1988 PLP 708 (SCMR)

JAVID IQBAL, J.‑‑Appellant Muhammad Ibrahim is a tenant of respondent Haji Jamil Ahmad in respect of shop premises bearing No.97 Street NO.MR‑I, in Gali No.3, Marriot Road Karachi. The respondent filed an ejectment suit before the Rent Controller Karachi against the appellant on the grounds of default in payment of rent and reconstruction of the premises. The rent suit was compromised by an order dated 1st April, 1975 of the Rent Controller on the basis of the compromise application whereby it was agreed that the appellant would hand over vacant possession of the disputed shop to the respondent who after demolishing the premises and upon reconstruction of the same within one years from the date of vacant possession would give the shop to the appellant in the newly constructed building. Thereafter, the appellant on 23rd April, 1975 handed over vacant possession of the disputed shop to the respondent. Since the respondent did not construct new building on the said premises and had not handed over the possession of shop within the period stipulated in the compromise, the appellant first served notice on him on 1st November, 1976 for restoration of possession and thereafter on 8th August, 1977 (after the expiry of more than two years) he moved an application under section 13(5) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the 1959 Ordinance) before the Rent Controller that the respondent be proceeded against and punished in accordance with law. This application was resisted by the respondent. It was pleaded on his behalf that the building could not be reconstructed on account of reasons beyond the control of the respondent. The parties also recorded their statements and produced witnesses in support of as well as against the aforesaid application. While the proceedings were at the stage of the recording of evidence the 1959 Ordinance was repealed and instead Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the 1979 Ordinance) was promulgated. Consequently on 19th December, 1979 the respondent moved an application before the Rent Controller under section 27(2) of the 1979 Ordinance praying for the dismissal of the aforesaid application of the appellant on the ground that the 1959 Ordinance had been repealed. However, the Rent Controller after hearing the parties passed order, dated 14th October, 1982 allowing the application and directing the respondent to put back the appellant in the occupation of the demised shop within two months of the order. Being aggrieved the respondent preferred First Rent Appeal before the High Court of Sind Karachi which was heard by a learned Single Judge who by his order, dated 8th April 1984 accepted it setting aside the order of the Rent Controller, dated 14th October, 1982 mainly on the ground that he had no jurisdiction to entertain an application under section 13(5) of the 1959 Ordinance until the ordinary criminal Court had punished the respondent on a complaint of facts filed by the appellant with the sanction of the Rent Controller. The aforesaid judgment of the learned Single Judge was challenged in this Court and leave was granted on 29th September, 1984 for the reason that the judgment of the learned Single Judge on the point of law was not correct. The impugned judgment was suspended with the direction that the appellant should be put back in possession of the demised premises pursuant to the order passed by the Rent Controller. This last portion of the leave granting order was subsequently modified on review on 23rd January, 1985 to bring it in conformity with the relief prayed for by the appellant in his petition for leave to appeal. Accordingly the respondent was directed not to sell, encumber or in any way transfer or change the status of the premises in question till the appeal was decided. Learned counsel for the appellant firstly argued that so far as the legal aspect of the case was concerned, the learned Single Judge allowed the appeal because he came to the erroneous conclusion that the case was governed by the provisions laid down in section 13(5) and (5‑A) read with section 19 of the 1959 Ordinance. It was submitted that the instant case was not governed by the aforesaid provisions of the 1959 Ordinance, but under section 27(3) of the 1979 Ordinance it was to be disposed of in accordance with the provisions of the subsequent Ordinance. It was further submitted that under section 15(3) of the 1979 Ordinance, in such circumstances the appellant as tenant was entitled to be put into possession of the disputed premises and for that purpose he could move an application before the Rent Controller for an order in that behalf. Consequently the order passed by the Rent Controller directing the respondent to restore possession of the demised shop to the appellant had been correctly passed and did not require any interference. Section 13(5) and (5‑A) of the 1959 Ordinance read as follows: "13(5). Where a landlord has obtained possession of a building in pursuance of an order under clause (vi) of subsection (2) of this section and does not have the building demolished within a period of four months from the date of taking possession of the same or does not construct the new building within a further period of two years after the expiry of the period of four months from the date of taking possession of the same, he shall, unless he satisfies that Court that he was unable to construct the building within the prescribed time for reasons beyond his control be punished with imprisonment for a term which may extend to six months or with fine or with both. 13(5‑A). Where a landlord has been convicted under the provisions of subsection (5) , the tenant, who has been evicted from the building or rented land in respect of which the landlord is convicted, may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land, and except in the case of a building which has been demolished, the Controller shall make an order accordingly. " Section 19 of the 1959 Ordinance reads as follows:‑ "

19. Penalties.‑‑(1) If any person contravenes any of the provisions of subsection (1) of section 13, section 11 or section 18 he shall be punished with fine which may extend to one thousand rupees. (2) No Court shall take cognizance of an offence under this section except upon‑‑ (a) a complaint of facts which constitute such offence filed with the sanction of the Controller in writing; or (b) a report in writing of such facts made by the Controller. Section 27 of the 1979 Ordinance reads as follows:?????? "

27. Repeal.‑‑(1) The Sind Urban Rent Restriction Ordinance 1959, is hereby repealed. (2) All appeals and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance. ????? (3) All other cases instituted under the Ordinance mentioned in subsection (1) 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. (4)??????? ...........................???????????????????? " Section 15(3) of the 1979 Ordinance reads as follows: "15(3). Where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building or erection of a new building, shall demolish the existing building within six months of the taking over of the possession of the premises or, as the case may be, commence the erection of the new building within two years of the taking over of the possession of the premises, and in case the landlord fails to demolish the building as aforesaid, the tenant shall be entitled to be put into possession of the premises and for the purpose he may apply to the Controller for an order in that behalf."???????? It is evident that under section 13(5) and (5‑A) of the 1959 Ordinance first the delinquent landlord had to be punished by an ordinary criminal Court before the possession of the premises could be restored to the tenant by the Rent Controller in cases of this nature. But under the provisions of section 15(3) of the 1979 Ordinance, the procedure has been changed and in such cases the tenant is entitled to be put into possession of the premises and for this purpose he can make an application to the Rent Controller for an order in that behalf. Under section 27 of the 1979 Ordinance only those appeals and cases filed under the 1959 Ordinance pending before a Rent Controller which had reached the stage for arguments or where only judgment was to be written, were to be disposed of in accordance with the 1959 Ordinance notwithstanding the repeal thereof. But all other cases instituted under the 1959 Ordinance which immediately before the commencement of the 1979 Ordinance were pending before a Rent Controller were to continue and were to be disposed of in accordance with the provisions of the 1979 Ordinance, The admitted legal position in the present case is that the 1959 Ordinance was repealed and replaced by the 1979 Ordinance while the present case although instituted under the 1959 Ordinance was pending before the Rent Controller only at the recording of evidence stage (in other words it had not reached the stage for arguments or judgment), therefore, it was to continue and to be disposed of in accordance with the provisions of the 1979 Ordinance and that the 1959 Ordinance was not applicable. Consequently this legal position is accepted by learned counsel for both the parties and there remains no controversy on this issue. Since the learned Single Judge of the, High Court of Sind had decided the appeal of the respondent in this case only for the reason that the case was governed by the provisions of section 13(5) and (5‑A) read with section 19 of the 1959 Ordinance which admittedly were not applicable to the present case and did not; deem it necessary to go into the questions of fact involved in the; case, the impugned judgment is liable to be set aside on this short ground. The learned Single Judge on this aspect of the matter observed as follows: "It may be observed that the parties are at issue on the question of fact. According to the appellant the shop in question has already been demolished, whereas according to the respondent only roof of the shop has been demolished and the structure is still there. In my view, it is not necessary to go into the above question of fact as the above appeal can be disposed of on the above legal grounds referred? to hereinabove. We have already found that the instant case, in the light of section 27(3) of the 1979 Ordinance, was governed by the provisions of section 15(3) of the said Ordinance and therefore the application of the appellant‑tenant for the purpose of being put into possession of the demised premises before the Rent Controller for an order in that behalf was quite proper. Now section 15(3) clearly lays down that in case the landlord fails to demolish the building within six months of the taking over of possession of the premises or does not commence the reconstruction of the building or erection of a new building within two years, the tenant shall be entitled to be put into possession of the premises. The word "premises" is defined in section 2(h) of the 1979 Ordinance as "a building or land let out on rent". The factual position at present as stated before us by learned counsel for the parties is this. According to learned counsel for the appellant only the roof of the shop in question has been demolished and the rest of the structure is still there. On the other hand according to the learned counsel for the respondent the said shop was completely demolished, but the respondent could not construct a new building within the prescribed time for reasons beyond his control. According to learned counsel the delay in reconstruction was caused due to numerous cogent reasons such as issuance of a status quo order passed by a civil Court because of a litigation between the respondent and some other party, mental derangement of his son coupled with the death of his grand‑daughter etc. There is yet another aspect of .the case, namely, that the respondent as landlord had obtained possession of the disputed premises on the basis of a compromise between himself and the appellant and the Rent Controller had passed a consent order on 1st April, 1975 in accordance with the terms of that compromise and the question may arise as to whether the restoration of possession of the disputed shop to the appellant is to be made in accordance with the terms of the said compromise. Then again factually the question is to be examined that if the existing shop had been demolished by the respondent but neither it had been reconstructed nor a new building had been erected then how the possession to the appellant is to be restored when under section 15(3) of the 1979 Ordinance such restoration can only be made if the landlord had failed to demolish the building? In the present case the building according to one side is partly demolished and according to the other it is completely demolished. Under section 15(3) the tenant is entitled to be put into possession of the premises in case the landlord fails to demolish the building as aforesaid but it does not cater for a situation where the premises have neither been reconstructed nor a new building erected. The tenant claimed before us that the premises still exist in the original form and the roof only has been demolished. This position was strongly controverted by the counsel for the other side. These are all questions of fact which require to be examined carefully. We have already observed that in the impugned judgment the learned Single Judge has wrongly determined the question of law involved in this case and has not felt the need of adverting to the questions of fact. Therefore, his order is hereby set aside and the case is remanded to the High Court of Sind Karachi to rehear the said First Rent Appeal and to decide it afresh on the questions of fact involved in this case, as we have already held that the provisions of law applicable to the present case are the provisions of section 15(3) of the 1979 Ordinance read in the light of section 27(3) of the said Ordinance. As this is a rent case it should be disposed of expeditiously, if possible within a period of three months. The appeal is allowed in these terms. There shall be no order as to costs. M.B. A. /M‑370/S?????????????????????????????????????????????????????????????????? Appeal allowed.