P L D 1966 (W (PLP)

QADEERUDDIN AHMED, J.‑

Civil Reference No. 452 of 1962 and Civil Revision No. 4 of 190 will be disposed of by this order. The reference was made by Mr. Moula Bakhsh Lighari, Judge, Small Causes Court, Karachi; on the 20th of September, 1962, under section 113, C. P. C. It is a general reference with respect to two Jurisdictions of that Court. They are firstly, the jurisdiction to decide the ejectment applications that were made under section 18 of the Karachi Small Causes Court Act, 1929, and were pending at the time of the reference after that Act had been repealed and the Provincial Small Causes Court Act, 1887, as amended by the Provincial Small Cause Courts (Amendment) Ordinance, 1962 had been enforced; secondly the jurisdiction to decide the revision applications which were filed under section 15 of the Karachi Rent Restriction Act, 1953, and were pending at the time of the reference after the amendment of that Act vide the Karachi Rent Restriction (Amendment) Ordinance, 1962.

2. The reasons for making the above reference were firstly that section 18 of the Karachi Small Cause Courts Act, 1929, under which the ejectment applications had been made, was no longer in existence because there was no corresponding provision in the new enforced Provincial Small Cause Courts Act, 1887; secondly, that the provision of the Karachi Rent Restriction Act, 1953, for making revision applications had been repealed without making any express provision to save the applications which were pending. The learned Judge has expressed the view that the ejectment applications could be disposed of by him in terms of section 6(c) of the General Clauses Act 1897, and that the revision applications could also be disposed of by him in view of section 12 (3) of the Karachi Rent Restriction (Amendment) Ordinance, 1962. The relevant part of section 6 of the General Clauses Act, 1897, is as follows:‑-- "

6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the‑repeal shall not‑ (a) . . . . . . (b)...... (c) affect any right, ‑privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) ...... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty, for?feiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." Section 12 of the Karachi Rent Restriction (Amendment) Ordinance, 1962 is as follows:‑ "(1)' Notwithstanding anything contained in this Ordinance any person exercising the powers of a Controller under the said Act immediately before the promulgation of this Ordinance shall continue to exercise such powers under the said Act as amended by his Ordinance unless otherwise notified by the Provincial Government in the official Gazette. (2) All applications pending before the Controller immediately before the promulgation of this Ordinance for obtaining a certificate under subsection (2) of section 10 of the said Act shall be deemed to be applications for eviction of the tenant under the, said subsection as substituted by this Ordinance and shall be heard and determined accordingly. (3) Save as provided in subsection (2) nothing in this Ordinance shall affect any suit or proceeding or any application for revision pending before any Court or authority immediately before the promulgation of this Ordinance."

3. The above reference and the revision application were ordered to be heard together because the main ground of the revision application and of the first part of the reference are common.

4. The facts which form the background of the revision application are that Noor Muhammad. who is the present res?pondent, applied under section 18 of the Karachi Small Causes Court Act, 1929 that Pirandita, the present applicant, be evicted from a certain shop which belonged to Noor Muhammad on the ground that the former was in occupation of it by virtue of a partnership which had been created for two years only and had ceased to subsist by efflux of time. Noor Muhammad had demanded the possession of the shop from Pirandita who had declined to deliver it up; therefore, he was to be directed by the Court to deliver up its possession under the section. The applica?tion was resisted by Pirandita, but it was found that his possession was that of a licensee by virtue of the partnership and that, on the termination of the partnership, the licence had ceased to exist; therefore, he had no authority to remain in occupation of the shop but was to deliver up its possession. The relevant part of the Order is as follows:‑ "It is clear from the evidence that the shop belonged to the applicant (Noor Muhammad) and he and the opponent (Pirandita) started business jointly which was to continue for two years. After two years the partnership was discontinued and the opponent remained in the premises as licensee with the permission of the applicant. Notices were given to him to vacate but he refused." Piiandita has come in revision to this Court against the above order on the grounds that the Court had no jurisdiction to hear and decide an application under section 18 of the Karachi Small Cause Courts Act, 1929; that the Court had itself made a reference regarding the maintainability of such applications which was still pending in the High Court; therefore, in terms of Order XLVI, rule 2, C. P. C. it could only make an order contingent upon the decision of the High Court, but that it had gone wrong owing to its failure to appreciate the evidence and relevant law. Mr. Shaikh Azmatullah appearing for the applicant has elaborated the grounds by raising the following contentions in support of the revision applications:‑ (i) The learned Judge of the Court of Small Causes had no jurisdiction to try and decide the applications which were made under the said section 18 because it had been repealed. (ii) The reference should be taken to have been made under Order XLVI, rule 1, C. P. C. and not under section 113, C. P. C., and that rule 2 of that Order was a bar to making an unconditional order of ejectment. (iii) Dissolution and accounts of partnership were subject? matters for which suits could not be filed in the Court. As the determination of partnership was an important consideration for the decision of the application, the Court had no jurisdiction to decide the application. (iv) Factually the partnership had not been terminated: (v) The learned Judge relied on the statement of Noor Muhammad as to the termination of the partnership which he was not entitled to do. (vi) The shop was an evacuee property; therefore, no order directing ejectment from it could be made by a Civil Court. It was immaterial that it had been transferred to Noor Muhammad.

5. Item (vi) of counsel's argument is self‑contradictory because it is obvious that after transfer to Noor Muhammad the property could not remain evacuee property. Items (iv) and (v) relate merely to the assessment of the value of evidence; therefore, they are not relevant in revision in terms of section 115, C. P. C. Item (iii) is misconceived because the reference to partnership was made in this case simply to disclose the nature of the lincence which was withdrawn. There was documentary evidence to prove the partnership as well as its termination; thus there was no bar to the cognizance of this aspect of the case. Item (ii) is wrong because the reference has been made under section 113, C. P. C. There is no reason for treating it as under Order XLVI, rule 1, C. P. C. There was no bar to making the order which the learned Judge has made in so far as the terms of section 113, C. P. C. are concerned. The only contention which needs closer examination is item (i).

6. We take up that item together with the first part of the reference as they raise a common question. In this respect Mr. M. B. Lighari has held, as stated above; that the ejectment applications which were made under section 18 of the Karachi Small Causes Court Act, 1929 could be tried and decided by him in terms of section 6 (c) of the General Clauses Act, 1897. But Mr. S. A. Nusrat as well as Mr. S. M. Sadiq took the stand that he could not do so because there was no right, privilege, obligation or liability which in terms of section 6(c) could be said to have remained unaffected by the repeal of the Karachi Small Causes Court Act, 1929. There could be no obligation on or liability of the applicants for making such applications. As to right or privilege counsel were of the view that mere opportunity provided by a provision of law to make applications was not a right or privilege; therefore, the applications which were made under section 18 and were pending at the time of the repeal of the Act were to be dismissed as unsupported by any law. The right to evict Pirandita accrued to Noor Muhammad, according to them, under the general law because the former had lost his right to retain in his possession the shop of the latter. The manner of enforcing that right which was provided by section 18 could not be said to be a right or privilege therefore, as soon as the forum created by section 18 ceased to exist, the pending applications had to be dropped where the repeal had found them. Section 6(e) of the General Clauses Act, 1897 was also not, applicable, according to counsel, because the legal proceedings and remedy which were saved by it had to be "in respect of any such right or privilege" as was mentioned in section 6(c).

7. In short both learned counsel contended that section .18 of the Karachi Small Causes Court Act, 1929 simply provided a forum and no right or privilege; therefore, the applications which were pending under that section had to be abandoned by reason of the repeal. In their view the opportunity which Noor Muhammad had of using the forum provided by section 18 before the repeal of the law was not a right or privilege because it was only a procedure on which nobody has a right to insist. They have cited no law in support of their views because the idea at the back of their contention was that Noor Muhammad could sue in the Ordinary Courts to get the possession of the shop; therefore, the loss of a shorter procedure to achieve that object could not possibly amount to the loss of a right or privilege.

8. The last contention emphasises the difference between a right or privilege on the one band a procedure on the other hand. The demarcation of their scopes is not easy because the meaning of the word "right" has as yet not been stated with precision. Ballentine has stated in his Law Dictionary that‑ "The word is one of the most defective of pitfalls; it is so easy to slip from a qualified meaning in the premise. to an unqualified one in the conclusion. Most rights are qualified. The word denotes, among other things, property, interest, power, prerogative, immunity, and privileges, and in law is most frequently applied to property in its restricted sense. As an enforceable legal right, it means that which one has a legal right to do." Professor Roscue Pound has said at page 56 of Vol. IV of his monumental book on Jurisprudence that‑ "There is no more ambiguous word in legal and juristic literature than the word right. In its most general sense it means a reasonable expectation involved in civilized life." We can generally agree with the meaning of right given by him in the last sentence, there is therefore, consensus of almost all writers that privilege and remedy are forms of "right". Clauses (c) and (e) of section 6 of the General Clauses Act, 1897 have not, however, left these two meanings of the word `right' open to interpretation but have expressly mentioned them along with that word. Since a remedy and a privilege have been expressly saved by clauses (c) and (e) they remain unaffected, like a right by repeal; therefore, if a procedure constitutes a privilege or a remedy then it is equally saved by those clauses. There is no doubt that in suitable circumstances a procedure may also be a right. Thus the right of appeal is a procedure as well as a legal right. Whether it is more of a procedure or more of a legal right depends on which of the two aspects is more important in a given situation; therefore, the contention of learned counsel that section 18 of the Karachi Small Causes Court Act, 1929 did not confer a right because it simply provided a shorter procedure is pot a complete argument for excluding the application of clauses (c) and (e) unless counsel could further show that it was not a remedy or a privilege or a legal right. A `legal right' is that right which is recognisable and enforceable at law.

9. A legal right is less abstract than the conception which is represented by the unqualified word `right', because the unqualified word includes both juristic and legal conceptions. The juristic conceptions have their source in and pertain to what is idealistic, or to the world order as a whole, or to the social order in principle. They come out of what Prof. Roscoe Pond has called, "culoudcuckootown"; while legal conceptions and legal rights pertain. to an actual legal order. These two kinds may sometimes fall far apart because while the former belongs to the science of law, the latter belongs to a particular system of law. "Hence jurists may hold different ideas as to them without affecting the law." The two kinds of conceptions meet when the provisions of a particular legal system need to to better understood by breaking them up, like a beam of light, into the waves of thought that had combined to produce them, by passing them, as it were, through the prism of jurisprudence. The diffraction that is achieved is both realistic and colourful. Our object against his background in this case is to find out whether Noor Muhammad had a "legal right" to claim the shorter remedy that was provided by section 18.

10. The right to obtain the possession of the shop by applying to the Small Causes Court under section 18 of the Karachi Small Causes Court Act, 1929, had accrued to Noor Muhammad before the repeal. It was a legal right because it c attracted the jurisdiction that afforded the quicker remedy and was as such a privilege too. An analogy to it is to be found in Colonial Sugar Refining Company v. Irving ((1905) A C 369) in which the learned Judges have held that a right to prefer a direct appeal to the Privy Council accrued as soon as the suit was filed and had remained unaffected by the repeal of that provision and the enactment of a new provision which interposed an appeal to the local High Court. Oldfiled, J., has referred to that judgment in Triumalalisami Naidu v. Subramamnian Chettiar (I L R 1940 Mad. 1009) and has observed: "It was held not only that the right was not one merely of procedure, but also that it had vested in the suitor, before the change took place. This case was followed in Kalinga Hebbra v. Narashimha Hebbra (1911) 21 M L J 631 and Salimamma v. Valli Husanabba Beari (1911) 21 M L J 764 with reference to the right of appeal; and in Madurai Pilla v, Muthu Chetty (1915) I L R 38 Mad. 823 with reference to another consequential and contingent remedy. In Rajah of Pittapur v. Venkata Subba Row (1916) I L R 39 Mad. 645, it was applied even more generally."-- He has held that the right to sue for possession under sections 313 and 315, C. P. C. was not lost to the plaintiff although the sections had been superseded, after the institution of the suit by Order XI, rule 93, C. P. C, Noor Muhammad had a vested right in the same sense in which the petitioner was held in S. A. Seshadri v. Narayana Nair (A I R 1950 Mad. 106) to have had the right to move the Govern?ment, and Mst. Zinat Bibi was held in Karim Shah v. Mst. Zinat Bibi (A I R 1941 Lah. 175) to have had the right to pursue her petition under section 5 of, Muslim Personal Law after its repeal on the ground that: "that repeal does not affect legal proceedings which had been properly instituted under the repealed Act and such proceedings may be continued as if the repealing Act had not been passed.?

11. It is true that there is no saving clause in the repealing statute to save the pending applications and that in the absence of such a clause repeal wholly obliterates a statute from the records, as stated in Paragraph 3 of the National Planners v. Contributories (A I R 1958 Pb. 320 (F B)); but, as pointed out in Paragraph 8 of the same Judgment, section 6 of the General Clauses Act, 1897 is a saving clause which is a part of every Act passed by the Central Legislature in the same way as if it were expressly enacted in the L body of the 'repealing Act itself. Clauses (c) and (e) of that section have, for the juristic and legal reasons explained in the preceding paragraphs of this Judgment, saved the applications that were made under section 18 of the Karachi Small Causes Court Act, 1929 and were pending at the time of the repeal of that Act.

12. There is another equally important reason in support of the maintainability of those applications. It is the amendment of Article (4) of Schedule II to the newly enforced Act. The Schedule contains a list of those suits which were outside the jurisdiction of the Court; but an exception has been created by amending its Article (4). The exception .has been created by inserting the words which are shown below within brackets: "(4) A suit for the possession of immovable property (other than a suit for the ejectment of a tenant, unless any other Court or Officer has exclusive jurisdiction in the matter) or for the recovery of an interest in such property;" The words which are in parenthesis show that an exception has been created in favour of suits for ejectment of tenants but the exception too has an exception, because the exception operates if no other Court or Officer, besides the Court of Small Causes, "has exclusive jurisdiction in the matter".

13. The Rent Controller has that exclusive jurisdiction in Karachi under subsection (1) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The subsection runs as under: "(1) A tenant in possession 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." Before the Ordinance, the Rent Controller had the same exclusive jurisdiction under subsection (1) of section 10 of the Karachi Rent Restriction Act, 1953, as amended by the Karachi Rent Restriction (Amendment) Ordinance, 1962. It was as follows:‑ "(1) A tenant in possession of a premises shall not be evicted therefrom, except in accordance with the provisions of this section." The language of the above provisions is so clear that the con?clusion must be that a decree or order of ejectment of the Small Causes Court, passed after the amendment of the Karachi Rent Restriction Act, 1953, that was made on the 7th of June, 1962, cannot be effective. A Single Judge of the Peshawar Bench of this Court has held in Mst. Dilbar Jan v. Ghulam Husain Khan and others (P L D 1960 Pesh. 15) that the jurisdiction of civil Courts to try suits for ejectment has survived subsection (1) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, although their decrees for ejectment were in executable. With great respect, we differ from that view because it counsels the undertaking of a fruitless pursuit and the performance of a purposeless exercise. The provision which makes ineffective the decrees and orders of the Small Causes Courts and Civil Courts, does indirectly take away the jurisdiction to pass them.

14. The answer to the first part of the reference therefore, is that the Small Causes Court could not after the repeal and cannot now entertain the applications which were made under section 18 of the Karachi Small Cause Courts Act, 1929, and were pending at the time of the repeal of that Act, although this is not i the consequence of the repeal but is the effect of the above quoted subsection (1) of section 10 of the Karachi Rent Restriction Act, 1953, and of the above quoted subsection (1) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The revision application should thus be accepted. The order of the Judge, Small Causes Court, dated the 24th of November, 1962, is accordingly set aside and the ejectment Application No. 89 of 1962 dismissed.

15. Turning now to the second part of the reference, I may reproduce it for the sake of convenience: "* * * there are a number of revision applications filed under section 15, Karachi Rent Restriction Act, 1953, pending in this Court. The power to hear the revision applications was under clause (5) of section 5 conferred by the Central Government on the Chief Judge, Small Causes Court, who is now the Judge of the same Court, Section 15 of the Act has been substituted by new section 15 under the Karachi Rent Restriction (Amendment) Ordinance, 1962, by which the revisional powers of this Court have been taken away and the District Judge, Karachi has been empowered to hear the appeals against the order of the Rent Controller and the High Court has been empowered to hear revision against the order of the District Judge. This Court is not, therefore, entertaining any revision application after the amendment. Section 12 (3) of the Karachi Rent Restriction (Amendraent) Ordinance', 1962, however, provides that nothing in the Ordinance shall affect any suit or proceeding or any application for revision pending before any Court or authority immediately before the promulgation of the Ordinance. In my opinion, therefore, under the old authority of the Central Government, I, as Judge of the Small Causes Court, am com?petent to dispose of the pending proceedings and revision applications." Mr. Nusrat has objected to the exercise of his Jurisdiction for disposing of the revision applications on the ground that the Central Government had empowered the Chief Judge, Small Causes Court, Karachi, and not any other Judge of that Court to exercise the Jurisdiction, vide the notification published on the 8th of May, 1953 in the Gazette of Pakistan, Part I, bearing No. 5/8/52‑Kar. This objection does not appear to be sound in view of the widely worded saving provision that is found in subsection (3) of section 12 of the Karachi Rent Restriction (Amendment) Ordinance, 1962. A glance at the provision which has been reproduced in paragraph 2 above will make this clear. The saving is in favour of "any application of revision pending before any Court or authority before the promulgation" of the Ordinance.

16. The above discussion leads to the conclusion that all revision applications validly made under the Karachi Rent Res?triction Act, 1953, and pending at the time of the promulgation of the amending Ordinance could be disposed of by the Court or authority which was seized of them. This is accordingly our answer to the second part of the reference. K.B.A.???????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.