P L D 1957 (W (PLP)

KAIKAUS, J.‑

This is an appeal against an order of remand made by Mr. Ata Ullah, Additional District Judge, Gujrat. The suit out of which this appeal arises was one for ejectment and rent. The allegations were that the plaintiff was the landlord and the defendant, the Manager of the Church of Scotland Mission Girls High School, Gujrat, was her tenant in respect of a house, that on the 5th of January 1955, the plaintiff served a notice on the defendant to vacate the premises, but the agreement of the parties on the 7th of January 1955 a new oral lease for a period of three months at a monthly rent of Rs. 30 was created and the defendant was allowed to remain in possession and that on the termination of the oral lease, the defendant had not vacated the premises and another notice was served which the defendant disregarded. The plaintiff had, therefore, to file the present suit. The defendant in a written statement, which is illustrative of what is described as evasive denial in the Civil P. C. simply denied that there was any oral agreement for three months as stated in the plaint. The defendant did not clearly state whether she was the plaintiff's tenant though she did say that the notices to quit were invalid and that she was depositing rent in a local bank because some other person had claimed to be entitled to rent, which would seem to imply that tenancy was admitted. The frame of issue No. 6A would also imply that tenancy up to the 5th of January 1955 was not denied. A number of issues were framed which related to the existence of the agreement between the parties in January 1955 and to certain technical matters to which it is not necessary to make a reference. The plaintiff made her own statement in the witness‑box and also produced some witnesses to prove her case. The defendant led no evidence. The trial Court found the story of the plaintiff as to the agreement of tenancy to be true and decreed the suit. On appeal before the learned Additional District judge, a point was raised that as the house was within municipal limits and a tenancy could come into existence only in accordance with the provisions of section 107 of the Transfer of Property Act, which required either a registered instrument or an oral agreement accompanied by delivery of possession, a valid lease had not been created, for there was no delivery of possession. The learned judge came to the conclusion that the case had not been properly tried, for, although the trial Court had given a decision on the question of fact as to whether there was a tenancy, it did not consider whether a tenancy could legally come into existence. He framed the following issues and remanded the case for a fresh decision after recording evidence :‑ (1) Was the defendant occupying the premises in suit as a tenant of the plaintiff before 7th of January 1955 ? (2) If the first issue is not proved, could an oral lease be created in favour of the plaintiff from 7th of January 1955 to 6th of April 1955 ? (3) If it is found that the oral lease could validly be created, was it actually created as alleged ? (4) Can the plaintiff sue for rent and ejectment in spite of the fact that the defendant did not vacate the premises after the expiry of the oral lease ? (5) Was the notice of 10th of May 1955 valid and can the plaintiff get ejectment or rent on its basis ? (6) If it is found that the plaintiff can claim any amount as rent, what amount should be allowed to her as such ? (7) Is the plaintiff entitled to get the defendant ejected ? (8) Relief. This is an appeal by the plaintiff. A preliminary objection has been taken on behalf of the defendant‑respondent that in view of the promulgation of the Urban Rent Restriction Ordinance, this suit cannot proceed at all. The Urban Rent Restriction Ordinance was promulgated during the pendency of this appeal in the High Court. Section 13 of that Ordinance says :‑ 13. (1) A tenant in Dussession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. Then follow certain conditions and procedure which it is not necessary to describe in detail. Learned counsel for the respondent urged that as no order for ejectment can now be passed in favour of the plaintiff, this appeal as well as the suit should be dismissed. Learned counsel has relied in this connection on Mukerjee v. Mst. Ramratan (AIR 1936 P C 49). In that case a landlord had sued for ejectment of a tenant on the ground that on account of an invalid transfer of the occupancy holdings there had been an abandonment and, therefore, the landlord had a right of re‑entry. The suit was dismissed by the High Court of Patna on the ground that the landlord had recognised the title of the transferee. Against this decision an appeal was filed by the landlord before the Judicial Committee of the Privy Council. During the pendency of the appeal, the Tenancy Act was amended and it was provided that in all cases where a transfer of occupancy right had taken place before the 1st of January 1923, the landlord would be deemed to have consented to the transfer. The transfer in dispute in that case was one effected before the 1st of January 1923. On the basis of this amendment of the Tenancy Act, which had retrospective effect, it was urged on behalf of the respondent before their Lordships of the Privy Council that the appeal should be dismissed. On the other hand, it was argued for the appellant that this was a pending proceeding and the new amendment should not be applied to pending proceedings in accordance with well‑recognised rules of interpretation. Their Lordships rejected the contention of the appellant and held that as there was no saving clause with respect to the pending suits and the provision in the amending Act was retrospective, it should be applied to an appeal that was pending and the appeal should be dismissed. There is no analogy between that case and the one before me. There by retrospective legislation a transfer which had taken place before the 1st of January 1923 was made valid, and binding on the landlord. The landlord was in that suit impeaching such a transfer. Had no suit been filed with respect ,to it, the landlord would have been bound by it and it could obviously make no difference that he had also filed a suit. The new law made no exception in respect of any transfer which was the subject‑matter of any suit or proceeding. The suit had to be dismissed because the transfer had become valid. The Urban Rent Restriction Ordinance with which I have to deal simply provides for certain fresh conditions for ejectment and for a certain procedure. The only effect of this provision is that even if a decree is passed in the present suit, the tenant would not be liable to ejectment until there is an application under section

13. The jurisdiction which the Court had to try the suit for ejectment cannot be taken away except to the extent that is necessary in order to give effect to the provisions of the new Ordinance. That effect is sufficiently given if it is expressly provided in the decree which is passed that it will be subject to the provisions of the Urban Rent Restriction Ordinance as long as it remains in force. If such a provision be made, it could not be urged that there was any inconsistency between the decree and the Ordinance and that is all that is necessary. It may be mentioned that section 13 itself speaks of decrees passed before or after the coming into force of the Ordinance and still makes no provision for their being declared void or being set aside or amended. Jurisdiction of the Civil Courts can be taken away either by express words or by necessary implication. There are no express words in the Ordinance preventing a Civil Court from proceeding with a pending suit for eject ment, and the necessary implication only is that actual ejectment cannot take place until there is compliance with section 13 of the Ordinance. It should at the same time be borne in mind that a dismissal of the suit on account of the promulgation of this Ordinance may have very undesirable results‑results which the promulgating authority may never have contemplated. The Ordinance may lapse and after lapse it is regarded as never having existed. If a suit based on a particular cause of action is dismissed on account of this Ordinance what course will the plaintiff adopt if the Ordinance lapses ? Will he have to file a new suit or shall he apply under section 151, Civil P. C. for a revival of the old one. In each case there will be some technical objection and though they may be met the plaintiff will at least be unnecessarily harrassed. There is no need at all to put the plaintiff to all this inconvenience. Learned counsel for the respondent says the suit is infructuous as it will not enable the plaintiff to eject the defendant. It is incorrect to say that it is infructuous. If the Ordinance lapses, the decree will be executed. Ordinances lapse even in the ordinary course (unless ratified by legislature), but in this case even the Acts which are passed are temporary statutes which expire and after expiry are deemed never to have existed except for transactions past and closed. So a decree for ejectment once passed can always be executed the moment this legislation expires. In fact, we should say that the only effect of the Urban Rent Restriction Acts (which are temporary statutes) is to suspend the execution of the decrees, not to destroy or invalidate them. Another reason why the suit is not infructuous is that at least the question of existence of the relationship of land lord and tenant is determined. Henceforth only compliance with the conditions mentioned in section 13 remains. Kirpa Ram‑Dhani Ram v. Chint Ram (A I R 1947 Lah. 301) was not cited at the bar, but I would mention it as it is a similar case though only to say that it does not apply. The Urban Rent Restriction Act of 1941 had provided in section 10 that "no order for recovery of possession of any premises" was to be made so long as prescribed conditions were not complied with. Abdur Rahman, J. had held that 'order' did not include 'decree' so that in a case that was pending when the Act came into force, a decree could still be passed. In appeal against this decision the Letters Patent Bench held on a consideration of the provisions of the Act that the word 'order' did include 'decree'. The case turned on the interpretation of the word 'order' in section 10 and is of no help in the present case. I overrule the preliminary objection. On the merits I am of the opinion that the learned Additional District judge should not have remanded the suit. Whenever a new plea is taken in a Court of appeal, it is, when analysed, either an objection relating to facts or one of pure law. If it involves a question of fact, it cannot, unless the circumstances be exceptional be entertained in appeal. If it is one of pure law, it can be entertained, but it can only be one of pure law if it can be determined from the material on record. A suit, therefore, cannot ordinarily be remanded on account of a new objection taken in appeal. Of course, if a new question of law is raised, the party against whom it is raised may pray for a remand on the ground that on account of the absence of this objection in the trial Court the attention of that party had not been drawn towards the necessity of proof of some facts bearing on the question of law that was raised and the Court may in its discretion remand the case to allow that party opportunity of further proof of relevant facts. In the present case, the plaintiff may have prayed (if the objection was entertained) for a remand to enable her to give further evidence as to possession, (for the only objection to the legality of the lease was the absence of delivery of possession). But the plaintiff was not making any such request and was prepared that the matter be decided on the record. In fact neither party had asked for a remand. I have examined the grounds of appeal of the defendant before the Additional District Judge. There was no ground that issues had not been properly framed and there was no prayer for further inquiry or evidence. The judgment does not show that any oral request was made. This appeal is accepted, the order of remand is set aside, and the case shall go now, not to the Additional District Judge, but to the District Judge, Gujranwala, who shall decide the appeal on the material on record. Nothing that I have said in this judgment will preclude him from holding that the objection cannot, in view of the case presented on behalf of the defendant in her pleadings or otherwise, be entertained or from deciding the new point in the light of the pleadings and attitude of the defendant. Costs of this appeal shall be costs in the cause. Parties shall appear before the District Judge, Gujranwala, on the 29th October 1956. A. H. Appeal accepted.