1984 PLP 2522 (CLC)

(a) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S.21‑‑Ejectment‑‑Default in payment of rent‑‑Tenant failing to cross -examine landlord or to examine himself and his witness in evidence in spite of time having been granted to him‑‑Conduct of tenant making it impossible for Rent Controller to proceed with trial and continuance of proceedings appearing to be intended to cause harassment to landlord‑‑Rent Controller accepting ejectment application not on a ground based on any technical rule of law or on ground that tenant committed default in producing evidence but on ground that since there was no rebuttal on record against evidence produced by landlord his case stood established‑ Decision of Rent Controller arrived on merits and on evidence produced by landlord‑‑Ejectment order upheld. (b) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 27, subsections (3) 3 (4) [as added by Sind Rented Premises (Amendment) Ordinance (II of 1980)]‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959),5.13‑‑Ejectment application‑‑Procedure for disposal ‑‑Effect of provisions of subsections (3) and (4) of S.27 of Ordinance XVII of 1979` Stated‑‑No person, held, has a vested right in any course of procedure‑ ‑Riglits of parties to be regulated in accordance with Ordinance of 1959; procedure to be adopted for disposal of old cases would be under Ordinance of 1979. P L D 1969 S.C. 187 ref. Abdul Retman v. Ahmad Khan P L D 1982 Kar. 532 6 P L D 1983 S C 21 rel. This first appeal arises out of the order dated 17th February,1980 passed by the learned Vth Rent Controller, Karachi, in Rent Case No.207/ 1978. The brief facts of the case are that the appellant is tenant of the respondent in respect of the Shop No. 3 situated on portion of Plot No.60/F, Block III, Nazimabad, Karachi, on agreed rent of Rs.100 per month. The respondent filed an ejectment application on the ground that the appellant is a persistent defaulter and never paid rent in time. He has not paid anything towards the rent and for electric charges since November,1977, and thus, a sum of Rs.700 is due from him on account of arrears of rent and Rs.105 on account of electricity charges. The respondent has also averred in the application that the appellant had also made structural changes in the shop and thereby impaired its utility and value and also sublet the demised premises to one Mehboob Shah. The appellant filed his written statement and denied the various allegations made against him, and averred therein that the respondent used to collect the rent after long intervals. The appellant never committed default when the respondent deliberately avoided to collect the rent, the appellant sent rent by money order which was also refused by the respondent. Therefore the appellant deposited the rent under S.13(vi) by an order of the learned Rent Controller in Misc. Application No.1894/1978 and has been depositing the rent in the‑ Court from month to month and no default has keen committed by the appellant. He has also averred therein that value and utility of the shop has not been impaired by any act of the appellant and the respondent was accepting the rent from Mehboob Shah from the last so many years and never raised any objection and was issuing receipts in the name of the appellant. The learned Rent Controller by his order dated 28th September,1979 framed the following issues: Issue No.1. Whether the opponent has committed default? Issue No.2. Whether the opponent has impaired the value of the property? Issue No.3. Whether the opponent has sublet the premises? Issue No.4.What should the order be? The respondent examined and produced himself as PW‑1 (Exh.1) on 18th January,1979 and he also examined and produced PW‑2 Malik Anwar (Exh.2) as his witness. The appellant did not cross‑examine the said two witnesses and the case was adjourned to 24th January,1979. On 24th January,1979 an application was filed by the appellant/tenant on the ground that his counsel was busy before the High Court and the case was adjourned to 7th February,1979. On 7th February,1979 the appellant filed an application for summoning the respondent for cross‑examination. Copy of the application was supplied to the respondent and the case was adjourned to 18th February, 1979. On 18th February,1979 the case did not proceed and was adjourned to 10th March,1979 for the same purpose. On 10th March,1979 the case was again adjourned on the request of the appellant to 31st March,1979. On 31st March,1979 the appellant filed an application for adjournment on the ground that his counsel was busy before Hon'ble Federal Shariat Court as such the case was adjourned to 7th April,1979. On 7th Apri1,1979 the appellant filed an application for recalling the respondent for cross examination. The application was allowed on 24th April,1979 on payment of Rs.50 as costs and the case was adjourned to 6th May,1979. On 6th May,1979 the appellant paid Rs.50 to the counsel for the respondent and the case was adjourned to 24th May,1979.The case did not proceed but adjourned from time to time till 8th November,1979. However, on 8th November,1979, when the case was called for hearing and cross‑examination of the respondent, an application for adjournment was made on the ground that the appellant/tenant had gone to perform Haj. Accordingly the case was adjourned to 22nd November,1979 on the condition of payment of Rs.50 as costs. It was, however, clearly stated in the order dated 8th November,1979 this would be the last opportunity to appellant/tenant for cross‑examination of the respondent/landlord. On 22nd November,1979, the counsel for the appellant was not available and an application for adjournment was made on the ground that he had gone to India. The application was reluctantly granted and last chance allowed to the appellant and the case was adjourned to 6th December,1979. On 6th December,1979 the case was called several times and the appellant and his counsel were called absent. The respondent was not cross‑examined and his side was closed and the case was adjourned to 23rd December,1979 for the evidence of the appellant. On 23rd December,1979 and 6th January,1980 the appellant was not present. The side of the appellant was closed on 6th January,1980 and the case was adjourned to 22nd January,1980. On 22nd January,1980 the parties' counsel were present. The appellant filed an application under section 27(2) of the Sind Rented Premises Ordinance and at his request the case was adjourned to 11th February,1980. On 11th February,1980 the parties' counsel were present and the case was put off to 16th February,1980 for arguments. On 16th February,1980, both the appellant and his counsel were called absent, the learned Rent Controller dismissed the application as having become infuctuous and not maintainable in view of two subsections (3) and (4) added by Ordinance No.2 of 1980. The case was adjourned to 17th February, 1980 for final orders. The learned Rent Controller found that the evidence of the respondent had already concluded and no rebuttal to the same had been produced, he held that the application of the respondent stood proved. He, however, accepted the ejectment application by his order dated 17th February,1980 and directed the appellant to vacate the disputed shop within thirty days and hand over its possession to the respondent. The appellant being aggrieved, filed this appeal on the grounds mentioned in the Memo. of Appeal. The learned counsel appearing for the appellant has in support of this appeal, raised the following points:‑ (1) That the learned Rent Controller had ordered the ejectment of the appellant without affording reasonable opportunity. (2) That the learned Rent Controller had failed to exercise jurisdiction vesting in him and not following the procedure laid down in the Sind Rented Premises Ordinance,1979. The first contention of the learned counsel for the appellant has no substance in it. As shown in proceeding paragraphs the appellant/tenant had been granted at first time, to cross‑examine the respondent and later time to produce his evidence but he failed either to cross‑examine the respondent or to examine himself in evidence. The appellant had, therefore, clearly not only failed to cross‑examine the respondent but also failed to produce his own evidence in rebuttal in spite of time having been granted to him. The conduct of appellant in failing to cross‑examine and failing to produce evidence on the first occasion and failing on subsequent occasions to cross‑examine and/or produce his own evidence had clearly made it impossible for the Rent Controller to proceed with the trial of the case continuance of proceedings appeared only to be intended to cause harrasment to respondent. The decision of the Rent Controller is not based on any technical rule of law. He has not passed the order of acceptance of ejectment application on the ground that the appellant had committed default in producing evidence. On the other hand, he has said that since there is no rebuttal on record against the evidence produced by respondent, his case stands established and his application is consequently accepted. This is clearly a decision on merit based on evidence produced by the respondent. There is no force in the second contention of the learned counsel for the appellant. In order to appreciate the argument of the learned counsel it is advantageous to reproduce section 27(2) (3) and (4) of the S.R.P. Ordinance, 1979. (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 sub‑section (1) shall, notwithstanding the repeal thereof, be disposed in accordance with said Ordinance. (3) All other cases instituted under the Ordinance mentioned in sub‑section (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) Notwithstanding the provisions of sub‑section (2) all orders made in pursuance thereof and orders made under the Ordinance mentioned in sub‑section (1) in any proceedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provisions of section 22." By Ordinance No.2 of 1980 subsections (3) and (4) were added in section 27 of the Sind Rented Premises Ordinance, 1979. The effect of those provisions is that after the amendment 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 provisions of this Ordinance, Mr.Majid the learned counsel for the respondent relied on Maxwell 11th Edition page 217, "Where it is stated that the general principle, however seems to be that alternations in procedure are retrospective, unless there be some good reason against it." In my opinion there is force in the contention of Mr. S. A. Majid. It is well‑recognised that no person has a vested right in any course of procedure. In this connection learned counsel for the respondent has referred to the case of Adnan Afzal v. Cap: Sher Afzal P L 0 1969. S C

187. Th relevant observations made by the Supreme Court in the above case are a under:‑ "The general principle with regard to the interpretation of statutes as laid down in the well‑known case of the Colonial Super Refining Company Limited 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 hand, 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 Jassel, Master of the Rolls, in the case of In re: Joseph Suche 3 Co. Limited (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 rights." The next question, therefore, that arises for consideration is as to what are matters of 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 Court 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." From the above observation it would appear that a law relating to remedy is merely procedural. Section 27 referred to above was however amended by the Sind Rented Premises Ordinance,1980. A reference to the aforesaid amending Ordinance would show that it came into force at once and further provided that it be deemed to have taken effect and/or from 21st day of November, 1979 which is incidentally the date on which the Sind Rented Premises Ordinance, 1979 was published in the Sind Government Gazette. I am fortified with the view in the case of Abdul Rehman v. Ahmad Khan P L D 1982 Kar. 532 of Division Bench of this Court held as under: "Mr.Usman Ghani Rashid states that the words "and disposed of in accordance with the provisions of this Ordinance" indicate that the rights of the parties shall have to be regulated in accordance with the new Ordinance, so that if the new Ordinance, had saved hotels from the purview of eviction proceedings before the Controller, even the old cases could not proceed. We have considered this argument with some anxiety, and we are of the view that the words "be continued and disposed of in accordance with the provisions of this Ordinance" have two separate disjunctive clauses. These words mean that proceedings instituted under the old Ordinance shall be continued, and such words preserve and protect the basic rights of the parties, and the further words, that the proceedings shall be disposed of in accordance with the provisions of this Ordinance, refer to the procedure that is to be adopted. It is only thus that the clauses can reconcile. These words indicate that the rights of the parties have to be regulated in accordance with the old Ordinance, with the but the procedure, that has to be adopted for the disposal of the old cases, would be under the new Ordinance. There is a further angle from which this matter could be viewed. If we refer to sub‑section (2) of section 27 of the new Ordinance, we find that all cases, which were fixed before the Controller, either for arguments or delivery of judgment, had to be disposed of in accordance with the old Ordinance," would be of new Ordinance." This decision was approved by the Supreme Court reported in P L D 1983 S.C.

21. In the light of the above discussion the appeal is dismissed, with no order as to costs but I grant four months' time to vacate the premises on the condition that the appellant shall continue to deposit rent in terms of the learned Rent Controller's order. However in case he will make default the respondent shall be entitled to file the execution before the expiry of the above‑mentioned four months' time. M.Y.H. Appeal dismissed.