1986 PLP 1935 (CLC)

Murtiza Hussain has been examined for the tenant. He in his evidence stated that land belongs to K.P.T. and it was let out to applicant and she on rental basis had sublet the said vacant plot of land to their predecessor for Petrol Pump. He has stated that Government of Sind in exercise of powers conferred under section 3 of the Sind Rented Premises Ordinance, 1979 exempted the land belonging to K.P.T. from the provisions of Sind Rented Premises Ordinance. He alas stated that cheque being rent for the month of October, 1982 was sent to applicant on 27‑9‑1982 which she returned on the ground that she had already filed the rent case. He has also stated that his predecessor ESSO Standard was tenant of applicant and Federal Government of Pakistan by virtue of the ESSO undertaking vesting Ordinance, 1976 and by Gazette Notification dated 15‑9‑1976, the ESSO undertaking stood transferred and vested in the State Oil Company, therefore, they continued to be statutory tenant of applicant', as such rent of October, 1982 was due on 1st November, 1982 and in case of default he could get benefit of 60 days more. He has stated that applicant requested them to increase rent but tenant did not accept his demand, therefore, this rent case has been filed with mala fide. I have heard Mr. Samad Khan, for applicant and Mr. M. Anis, Advocate for the tenant. The tenancy agreement is between ESSO Standard. The agreement does not bear the date. The term for which lease agreement was executed is also not shown. This agreement has neither been registered nor attested. On this reference is made to the cases reported in P L D 1980 S C 248 and P L D 1985 S C

148. The most important point is that present tenant is not party to this agreement and no fresh agreement has been executed between applicant and tenant though present tenant took over as successor of ESSO in the year 1976. First of all this agreement is not binding on tenant. Even otherwise the date for payment of advance rent is not shown in the agreement. This agreement admittedly was between lessee and tenant and not between the landlady/owner and tenant. The para No (e) of the agreement is as follows:‑ "(e) If any rent shall be 60 days in arrears (Whether legally demanded or not) or if the lessees shall omit to perform or observe any covenant or condition on the part of the lessees herein contained and shall continue for 30 days after notice thereof to the lessees the lessees may re‑enter forthwith upon the demised premises or upon any part thereof in the name of whole and the tenancy shall thereupon determine but without prejudice not any claim which either the parties hereto may have against the other in respect of any breach, non‑performance of any of the covenants and conditions herein contained." According to above para tenant cannot ask for eviction in case he is in arrears of 60 days. As stated above the State Oil is statutory tenant. There exists no agreement between the applicant and present tenant, therefore, not default is committed. Had there been any valid agreement between the parties even otherwise the rent application was not maintainable in view of clause (e) of the agreement as referred above. Applicant has not produced any document by which this agreement is binding on present tenant. The Ordinance came in force in the year 1979 and section 6 provided protection to tenants but parties did not execute fresh agreement. Now section of the Ordinance also stands repealed. The Rent Controller has rightly dismissed the rent application. In the same appeal (F.R.A. No.251/85), the applicant has also challenged the tentative rent order passed on 30‑1‑1985. First of all, there was no issue about fixation of rent and order was of tentative nature valid up to the pendency of rent case which has already terminated'! as such appeal against that order is not maintainable as it is not a! final order. The Rent Controller has rightly not touched the question of rate of rent in his impugned order. Moreover the tentative rent order was passed on 30‑1‑1985 and by now one appeal has been filed against both the orders. First of all the appeal is not competent against that order. Even otherwise it is hopelessly time‑barred. For the reasons stated above the F.R.A. No.251/85 filed by Mrs. B.S. Khan is dismissed and order of Rent Controller' is maintained. Now I come to appeal filed by State Oil Company on the point of maintainability of rent case. It is an admitted position that land belongs to Karachi Port Trust and status of applicant Mrs. B.S. Khan is that of lessee and this fact is mentioned in the tenancy agreement produced by the applicant. This land has been given by applicant on rent. I do not like to enter into this question if lessee is competent to sublet the premises as it is between the K.P.T. and parties and there was no such issue but one thing is very clear that K.P.T. was not made party in the proceedings at any stage. The notification of Sind Government dated 15th March 1981 has been produced. The contents o: the notifieation are as under:‑ "No. VIII (3) 501/75.‑‑ In exercise of the powers conferred by subsection (2) of section 3 of the Sind Rented Premises Ordinance, 1979 and suppression of all orders issued previously, the Government of Sind are pleased to exempt the premises belonging to Karachi Port Trust Karachi, from the application of the Sind Ordinance." The Rent Controller relying on a case reported in 1979 C L C 170, has come to the conclusion that private parties cannot get benefit of exemption by virtue of Notification, but it is only for K.P.T. to raise this objection. The exemption has been granted to the premises belonging to Karachi Port Trust. The ownership rights have not been transferred to the applicant. The only status she has got is of lessee. Two letters dated 8‑3‑1982 Exh.0/6 and Exh.0/7 show that lease in favour of applicant is not being renewed by K.P.T. and attorney has admitted these letters in his evidence The notification provides exemption to land belonging to K.P.T. and it belongs to K.P.T. The facts of the case of Muhammad Nazir Ahmed v. the Lyallpur Improvement Trust and others reported in 1979 C L C 170 are different. In above case application under section 4 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for fixation of fair rent in respect of land taken on lease from Lyallpur Improvement Trust was filed on 12‑4‑1966 but notification exempting the properties vesting in improvement from its operation was issued on 27‑10‑1969 when application was already pending. It was, therefore, been held in above case that notification could not affect the proceedings which had already been instituted. The facts of the present case are different. The rent case was filed on 25th October, 1982. The notification was issued on 11th March, 1981. In case of Sh. Khurshid Muhammad and 30 others v. Anjuman Himayat‑e‑Islam, Lahore reported in P L D 1975 S C

54. The property of Anjuman Himayat‑e‑Islam, Lahore was exempted from the provisions West Pakistan Urban Rent Restriction by a notification. The vires of section 3 of the Ordinance was questioned on the ground that it gave un‑controlled power to execution. It has been held in a case reported in P L D 1975 S C 57 as under:‑ "The first limb of the argument overlooks the fact that the Ordinance makes serious inroads in the full enjoyment of ownership in immovable property situated in urban areas. This includes owner's right to give his property on agreed rent, for a specified period and to terminate the lease in accordance with its terms and tenor as provided in the Transfer of Property Act, 1913. This has been universally accepted as a necessary concomitant of ownership in property. Therefore, the whole object of the impugned notification is to restore the normal rights of ownership to the respondent Anjuman by doing away with the encumbrances created by the Ordinance against the full enjoyment of its property by the Anjuman. It is important to bear in mind, that this in cumbrances in favour of the tenants are creation of the statute, which the statute itself abolishes or gives the executive the power to abolish in certain cases. On that view of the matter, therefore, the effect of the notification is not to deprive the appellants of any right in hearing in them with reference to the property, but only to restore what is otherwise a normal incident of ownership under section 107 of the Transfer of Property Act 1882." In case of K.P.T. the exemption has been granted by notification to the premises belong to K. P. f . Karachi. The definition of premises is given in section 2 (h) of Sind Rented Premises Ordinance, as follows:‑ 2(h) 'Premises' means a building or land, let out on rent, but does not include a hotel." Therefore, land and buildings belonging of K.P.T. are exempted. The demised premises belong to K.P.T. In case of Mst. Khadija Merchant v. The K.M.C. (through Mayor) reported in 1983 C L C 535, it has been held as under:‑ "

11. The next question is whether the notification dated 29th July, 1980 under section 3 (2) of Sind Rented Premises Ordinance, 1979 which was issued during the pendency of the present rent proceedings before the learned Rent Controller, will have retrospective effect so as to bar the jurisdiction of the Rent Controller. There can be no manner of doubt that the notification relates to a procedural law inasmuch as it bars a remedy. No party has any vested right in a particular remedy conferred by Statute. In this connection learned counsel for the respondent has referred to the case of Adnan Afzal v. Capt. Sher Afzal. The relevant observations made by the Supreme Court in the above case are as under:‑ 'The general principle with regard to the interpretation of statutes as laid down in the well‑known case of the Colonial Sugar Refining Company Limited v. Irving is that 'if the matter in question be a matter of procedure only', the provisions would be retrospective. 'On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day' the legislation would not operate retrospectively unless the Legislature had either 'by express enactment or by necessary intendment' given the legislation retrospective effect of the same affect are the observations of Jessel, Master of the Rolls, in the case of in re: Joseph Suche and Company Limited where it was observed that as a "general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights". The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that question relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retrospective operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retrospective application tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retrospectively.' From the above observations it would appear that a law relating to remedy is merely procedural. The Ordinance of 1979 confers special remedy upon landlords to invoke jurisdiction of Rent Controller in certain circumstances. The notification in question has taken a way this remedy from the landlords whose premises are used by educational institution. In view of the law laid down by the Supreme Court in this behalf the notification in question shall be deemed to affect the pending proceedings also, and, therefore, the learned Rent Controller was justified in holding that the ejectment proceedings in respect of the premises in question were barred by virtue of the said notification. The appellant shall, however, be entitled to seek remedy under the normal law i.e. Transfer of Property Act if so desired." And in case of Province of Sind through Secretary Education Sind. Karachi and 2 others v. Nisar Ahmed reported in 1983 C L C held that rights and obligation of tenants are to be governed by the Transfer of Property Act, 1882 and upon issuance of notification the Rent Controller ceased to have jurisdiction over rent applications. Up shot of the above discussion is that premises belonging to K.P.T. are exempted. In the present case Mrs. B.S. Khan is lessee of K . P . T . whereas State Oil is in occupation of land of K . P . T . though it has been given to them by lease.. Therefore, lessee cannot invoke the jurisdiction of Rent Controller in respect of land of K.P.T. which stands exempted, by virtue of notification dated 11th March, 1981. Moreover the definition of landlord is given in Sind Rented Premises Ordinance, 1979 as under:‑ 2(f) "landlord" means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises." The owner of the land is K.P.T. but Mrs. B.S. Khan who is lessee rented out the premises belonging to K.P.T. to State Oil and his rights are to the extent to recover the rent as such provision of Sind Rented Premises which include section 2 (f) are exempted, therefore, lessee is not competent to file rent case against sub‑lessee. For the reasons stated above on this issue I allow the appeal No.F.R.A. 302!85 and set aside the findings of the Rent Controller. I have come to the conclusion that Rent Controller ceased to have jurisdiction in these cases. A.A. Anneal allowed.