1986 PLP 1883 (CLC)

Dates of hearing: 9th arLd 14th April, 1986. This appeal has arisen from the order of Xth Senior Civil Judge and Rent Controller, narachi, dated 6th February, 1963, whereby the ejectment application filed by the appellant was dismissed. The facts of the case as disclosed in the memo. of appeal are that the disputed premises which admittedly belongs to the appellant was originally let out to respondent, Mst. Mehar Razi. As she fell in arrears of rent a case of ejectment was filed against her. During pendency of ttie saio ejectment proceedings, Pixy Dale School allegedly being run in the disputed premises was taken over by the Government under M.L.R.

118. There upon the respondent, Mst. Mehar Razi moved two applications one under Order VII, rule 11., C.P.C. for rejecting the ejectment application and another under Order 1, rule 10, C.P. C. for joining Director, schools as party. Meanwhile as the said respondent No.1 stopped depositing the rent in made an application for striking off defence. However, allowing the application under Order VII, rule 11, C.P. C., the learned Rent Controller rejected the ejectment application by his order, dated 20‑3‑1974. Appeal filed against this order was allowed and the case was remanded back to the Rent Controller with, direction that the Director, school be joined as party and the case be heard afresh. Accordingly the Director was joined as a party and tentative order was passed once again, this time calling upon the respondent No. to pay the rent arrears as well as monthly rent by specified date. As the said respondent committed default in respect of the tentative order, the appellant moved an application for striking off his defence. However, the learned Controller was satisfied with the explanation furnished on behalf of the respondent No4 and consequently disallowed the application for striking off his defence. Against this order the appellant filed appeal which was allowed by Ist appellate Court. The respondent No. 2 challenged the order of the said Court in second appeal in this Court and the same was allowed and the case was again remanded back to the Rent Controller. Thereafter the Government of Sind by notification, dated 29th July, 1980, issued under section 3(2), Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) exempted the premises of all schools and colleges taken over under M.L.R. 118 from the application of the Ordinance. On the basis of this notification the learned Rent Controller by his order, dated 6th February, 1983 held that he is not competent to deal with the case which relates to the school taken over under M.L.R. 118 and dismissed the ejectment application, It is this order which has been impugned in the present appeal. I have heard the arguments of the appellant who also happens to be an .Advocate and learned A.A.‑G. Mr. Abdul Ghafoor Mangi. I hav"also gone through the authorities that have been cited at the bar in support of the learned counsel's respective arguments. It was contended by the appellant that the notification referred to above which has been made the basis for dismissal of his ejectment application is not applicable in his case, as it cannot be given retrospective effect. He submitted that since this case was initiated much before the issuance of the notification, it is not covered by the said notification. As against this argument the learned A.A.‑G. expressed his view that since the notification envisages only change of .forum which is basically a procedural change, it can be applied retrospectively. In‑ order to appreciate the above arguments of the learned counsel, I may refer to the authorities relied upon by them. The learned A.A.‑G. ‑in support of his arguments. placed reliance on the case of Khadija Merchant v. The K.M.C. 1983 C L C

535. In this case the learned Single Judge expressed his views as under:‑ "The Ordinance of 1979 confers special remedy upon landlords to invoke jurisdiction of Rent Controller in certain circumstances. The notification in question has taken away 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." On the other hand the appellant has relied upon the later authority of this Court which is reported as Salim Akbar v. The Government of Sind P L D 1984 Kar. 358 wherein it was held: "Now; taking up the first point it may be stated that there is no indication in the 1979 Ordinance that the powers under section 3 could be exercised retroactively at any time and there is also no indication in the notification that it was intended to exempt the properties with retrospective effect so as to affect the pending proceedings. It could not have been done for it is well‑settled that a notification issued under the purported exercise of the delegated powers under a law cannot ~ be made to operate retroactively so as to impair an existing or vested right or impose a new liability of obligation." However, it was argued before the learned Single Judge that the notification did not affect any right but it only changed the procedure and forum and, therefore, it was rightly applied to the pending proceedings. In support of this argument reliance was also placed on the case of Mst. Khadija Merchant referred to above. Thus, the learned Single Judge also examined the said case decided earlier by another Single Bench of this Court. He has also reproduced the relevant passage from the Supreme Court authority reported as .Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187, on which reliance was placed in the earlier case of Mst. Khadija Merchant. It is 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 Co. Ltd. v. Irving 1905 A C 369 is that 'if the matter in question be a matter of procedure only', the provisions would be retrospective. 'On the other and, 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 retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Ltd. (1875) 1 Ch. D. 48 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 right. 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 questions 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 retroactively. 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 retroactive 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 retroactive application will 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 retroactively:" After considering the view taken in the case of Mst. Khadija Merchant in the light of above Supreme Court authority the learned Single Judge expressed his views as under:‑ "In the light of the above observation I have to consider what is the effect of the notification? Does it affect the procedure or changes the forum only or does it affect the rights of the parties? If I examine the provisions of the Ordinance, 1959 or 1979 Ordinance, it would be obvious that it has conferred certain rights on a landlord and certain rights on a tenant and similarly it imposes certain obligations on them. For example a landlord is given a right to evict a tenant in case he makes default in payment of rent, without the permission of the landlord uses the premises for the purpose other than that for which it was let out or commits acts which impair the material value or utility of the premises let out to him. Similarly a tenant could not be evicted except on the grounds mentioned in the relevant section of the Ordinance. These rights have not been conferred on such persons by or under any other law including the Transfer of Property Act, wherein the rights and obligations of lessor or lessee are governed by the provisions of sections 105 to

117. Now, therefore, if a tenant has committed an act whereby a landlord has become entitled to evict a tenant and a landlord had filed a case he has acquired a vested or substantive right. It will, therefore, not be a matter of procedure. Further it will also not be a matter of change of forum for he cannot proceed with the case before any other Court or forum on the same grounds or on the same cause of action". I am in full agreement with the above views expressed by the learned Single Judge in the case of Salim Akbar. Accordingly the view taken by the learned Rent Controller that in view of the notification issued by the Government he had no jurisdiction was clearly erroneous and cannot be supported. I, therefore, set aside the impugned order passed by the learned Rent Controller and remand the case back to 1 the Court of Rent Controller having the jurisdiction with direction that it may be decided on merits in accordance with law. Consequently the appeal is allowed with no order as to costs. A.A. Appeal allowed.