1988 PLP 1902 (CLC)

The learned counsel contended that under Section 30 of the Dis laced Persons (Compensation and Rehabilitation) Act, 1958 the a Cants being persons in possession became the statutory tenants p~ of the premises. In support of his contention the learned counsel has referred to P L D 1964 SC 189, P L D 1964 Lah 136, 1983 C L C 91, 1978 S C M R 269, P L D 1975 Kar. 971, 1984 C L C 3227. On the other hand Mr. Rahmani the learned counsel for the respondents contended that at no point of time the applicants were accepted as tenant and Khawaja Auto Car Ltd. are not the tenants. It is Ramzan Khan who is the tenant and is managing the affairs of the company. Although the cheques of the company were accepted towards rent it will not entitle the applicants to claim tenancy and further that the provision of section 30 will, not be attracted as the possession of the applicants is not in terms of section 2(6) of the Act. In Rahim Bakhsh v. Ch. Ahmad Bakhsh and others P L D 1964 SC 189 the occupant was a tenant of the premises before partition and .after the property was declared evacuee property he paid rent to Rehabilitation Department. It was observed that: "Section 30 of the Act declares that persons in possession of any evacuee property and those who have been declared to be tenants occupying such property, from a certain date, would be deemed to be tenants of the transferee on the same terms anal conditions as to payment of rent or otherwise, on which they held it immediately before the transfer." From the facts of this case and the observation made in this judgment it is clear that the nature of possession was not under consideration. In fact the observation is not with reference to section 2 (6) E.A. Evans v. Muhammad Ashraf P L D 1964 SC 536 does not deal with the question whether word 'possession' used in section 30 should mean as defined under section 2(6). The same can be said to Ghulam Hussain's case 1978 S C M R

369. In 1983 C L C 91 the observation is in general terms in respect of the tenancy created under section

30. In Ali Muhammad's case (P L D 1975 Kar. 971) the observation is in a different context and it does not relate to the present controversy. Mr. Rahmani the learned counsel for the respondent has referred to 1973 S C M R 604 in which clear observation has been made and it has been held that the possession under section 30 is a possession within the meaning of section 2 (6) which reads as follows:‑ Section 2(6). 'Possession'.‑‑ 'Possession means possession obtained in pursuance an order passed on or before the 20th day of December, 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government: Provided further that the Central Government may, by order in writing direct that a class or classes of such' persons have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." It is thus clear that as the applicants claim to be the tenants by virtue of section 30 of the Act, they should have established drat they are in possession of the premises in terms of section 2(6). Their claim is that they are in possession through their Managing Director who was Ramzan Khan at the time when the suit was filed. Independent of Ramzan's right the applicants have not filed any document to establish their claim. From the applicants' assertion it is evident that their possession does not fall within the ambit of section 2(6). Mr. Rahmani the learned counsel contended that although by amendment in 1973, section. 2(6) which defined 'possession' was repealed, it will not affect the present case as the suit was filed in the year 1965 and therefore the right of the parties should be determined according to law which was prevailing at the time of commencement of the proceedings. In this regard the learned counsel has referred to P L D 1975 SC 1 and P L D 1967 Kar.

445. In Hasan and others v. Fancy Foundation P L D 1975 SC 1, it was observed as follows:‑ "As it is well‑established principle that in general, when substantive law is altered during the pendency of an action, the right of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights." It is thus apparent that where during. the pendency of any action substentive law is amended the rights of the parties will be governed according to the law which existed on the commencement of the action unless such right has been varied by the new statute. In the present case no intention seems to have been made by the repealing statute. It may also be mentioned that‑ the suit was filed in the year 1965 and was dismissed on 18‑8‑1969 before the amendment and the appeal was decided on 9‑8‑1978. Therefore, the right of the parties in the present case will be governed by the law which existed at the time suit was instituted. Mr. Dastgir the learned counsel for the applicants contended that as the rent was paid by the applicants through cheques which were accepted by the respondents tenancy was created in their favour. In this regard certain facts may be mentioned. Remzan Khan was the tenant and carried on business under the name and style of Khawaja Auto Car. He converted his business into a limited company in the year 1956 under the name and style Khawaja Auto Car Limited: The contention of the respondents is that even after incorporation of the Company, Ramzan Khan remained in possession and carried on the business. The learned counsel for the respondents has referred to the written statement filed by Ramzan Khan in Suit No.173 of 1964 in which he admitted that he was the tenant of the premises and that he was in possession of the premises. No assertion was made that Khawaja Auto Car Ltd. are the tenants. In reply to a notice of the respondents dated 20‑4‑1964 Ramzan Khan asserted that he was in actual possession of the premises from the year 1947, and that he has changed the name of his business as. Khawaja Auto Cars Ltd. No plea was taken that the applicants are in possession and have become statutory: or contractual tenants. This shows that before the filing of the suit by the plaintiffs Ramzan Khan has been treated to be the tenant and in possession of the premises. In these circumstances the learned counsel for the respondents .contended that mere occupation the applicants and payment of rent through cheques will not confer any right of tenancy on them. The learned counsel referred to Boman Abadan Irani and others v. Jehangir J. Mobed and others PLD 1960 Kar. 276 where it was observed that mere payment of rent by lessee or friend of lessee does not constitute sub‑lease or assignment of lease. This judgment was challenged in appeal in Boman badar; Irani v. Jehangir J. Mobed (P L D 1967 Kar. 449) where Division. Bench held that mere accepting cheques issued by the company o"1d not signify consent to a sub‑lease. It was observed as follows: "Admittedly, the defendant No.1 did not obtain the permission of the plaintiff for letting the company takes ever the concern and the premises. His idea was that this was not necessary because the share‑holders of the company were his own members of the family. In order that an inference as to consent or waiver could be raised it had to be shown that the plaintiff had acted in consciousness of the fact. Mere accepting the cheque issued by the company would not signify consent to a sub‑lease." From the facts and circumstances of this case it is apparent that . the respondents had not signified their consent for .assignment of lease or subletting or transfer of lease in favour of the applicants. It was Ramzan Khan who was the tenant and was treated as such. Merely because letters were written by the Accountant and rent was D sent and accepted .does not confirm that the .respondents had consciously acknowledged the applicants as their tenant. As the applicants are not the tenant they had no right to file the suit. The revision application is dismissed with costs. M. Y . H . / K‑79/ K Petition dismissed.