P L D 1971 Peshawar 236 (PLP)

6. The first objection, which is substantially covered by the preceding discussion and was found to be without force by the learned District Judge, has not impressed us. It is not denied that in his eviction application respondent No. 3 had impleaded all the other co‑owners of the shop as defendants and some of them, who chose to file written statements, supported his claim. There is nothing on record to show that any one of them had opposed the application of respondent No. 3, and consequently it cannot be contended that his eviction application was incompetent. After all, the requirement of the Rent Act that an eviction application would be incompetent unless filed by all the co‑owners of the property, was substantially complied with in the present case, as the entire body of the co‑owners were before the Court and none of them had raised any objection to the claim of respondent No.

3. In this view, we are in agreement with the conclusions of the two Courts below that the eviction application of respondent No. 3 was unexceptionable.

7. In order to appreciate the other two objections, it would be expedient to reproduce section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which reads:‑ "(1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer:‑‑‑ Provided that:- (a) It shall be lawful for the transferee to charge of rent on the basis of the latest assessment carried out by the Munici pality or local authority, as the care maybe, for other properties in the locality generally; and (b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cinema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgement due). (2) Where the transferee does not give notice within one month as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant. (3) Nothing in proviso (b) to subsection (1) shall apply to a tenant‑ (i) who has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by registered Post (acknowledgment due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or (ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the pro perty nor shall anything therein apply to the tenant of any house or shop, in any urban area within the same town or city, owns a house or shop, as the case may be. (4) On the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship."

8. By the language of this section it is clear that once a person in possession of any evacuee house/shop has qualified him self to be recognised as a statutory tenant, then he cannot be evicted therefrom for a period of six years from the date on which he was served with the required notice. However, he would lose this protection, if within three months after receipt of the said notice he has failed to pay or tender the amount of rent or arrears of rent disc for any period after the property was transferred to the landlord, has sublet or otherwise parted with the possession of the house/shop, has committed acts which are destructive of or injurious to the property, or if he owns a house or shop in any urban area within the sane town or city. It may be mentioned that the protection in question against the eviction of a tenant from the house/shop was introduced by Act XIX of 1963 (the period of protection prior thereto being only three years) upon which great stress was laid by Mr. Peer Bakhsh Khan, the learned counsel for the petitioners. He contended that this Act being procedural in nature would apply retroactively, and consequently the eviction application of respondent No. 3, which was filed before the expiry of that period, would be wholly incompetent and the impugned judgment without jurisdiction. In support of this contention, the validity of which we would presently examine, the learned counsel referred to a number of judgments. But since the proposition is well established that in the absence of anything to the contrary contained in the statute procedural laws are deemed to be retroactive, the consideration of these judgments appears to be unnecessary.

9. In order to appreciate the above contention of the learned counsel, it would be helpful to recall the history of the legislation of section 30 of the Act by which tenants have received, from time to time, protection against eviction from houses/shops for specified periods. In this respect, Act XXVIII of 1958 which came into force on the 28th of March 1958 is the first enactment. By virtue of provise (b) to subsection (1) thereof, the specified period of protection against the eviction of a tenant was five years from the date when the house/shop was transferred to a landlord, the notice of which he was required to give to his tenant within one month of the transfer by registered post (acknowledgment date). This position continued until 1959, when by Ordinance I of 1959, proviso (b) to subsection (1) of section 30 was amended and the period of protection against eviction of a tenant was reduced from five years to three years. In 1963, the proviso in question, including section 30 itself, was again substantially amended by Act XI ref 1963, and in the result the said period of protection was extended to six years. Not only this, but the Legislature further provided that in proviso (b) to subsection (1) of section 30 the period of six years 'shall be substituted, and shall be deemed always to have been so substituted" and further that this period of extended protection shall not apply to the tenant of any house or shop who in any urban area within the same town or city, owns a shop or house, as the case may be.

10. By reading these provisions together, perhaps it would be open to a tenant, who does not own a house/shop in any urban area within the same town or city, to contend that Act XIX of 1963 being procedural in nature would apply retroactively, and consequently he would be entitled to protection against eviction for the extended period of six years. But upon the facts of this case, we are not called upon to decide this larger question as the petitioner is admittedly the owner of a shop within the Cantonment area of Peshawar, and consequently he is not entitled to the extended period of protection in view of the clear intention of the Legislature manifested, as it is, by the unequivocal language of the Amending Act XIX of 1963.

11. However, this would not mean that, just because the petitioner owns a shop within the urban area of Peshawar Canton ment, he could be evicted from the disputed shop at the pleasure of respondent No.

3. In this respect the policy of the Act, as contained in subsection (1) and (4) of section 30, is clear that the petitioner cannot be evicted unless proceedings are instituted B against him in accordance with law for the time being in force. In other words, the petitioner, who is no doubt the owner of a shop within the urban area of Peshawar Cantonment, would continue to be a tenant of respondent No. 3 until he is evicted therefrom in accordance with law which in this case happens to be the Rent Act. According to section 17 of this Act, the petitioner could only be evicted from the shop if respondent No. 3 was able to prove that he was guilty of the various omissions and commissions mentioned in that section or else he required the premises in good faith for his own use. In order to test the bona fides of respondent No. 3 (the landlord in this case) the Legislature has laid down certain objective criteria in sub‑clause (b) of subsection (4) of section 17 of the Rent Act which is to the effect that if he is shown to be in occupation of another shop within the same urban area of the Peshawar Cantonment or he has vacated a shop in the said area without sufficient cause after the commencement of the Rent Act, then his application must be rejected. It is therefore clear that so long as the petitioner (the tenant in this case) has not violated his obligations under section 17 of the Rent Act, he would be protected against eviction unless of course the landlord (respondent No. 3) was able to show that he required the disputed shop in good faith for his own use.

12. The one significant principle which emerges from this discussion is that the Legislature has treated the landlords and tenants at par with each other in regard to their respective rights and obligations in the properties transferred from compensation pool, inasmuch as while a landlord is prohibited from seeking the eviction of his tenant unless he was able to prove his case in line with the requirements of section 17 of the Rent Act, the tenant also cannot claim to continue is possession if he is proved to have violated his obligations mentioned in that section, or if he was the owner of a house/shop, as the case may be, within the same urban area of the city/cantonment, as provided by section 30 of the Act. Seen in this context, the petitioner who admittedly owns a shop within the same urban area of the Peshawar Can tonment is not entitled to any protection against his eviction from the disputed shop premises, and as such, his grievance is entirely misplaced.

13. The admitted position is that respondent No. 3 had sought the eviction of the petitioner from the disputed shop under section 17 (4) (b) (i) (fi) and (iii) of the Rent Act. His precise case in the eviction application was that he required the disputed shop premises bona fide for his own use and further that the petitioner was the owner of quite a few shops in the urban area of Peshawar Cantonment, and consequently he had no such need. In his written statement, the petitioner did not deny this allegation, but alleged that it was irrelevant because he needed more premises for extending his business. In this view of the pleadings of parties, it is clear that the petitioner was not entitled to remain in possession of the disputed 'hop premises as tenant in view of amendment of proviso (b) to subsection (i) of section 30 of the Act by Act XIX of 1963, and consequently the eviction application filed against him by respondent No. 3 was competent.

14. Mr. Peer Bakhsh Khan, the learned counsel for the petitioner, however, urged that the shop of which the petitioner was the owner in the Cantonment area, was found by the Con troller in dilapidated condition, and consequently it cannot be said that he was the owner of "shop" within the meaning of clause (ii) of subsection (3) of section 30 of the Act, so as to disentitle him to the protection against eviction for a period of six years. There is no doubt that according to the finding of the Rent Controller the shop of the petitioner was in dilapidated condition. But since no arguments were addressed to us on this aspect of the case, we issued notice to the learned counsel for the parties and reheard them. The learned counsel for the petitioner laid great stress upon the said finding of the Controller, but this would not help him as it was not the case of the petitioner that the shop of which he was the owner, within the Cantonment area of Peshawar, was in dilapidated condition. In fact, he admitted the case of the petitioner, but alleged that this fact was irrelevant as he was in need of extra premises to expand his business. Notwithstanding the pleadings of parties, however, the learned Controller rot only recorded evidence on this point, but also visited the said shop premises (a fact which is disputed by the learned counsel for respondent No. 3), and came to the conclusion that it was in dilapidated condition. Surely, the Rent Controller was in error to have embarked upon any such enquiry, when it was not the case of the petitioner that the shop was in dilapidated condition. In this view, the finding of the Rent Controller on this point has to be disregarded and it has to be held that the petitioner, being an owner within the urban area of Peshawar Cantonment, is not entitled to any protection against eviction after the amendment of section 30 of the Act by Act XIX of 1963.

15. Be that as it may, the admitted position now is that the petitioner has already remained in possession of the disputed shop for more than six years and has also occupied his own shop premises. This development, which has taken place during the pendency of the proceedings, can be taken due notice of by this Court, and consequently it would be wholly unjust to dismiss the eviction application at this stage on a technical ground that when it was filed the period of six years had not expired. For this conclusion, we might with advantage reproduce from page 113 of the judgment of the Supreme Court of Pakistan in the case of Abdullah Bhai and others v. Ahmad Din (P L D 1964 S C 106) the following observations:‑‑ "An argument had been addressed to us that the suit was premature and should have been dismissed on that ground. The suit had been filed on 17‑1‑1958 that is long before 31‑12‑1959 on which date the period of the licence was to terminate. The trial Court had dismissed the suit. The Additional District Judge on appeal had decreed it on a date when the period of the licence had expired and the appellants had a right to possession. It was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. We would not be prepared at this stage to dismiss the suit on this technical ground and to direct the appellants to file a fresh suit."

16. The only question which remains to be answered is whether respondent No. 3 can seek the eviction of the petitioner on the ground that he needed the disputed shop premises bona fide for his personal use? We have sufficiently dealt with this question in the earlier part of the judgment and would avoid to duplicate the process. It would be sufficient to say that after the amendment of section 30 of the Act by Act XIX of 1963 the petitioner, who was admittedly the owner of a shop within the Cantonment area of Peshawar, lost the protection against eviction for any period, and consequently his relationship vis‑a‑vis respon dent No. 3 was to be regulated in accordance with law for the time being in force. The relevant law in this respect in section 17 of the Rent Act, which was admittedly invoked by respondent No. 3 in seeking the eviction of the petitioner. According to clause (b) of subsection (4) of the Act, one of the grounds upon which the eviction of the petitioner could be sought, was that respondent No. 3 required the disputed shop premises in good faith for his own use, and consequently his right in this respect cannot be disputed.

17. So far as the merits of the case are concerned, the learned District Judge, upon the appraisal of evidence on record, has come to the conclusion that respondent No. 3 has satisfac torily established that he needed the shop premises in good faith for his own use. This being a finding of fact is not open to review in the present proceedings, particularly when the learned counsel for the petitioner failed to point out that upon the evidence on record it could not be sustained.

18. The learned counsel for the petitioner lastly urged that since the word "Cantonment" has not been mentioned in any of the provisos to section 30 of the Act, the protection of six years against eviction would be available to the petitioner notwithstanding the fact that he was the owner of a shop in the Cantonment area. However, when we pointed out to the learned counsel that the word "urban" has been defined in section 2(13) of the Act to include "Cantonment's, he did not press this objection any further.

19. The learned counsel did not urge any other point, and since we find no force in this petition it is dismissed with costs. K.B.A. Petition dismissed.