P L D 1966 (W (PLP)

Respondent No. 1 in person. Dates of hearing: 28th February, 2nd and 3rd March 1966. The appellant is the tenant of the respondents. The rent fixed was Rs. 30.00 per month. The appellant applied on the 7th of April 1959 for the fixation of the fair rent and the Rent Controller by his order dated the 15th of February 1960 fixed the rent at Rs. 20.00 per month. The appellant had already paid the rent at the rate of Rs. 30.00 per month from the 15th of August 1956 to the 15th of January 1960. The appellant on the 18th of March 1960 applied to the Rent Controller for permission to deduct the amount which he had paid in excess of the fair rent. He claimed the deduction of Rs. 410.00. The Rent Controller by his order dated the 24th of April 1963, disallowed the claim and rejected the application. This is an appeal against that order.

2. The question which falls for determination is whether the appellant is entitled to claim the deduction of the rent which he paid in excess of the fair rent. The learned counsel contends that the tenant can always claim the deduction of an excess rent which he paid within six months of the payment and relies on the proviso to section 8 which reads as, "Provided that the tenant before making such deduction obtains the approval of the Controller by an application made to him within six months of the said date" and also on the explanation to the same section which reads as, "In computing the said period of A months the time spent after the date of payment, in the proceedings for determination of fair rent shall be excluded." To deal with this contention it is necessary to reproduce also the operative part of section 8 which reads as: --‑ "Rent which should not have been paid may be recovered‑ (P L D 1960 Kar. 532) Where any such has, before the date of publication of this Ordinance been paid by the tenant, which sum is by reason of the provisions of this Ordinance irrecoverable, such sum may, without prejudice to any other method of recovery, be deducted by the tenant by whom it was paid, or by his legal representative, from any rent payable by him to such landlord or to his legal representative." The appellant can take advantage of this provision only if he had paid any sum which was irrecoverable by virtue of the provisions of this Ordinance. Under the Ordinance, the tenant is liable to pay the rent which he had agreed to pay to the landlord and his liability continues until a fair rent is determined on his application by the Rent Controller under section 4 of the Ordinance. In Haji Abdul Karim and another v. Haji Dawood & Co. (1) it was held, "A contract between a landlord and a tenant for payment of a certain sum of money as rent is perfectly valid contract under the Contract Act. The Rent Restriction Act merely lays down the method whereby the rent can be reduced by a determination by the Rent Controller and the effect of section 7(b) of the Act is that notwithstanding the contractual rent the tenant shall be deemed to have contracted to pay only the fair rent but this section operates only when the fair rent had been determined". In the absence of the fair rent payable for a. particular building the contractual rent is the only rent payable by the tenant and nothing less. In this view of the matter,) the rent which the respondent received from the appellant before the fair rent was determined by the Rent Controller on the 15th of February 1960 was the agreed rent which he was entitled to receive and the appellant was under an obligation to pay. It cannot, therefore, be said that any part of that rent, even if it was in excess of the fair rent which was subsequently so determined, was irrecoverable under the provisions of section

8. The precise question was considered in Krishan Lall Malhotra v. Muhammad Sadiq(P L D 1955 Lah. 288) and it was held, "clause (a) of first subsection (of section 6) prohibits claiming or receiving in addition to fair rent any premium, or (2) other like sum, or (3) any sum by way of rent in excess of the fair rent. The prohibition to receive any sums makes them `irrecoverable' by the landlord. But the prohibition comes into play and the sums become irrecover able only `when the Controller has fixed the fair rent'. There is no bar to the landlord receiving these sums before the fixing of the fair rent and, therefore, before that even they are recove rable: . . ." The same view was taken in Ghulam Muhammad v. Ali Siraj (P L D 1964 Lah. 15). Learned counsel for the appellant, however, argued that the proviso and explanation to section 8 were not considered in that case, and it was only based on the decision in Krishan Lall Malhotra v. Muhammad Sadiq and that case was decided with reference to sections 6 and 8 of the Rent Restriction Ordinance of 1947 which did not contain either the proviso or the explanation. It may be noticed that in Ghulam Muhammad v. Ali Siraj section 8 was reproduced in extenso including the proviso and the explanation. The learned Judge did not discuss the proviso and the explanation, and in my opinion rightly so, because the same was not relevant for the purposes of that case. What was being interpreted was the term "which sum is by reason of the provisions of this Ordinance irrecoverable". The proviso and explanation do not in any way change the construction which has been placed on the words "sum irrecoverable".

3. Learned counsel then argued that if section 8 was not applicable to the rent paid in excess of the fair rent, it was a useless provision, and was not capable of being applied to any situation. In putting forth this argument he completely lost sight of section

7. Section 7 provides, "No landlord shall, in consideration of the grant, 'renewal or continuance of a tenancy of any building or rented land, require the payment of any fine, premium or any other like sum in addition to the rent." Under this section whether or not a fair rent is determined, the landlord cannot claim any fine, premium or any other like sum in addition to the contractual rent in consideration of either the grant or renewal or continuance of a tenancy of any building or rented land. It is prohibited to a landlord to receive any amount in disregard of section

7. The amount paid by a tenant to the landlord in contravention of section 7 is admittedly an amount which is irrecoverable. For the. recovery of such amount section 8, of course, can be pressed into service. The argument put forth is untenable.

4. Learned counsel for the appellant then relying on clause (c) of section 6 of the Ordinance, which was added by section 3 of Ordinance .XXI of 1965, claimed the refund of the amount which he paid in excess of the fair rent from the 7th of April 1959 when he made the application till the 15th of February 1960. Clause (c) reads as:

"(c) any sum in excess of the fair rent paid in respect of any use or occupation of the building or rented land from the date of application for the fixation of fair rent shall be refunded to the person by whom it was paid or at the option of such person, otherwise adjusted." The question which arises is whether this amendment has a retrospective effect and will it apply also to the applications which were submitted prior to the amendment. Under the law existing prior to this amendment, the landlord was entitled to receive the agreed rent and it was only after the Court had fixed and determined the fair rent, that he could receive the rent so determined. It was, therefore, a substantive right of the landlord to receive the agreed rent for the period prior to the order of the Rent Controller under section

4. After the addition of clause (c) to subsection‑(1) of section 6, the tenant can claim the refund of the amount which he may have paid in excess of the fair rent from the date of application for the fixation of fair rent. The amendment does not say that it will have retros pective effect. It is a well established principle of the Interpretation of Statutes that law affecting the substantive rights of the persons cannot have a retrospective effect unless it is so provided in the Act itself or it could be established by necessary intendment. There is nothing in the amendment to suggest that the Legislature intended that it should be retrospective in operation. The amendment can, therefore, apply to those cases which may be filed after Ordinance XXI of 1965 came into force. It does not apply to other cases and for that reason has no application to this case which was filed earlier.

5. The case can be considered from another aspect also. The appellant had made an application only under section

8. His application was dismissed and the appeal against that order also does not merit to be accepted. He did not make any application under clause (c) of section 6 for the obvious reason that this provision was brought on the Statute Book subsequent to his filing the petition and in fact during the pendency of that appeal. There was no cause before the Rent Controller for the payment of any amount under section

6. In appeal against an order under section 8, he cannot take any ground based on section 6 nor he can be given any relief in respect of that in these proceedings. Learned counsel for the appellant, however, relied on Keays Byrne v. M. Obaidullah Khan (P L D 1961 Lah. 256) where it was held, "An appeal is by way of re‑hearing the original proceedings and the appellate Court can make such order as the trial Judge could have made if the case bad been heard by him at the date of the hearing of the appeal. We have; therefore, no hesitation in holding that we are entitled to apply the provision of the Rent Restriction Ordinance to the facts of the present case. Applying the new law, we are of the opinion that the decree for the ejectment of the appellant cannot be allowed to stand". There can be no dispute about the proposition laid down in that case. This, however, has no application in this case. The appeal was in respect of an order passed under section 8 of the Ordinance. If any question had arisen pertaining to the application or enforcement of section 8, of course, the rule laid in Keays Byrne v. M. Obaidullah Khan would have been attracted. Section 6 applies to a different situation and under different, circumstances. The principle enunciated in Keays Byrne v. M. Obaidullah Khan does not apply to this case. The appeal has no merit and is accordingly dismissed. There shall be no order as to costs. K. M. A. Appeal dismissed.