondents for striking off the defence before coming into force of the Ordinance, 1979, that is before 27-11-1979, could not do so and passed such order after coming into force of the new law. The order which the' learned Rent Controller was capable of passing before coming into force of the Ordinance of 1979, could have been passed as well after coming into force of this law not withstanding the fact that the old law stood repealed.

8. In support of the above view reference may be made to section 6 of .the General Clauses Act, 1897 which corresponds to section 4 of the West Pakistan General Clauses Act, 1956. It would be advantageous to reproduce section 4(e), which is relevant for our purpose, which runs as under "Effect of repeal:(1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not: (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed."

9. Learned counsel for the respondent have in this connection relied on the case of Sona v. State and others ((), which related to the effect of repeal of the Frontier Crimes Regulation, 1901 While dealing with this question it was observed by the Supreme Court as under :- "One of the effects of the repeal, is that it shall not affect any investi gation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty or punish ment may be imposed as if the' Repealing Act or Regulation had not been passed. It is therefore, quite clear that all the investigations or proceedings which are contemplated are to continue as if Repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rule of procedure in force at the commencement of the trial and the same procedure has to be, followed: '

10. Reference has also been made by the learned counsel of the respon dents to the case of Saeed Ahmed v. The State (1). In the above case, during the pendency of appeal before the High Court., the Penal Code was amended and section 165(B) was introduced. It was argued that the High Court should have decided the guilt of the appellants not on the basis of the law as it is stood on the date that he committed the offence but in accordance with law as it stood on the date when his appeal was decided. The argument was repelled by the Supreme Court in the following words :- "It will be observed that in accordance with this section all rights, liabilities, etc. continue in spite of repeal and all proceedings can be taken and continued which could have been taken or continued if the repealing Act did not come into force. When I asked learned counsel for the appellant what he had to say in reply to this section his only answer was that this section applies to a repeal and not to an amendment and before us there is a case of an amendment. Every amendment contains a repeal for the law in the form in which it stood previously disappears anti a new law comes into force. There is no difference at all between a case where the Legislature says that a particular section wilt stand repealed and its place will be taken by a new section, if the new section is the same as the amended section. Whenever there is an amendment the Legislature could very well have said that the previous provision would be omitted and the provision as amended would be inserted. There is no reason for giving any different effect .to these two methods, which achieve the same result. At the same time there is no difference in principle between repeal and amendment and if in the case of a total repeal a proceeding can be continued as if there was no repeal why should the proceeding not be continued in the case of an amended provision." In view of the above legal position it is quite clear that liability which the appellants had incurred before coming into ford of the Ordinance of 1979, shall remain intact in spite of the repeal of the Ordinance of 1959 and shall g be enforceable even after this repeal as if the same has not been repealed on' the day when the impugned orders were passed. It is immaterial that the two respondents, who had made applications for striking off defence of the appellant bad wrongly described the provisions of law under which the applications were made, that is, section 16 (2) of the Ordinance of 1979, which should have been section 13(6) of the Ordinance, 1959. Section 27 of the Ordinance of 1979 as amended by the amending Ordinance, 1980, shall not B affect the liability which a defaulting tenant has incurred under section 13(6) of the Ordinance, 1959 before coming into force of the Ordinance of 1979. No exception, therefore, can be taken to the orders of the learned Rent Controller who had struck off defence of the appellant on account of their default in depositing the rent. No other point has been urged in support of these appeals. Both the appeals are therefore dismissed with costs. M. Y. M. Appeals dismissed.