1979 PLP 534 (SCMR)

(b) it shall not be lawful for the transferee to eject such persons from the shop or the house for a period of six years . . . from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due). (2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant. (3) Nothing in proviso (b) to subsection (1) shall apply to a tenant‑ (i) who has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by Registered Post. (acknow ledgment due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or (ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop .... or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop, in any urban area with in the same town or city, who owns a house or shop, as the case may be. (4) On the expiry of the period mentioned in proviso (b) to sub section (1) or on the contravention of any of the provisions of sub section (3), whichever is earlier, the ' relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being ‑in force relating to such relationship." We do not see any ambiguity in this section. As the petitioner was in occupation of the shop at the date prescribed in the section, he became Muhammad Iqbal's tenant on the transfer of the shop by the Settlement Department to Muhammad Iqbal, and on the sale of the shop by Muhammad Iqbal to the respondent, he became the respondent's tenant. This was not disputed by Mr. Safdar Hussain. Nor is there any dispute about the rent which was to be paid by the petitioner either to Muhammad Iqbal or to the respondent. But, Mr. Safdar Hussain relied on proviso (b) to subsection (1) of the section, because it protects the tenant against eviction for a period of six years from the date of the notice prescribed under the proviso. Therefore, we would explain here that the notice prescribed under this proviso is a notice by which the transferee informs the tenant that be has become his landlord. This notice had to be given by Muhammad Iqbal on his acquisition of the shop, and although it is not known when he had acquired the shop, Mr. Safdar Hussain admitted that this statutory notice had been served on the petitioner on 9‑9‑1970. There fore, as the petitioner was not in breach of any of his obligations prescribed under subsection (3) of section 30, he could not be evicted until the expiry of six years from 9‑9‑1970. Although this period of six years expired nearly three years ago, Mr. Safdar Hussain's submission was that the petitioner could not be evicted because the eviction application against him had been filed before the expiry of this statutory period of six years. No doubt the eviction application was filed before the expiry of the statutory period of six years, but the section only prescribes that it should not be lawful to eject a tenant before the expiry of six years. Nowhere does the section state that a transferee of property under the said Act cannot file proceedings for the eviction of a tenant before the expiry of the statutory period of six years, therefore, if we were to accept learned counsel's submission, it would mean reading into the section a qualification which is not contained in it. Learned counsel then submitted' that the petitioner's case was supported by subsection (4) of section

30. There is no ambiguity whatever about this subsection either and its only effect in the instant case was that the rights of the parties could not be governed by the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the said Ordinance) until the expiry of the statutory period of six years from the date of Muhammad Iqbal, notice to the appellant. As this statutory period expired on 9‑9‑1976, if the respondent's eviction application had been allowed before this date the Rent Controller's order would have been illegal. But, as the Rent Controller's order w4s passed after 9‑9‑1976, it merely decided a right which the respondent had acquired before the date of the order. It is that the respondent had filed an eviction application prematurely, but to have dismissed it on that ground would have been to deprive the respondent of a right which had vested in him under the law. And, further, even if his application had been dismissed on the ground that it was premature when it was filed, the only result of such an order would have been that the respondent would have filed a fresh application which would have been decreed in due course, but after the proverbial delays of the law. There fore, if we accept learned counsel's submission it would amount to making a fetish of technicalities and that would defeat the very object of the Legislature in promulgating the said Ordinance. Mr. Safdar Hussain however, relied on. Order . VII, of the Civil Procedure Code and submitted that the effect of this Order was that a suit had to .be dismissed if it was filed prematurely, therefore, all applications under the said Ordinance had also to be dismissed if they were premature. Although the Legislature was aware of the provisions of Order VII of the Civil Procedure Code, it did not enact any similar provision in the said Ordinance nor has the Civil Procedure Code been made applicable in terms to proceedings under the said Ordnance. Therefore, the submission of learned counsel is based on the fallacy that the technicalities of the Civil Procedure Code should be extended to proceedings under the said Ordinance even though the Legislature has in its wisdom enacted otherwise. Secondly, in advancing this submission which he did, learned counsel assumed that a suit could be decreed only on the basis of facts as they stood at the date when the suit was filed. This' assumption too is erroneous and the correct position has been stated by Mulla in his Code of Civil Procedure (12th Edition). The learned author observes at page 612 :‑-- "Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of it institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to have the decision of the Court in the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made." This passage is in accord with the law declared by this Court in Abdullah Bhai and others v. Ahmad Din (PLD1964SC106). As in the instant case, the suit of the plaintiff‑appellant in this case was premature because he had filed it before his claim had matured into a right recognised by the law. However, as in the instant case his claim had ripened into a right during the course of the protracted litigation between the parties, and the question before this Court was whether the appellate Court was justified in decreeing the suit on the ground that the plaintiff had perfected his cause of action during the pendency of his appeal against the dismissal of his suit by the trial Court. In holding that the appellate Court had acted correctly, in decreeing the plaintiff's claim on the basis of events subsequent to the institution of his suit, this Court observed at page; "The Additional District Judge on appeal had decreed it on a date when the period of the licence had expired and the appellants had a right to possession. It was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting, which had arisen during the pendency of the suit." The principle laid down in this passage would be applicable with greater force to proceedings under the said Ordinance because the technicalities of the Civil Procedure Code are not applicable to cases under the said Ordinance, and because the Rent Controller is not a Court in the strict sense of the word. We would `however observe here that earlier authorities do lend support to the construction placed by Mr. Safdar Hussain on Order VII 'of the Civil Procedure Code. But the effect of this view was only to multiply litigation. This was for the obvious reason that if a suit is dismissed on the ground that it was premature when filed, the plaintiff was entitled file a fresh suit after he bad acquired his cause of action, therefore, the reluctance once shown by Courts to decree relief on the basis of a cause of action acquired during the course of litigation only multiplied the law's delays, and that is why there has been a gradual shift of the law towards taking a more equitable view; as in Abdullah Bhai s case. However, according to Mr. Safdar Hussain, the petitioner's case was supported to the hilt by a judgment reported in Abdul Bashir v. Muhammad Rafiq Khan Sherwani (PLD1964SC106). But as this case was criticised in Mst. Amine Begun and others v. Mehar Ghulam Dastgir (P L D 1978 S C 22), Mr. Safdar Hussain tried to resurrect it by submitting that the relevant observations of this Court in Amina Begun s case were obiter only and as there is some force in the contention that Abdul Bhai s' case distinguishable on the facts, we would briefly examine the Karachi judgment. The facts in this case were that the appellant‑landlord had sought the respondent's eviction on the ground of non‑payment of rent and on the ground that he required the demised premises for his own use. The respondent‑tenant denied both these allegations as false, and further, as in the instant case, the demised premises had originally been evacuee property, therefore, the landlord‑appellant had served the statutory notice on the respondent under section 30 of the said Act, but as he had filed his eviction application before the expiry of the statutory period of six years from the date of this notice, the respondent was entitled to resist his plea that he required the demised premises for his own use on the ground that the claim for eviction was premature. Unfortunately, the judgment under appeal does not state whether the respondent had raised this plea, but it is clear from the judgment that the respondent had denied the allegation that the appellant‑ landlord required the demised premises for his own use. The Rent Controller held that the respondent had never been in default in the payment of rent and as he also held that the appellant‑landlord had failed .to prove that he required the demised premises for his own use, the eviction application was dismissed. The appellant‑landlord's appeal against the Rent Controller's order was dismissed by the District Court, Karachi, therefore, he filed a second appeal in the Sind & Baluchistan High Court which was heard after a delay of more than seven years. As this was long after the expiry of the statutory period of six years prescribed under section 30 of the said Act, it would appear from the judgment that the appellant's plea in the High Court was that the fact that his eviction application had been filed before the expiry of the statutory period of six years was not material, because this statutory period had expired during the pendency of the appeal in the High Court, and to support of this plea. the appellant‑landlord had relied on a well‑considered judgment of the Peshawar High Court in M. Wahabuddin & Sons v. Controller of Rents (P L D 1971 Pesh. 236), and on the ratio of this Court's judgment in Abdullah Bhai's case. The learned Judge held that the appellant‑landlord had failed to prove that he required the demised premises for his own use and as he also agreed .with the concurrent findings of the lower Courts that there had been no default in the payment of rent by the respondent, the appeal should have been dismissed on this short ground. Instead the learned Judge Entered in to an unnecessary disquisition about this Court's judgment in Abdullalr Bhai s case and did not follow it, because he appears to have been of the view that Abdullah Bhai's case was not relevant to the construction of section 30 of the said Act. Mr. Safdar Hussain relied on the following observations of the learned Judge on the scope of section 30 of the said Act :‑ ' As I read subsection (4) of section 30 of the aforesaid Act, it appears to me plan that since the provisions of the Ordinance in regard to relationship of landlord and tenant do not apply during the subsistence of the protection to the tenant under the Act, no application can be made by the landlord for the ejectment under the Ordinance of the tenant or if made, can be entertained by the Controller, during the subsistence of the protection. The making or entertainment of such an application would be a proceeding under the Ordinance, and since the Ordinance is not to apply during the subsistence of section 30 the proceeding would be in contravention .of the provisions of section 30 of the Act." With respect, the observation that "no application can be made by the landlord for the ejectment under the Ordinance of the tenant . . ." is not supported by the language of section 30 of the said Act because sub section (4) on which the learned Judge relies merely prescribes that "the relationship of landlord and tenant between the transferee and the tenant' shall not be regulated in accordance with the said Ordinance until the expiry of the statutory period of six years prescribed in sub section (2) of the section. Clearly, the effect of this provision was that the said Ordinance did not govern the rights of Bashir Ahmad in the case cited until the expiry of the statutory period of six years and the eviction application could not have been decreed before the expiry of this statutory period. But the section does not state that the eviction application of a transferee landlord, which was premature when filed, must be dismissed even after the expiry of the statutory period of six years, because it was defective when filed. And, the further question whether such an application should or should not be allowed is one which has to be decided solely on the basis of the law declared by this Court in Abdullah Bhai's case. Therefore, the view taken in Abdul Basher's case is not good law and we agree with the view taken by Shahnawaz, J., in his well‑considered order. Learned counsel then submitted that the learned Judge had misread clause (3) of section 6 of the West Pakistan General Clauses Act, 1956. In order to understand this submission, we may explain here that the learned Judge had dismissed the appeal of the petitioner on the further ground that section 30 of the said Act was not relevant to his contentions, because the said Act had been repealed before the respondent had filed his eviction application. According to the learned counsel, the view thus taken by the learned Judge was contrary to the provisions of clause (c) of section 4 of the West Pakistan General Clauses Act, 1956. And, further according to learned counsel, the proper construction of this clause was a question of laws of great importance. We agree that the proper construction of this clause is a question of importance, but on the view we have taken, it is not necessary to decide this question which we would leave open for a more.. appropriate occasion. The petition is without merit and is dismissed, but we allow the petitioner four months time to vacate the demised premises provided he continues to deposit the monthly rent according to the said Ordinance. Petition dismissed.