P L D 1957 (W (PLP)

LARI, J.

The plaintiff is the landlord Mutawali of a bungalow on plot bearing survey No. 50/4/9, Sheet G. E. situated at Manekji Road, Garden East, Karachi. It originally belonged to a Hindu who sold it to the plaintiff by means of a registered sale-deed dated 20th March, 1949. This sale was subsequently confirmed by Custodian, Evacuee Property, Karachi, on 6th March 1950.? By means of the sale-deed the original owner had also transferred his right to receive all rents and profits that accrued after 17th August 1948, in respect of the bunglow in question. The bungalow was allotted to Syed Hamid defendant No. 5 on 12th May 1948. This Syed Hamid returned to India in the beginning of 194) and did not visit Pakistan till sometime in 1955 during the pendency of the present suit. While leaving, Syed Hamid left the ground floor in possession of his daughter Mst. Sufia Qadir defendant No. 1 and the first floor in possession of defendants 2 to 4 who are absolutely unconnected with the defendant No. 1 or defendant No.

5. The plaintiff's case is that allotment made to Syed Hamid was illegal and void inasmuch as Sind Rent Restriction Act X of 1947, under which the allotment was made was not existing on the date of allotment, and at any rate Syed Hamid was a statutory tenant entitled only to possession and with his departure to India his rights came to an end and at any rate defendants Nos. 1 to 4 were trespassers. The plaintiff further alleged that reasonable rent of the bungalow would be Rs. 550 p. m. This suit had originally been filed against defendants Nos. 1 to

4. Defendants 2 and 4 did not appear and the case proceeded ex parte against them. Defendant No. 1 filed a written statement in which she alleged that she had been in possession of the bungalow since its allotment in favour of her father Syed Hamid who had obtained the allotment for the benefit of himself and his family. Syed Hamid had sufficient property at Delhi and so he left for Delhi in order to see that none of his property was declared evacuee property. Syed Hamid had got the bungalow allotted for his personal use as well as for running a private school and so before he had left for Delhi he gave directions and advice to the Defendant No. 1 for running the school and accordingly the ground floor was being used for running a school and her residence. The first floor had been given for temporary use to defendants 2 and 4 without any stipulation as to rent or compensation on the undertaking to vacate the same when it would be required by the defendant. The defendant No. 1 further alleged that when the bungalow was allotted it had no sanitary arrangement or water connections and she had arranged for all these at an expense of about Rs. 5,

000. Bar of section 9 Rent Restriction Act was also pleaded. Syed Hamid was subsequently made a defendant in the case. He filed a written statement on 22nd December 1954, in which he alleged that he had obtained the bungalow for himself and his family. He got water and sanitary fittings fitted in the bungalow along with doors and windows at a cost of Rs. 5,

000. He came to know of the activities of the Indian Custodian Department at Delhi and accordingly he left with his wife to safe-guard his interest in those properties. He, however, did not abandon or relinquish the bangalow and had no intention of doing so and that he has always been anxious to migrate to Pakistan. The defendants 1 and 5 alleged that mesne profit could not exceed Rs, 150 p. m. They also alleged that Court Fee paid was insufficient. The following issues were framed (1) Are the defendants 1 to 4 trespassers (2) Was the premises in suit allotted to defendant 1's father Syed Hamid in 1948 as a tenant of the same ? (3) Is the defendant No. 1 in legal and peaceful possession of the same as the co-occupant and joint tenant with her father and his unmarried daughters, etc. ? (4) Is the suit barred by section 9 and other provisions of the Rent Restriction Act 1947, as amended by the amending Act of 1948 ? (5) Are defendants Nos. 2, 3 and 4 the licencees of defendant No. 1 for the portions of the house in their possession ? (6) Has the defendant No. 1 spent Rs, 5,000 or so towards the completion of sanitary requirements, water connection and other amenities of the bungalow towards the rent and adjustable and refundable to her ? (7) Is the suit for mesne profits for the period before the confirmation of the sale of property in dispute barred by the Evacuee Property Ordinance XV of 1949 ? (8) Whether any cause of action arises for ejectment and mesne profits against the defendants ? (9) Whether the suit is barred for the misjoinder of un?necessary parties ? (10) Whether the suit is frivolous and vexatious and the defendants are entitled for special cost under section 35-A, Civil P. C. ? (11) What amount is due to the plaintiff, if any from the defendants, as damages for use and occupation (mesne profits). (12) Whether the defendant No. 5 abandoned or relinquished his tenancy rights in the premises in question ? (13) Whether order of the allotment dated 12th May 1948, in favour of the defendant No. 5 was made without jurisdic?tion and is valid ? (14) Whether the Court fee is insufficient ? The Plaintiff: examined himself and Ismail P. W.

2. The defendant examined Mrs. Sufia Qadir D. W. 1, Saeeduddin D. W. 2 and Maulvi Syed Hamid D. W.

3. The Plaintiff Haji Adam Haji Pir Muhammad P. W. 1 pleaded ignorance as to whether the bungalow had been allotted to Syed Hamid or not. He, however, had to admit that the defendants were in possession of the bungalow. The witness further deposed that mesne profits of the bungalow would come to Rs. 555 p.m. Ismail P. W. 2 is a formal witness and deposed that bungalow was meant for residential purposes. He admitted that the defendants reside in the bungalow. Mrs. Sufia Qadir D. W. 1 stated that her father obtained allotment order Exh. 6/3. At the time of allotment the bungalow was incomplete, so her father applied and secured permission for completing the same froth Municipal Authorities. Her father bad considerable property in Bharat and in order to save them he went back to Delhi and was residing there. She alleged that she had spent Rs. 5,000 on completing the bungalow by the time the suit had been instituted. She had filed an application for determination of fair rent before the Rent Controller which was still pending. In cross-examination the witness stated that her father left before introduction of permit system and had not come to Pakistan thereafter. Her father had not obtained nationality certificate from Pakistan and continued national of Bharat. Muhammad Yunus, Mst. Fatma and Mahfooz Elahi, defendants 2 to 4 were mere acquaintances. They were occupying the first floor and she did not charge any rent from them. According to her Mst. Fatma and Mahfooz Elahi were residing since 1948. According to her statement the first floor, servant quarters as well as garage were in possession of defendants 2 to

4. She further admitted that she had applied for issue of allotment in her name on the allegations that she was a tenant. Saeeduddin, D. W. 2 is a contractor. He stated that he got doors made and fixed and also arranged white-wash of the building at the instance of the father of Defendant No.

1. Rs. 1,600 have been spent over these constructions. He admitted that Syed Hamid left after having the above mentioned work done. Maulvi Syed Hamid, D. W. 3 stated that he lived in the bungalow for about 5 or 6 months. "Thereafter he received information that if he did not return to India immediately, all of his property would be taken over by the Custodian. He accordingly left for India. But he had no idea of abandoning the bungalow and all along wanted to return to Karachi when possible. In cross-examination he admitted that he was a national of India and had come to Pakistan on Indian Passport and Permit. He further admitted that he came for the first time after 1948, either towards the end of 1954, or in the beginning of 1955. He had returned to India towards the end of 1948, or beginning of 1949. He did not think it necessary to inform the Rent Controller that he was going temporarily. His wife had also accompanied him as she had also property there. The parties also tendered in evidence certain documents which will be taken note of at their proper places. Decision with reasons thereof Issue No. 2.-Was the premises in suit allotted to defendant 1's father Syed Hamid in 1948 as a tenant of the same ? Allotment order Exh. 6/3 is clear on the point. It shows that the bungalow in question was allotted to Syed Hamid under section 15 (1) of Rent Restriction Act X of 1947. Issue No. 13.-Whether the order of the allotment dated 12th May 1948, in favour of defendant No. 5 was made without jurisdiction and is valid ? A similar question arose in Suit No. 279 of 1954, which I decided only a few days back. I held therein that allotments made after 29th March 1948, under Sind Rent Restriction Act, X of 1947, were valid. I have given full reasons for this finding. My observations therein are reproduced below: " It has been argued by the learned counsel for the Plaintiff that Sind Rent Restriction Act X of 1947, came to an end on 27th March 1948, and any order purporting to have been made under the original Sind Rent Restriction Act or amended Sind Restriction Act was inoperative. It is true that Sind Rent Restriction Act X of 1947, died its natural death on the midnight of 27th March 1948,-vide, Mufti Masroor Ahmad v. R. M. Mithani (P L D 1953 Sind 20). It was, however, argued that all acts done or purporting to be done under the Sind Rent Restriction Act X of 1947, were validated by Ordinance I of 1953. The counsel for the Plaintiff replies that the Ordinance itself was repealed by Act VIII of 1953. I have, therefore, to determine what is the effect of Ordinance I of 1953 and Act VIII of 1953, on the allotments purporting to be made under Sind Rent Restriction Act after 27th March 1948, as was the position in this case. It has already been noted that the original allotment order made on 8th November 1948, was modified by allotment order dated 18th April 1949. Karachi Rent Restriction Ordinance I of 1953, was gazetted on 24th February 1953. I may here quote the relevant sections: Section 1 (3).-It shall come into force at once and shall be deemed to be taken effect on the 28th day of March 1948. Section 2 (5).-Act means Sind Rent Restriction Act 1947. Section 29.-Every person from time to time appointed or deemed to have been appointed as controller under the Act shall be deemed to have been so appointed under and for the purposes of this Ordinance. Section 32.-Any order or rule made under the Act or purporting to be made thereunder after the 27th day of March 1948, shall, in so far as it is not inconsistent with the provisions of this Ordinance, shall be deemed to have been made under the provisions of this Ordinance and shall have effect accordingly. Section 15 of the Rent Restriction Act X of 1947, which empowered the Controller to allot premises and section 19 of the Act conferring revisional powers on the Provincial Government and making it final authority were reproduced in sections 15 and 19 of the Ordinance. The effect of the sections 1 (3), 2 (5), 29 and 32 read with provisions of sections 15 and 19 of the Ordinance is that all allotments purporting to be made under Sind Rent Restriction Act X of 1947, were validated and became legal. This Ordinance was admittedly repealed by Karachi Rent Restriction Act 1953. Section 29 of the Act is to that effect. The question is, does the repeal of the Ordinance take away the effect of the Ordinance ? Reference was made by the plaintiff to the case M. M. Isphani Ltd. v. Haji Muhammad Sultan (P L D 1955 Sind 78). My brother Muhammad Bakhsh, J., observed " The learned advocate for the defendant has relied on Ordinance I of 1953, and argued that in this Ordinance the power of allotment was there and, therefore, this order was saved. But this Ordinance was repealed by the Act of 1953 and the effect of repeal is as if the Ordinance never existed on the Statute Book." I regret I cannot endorse the above observation. It seems that provisions of section 6 of the General Clauses Act were not brought to the notice of my brother Muhammad Bakhsh, J. Section 6 of the General Clauses Act X of 1897 runs thus :- " 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) revive anything not in force or existing at that time at which the repeal takes effect ; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or (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, forfeiture or punishment may be imposed as if the repeating Act or Regulation had not been passed." The provisions of sub-clauses (b), (c) and (e) are too clear and explicit to need any comment. I may point out that by virtue of section 30 an Ordinance under section 42 of the Government of India Act 1935, is deemed to be included in the expression Central Act. Two points could be raised though they were not raised in this case. One is that the Ordinance was temporary and its effect was intended to be for a limited period. There are cases which have some bearing on the point. But in view of the provisions of section 30 of the General Clauses Act the objection would have no force as the provisions of section 6 clearly con?templated that the effect of repeal in case of Ordinance would be the same as in case of an ordinary Act. The second objection may be that section 6 of the General Clauses Act applies to repeals simpliciter. If a repeal is accompanied by re-enactment then section 6 of the General Clauses Act will have no application. To this effect is the decision of Allahabad High Court in case (Firm) Danmal?Parshotam Das v. (Firm) Babu Ram-Chhote Lal (A I R 1936 All. 3) and in case Benares Bank Ltd., v. Shri Sri Parkasha Bhagwan Das and others (A I R 1946 All. 269). These cases no doubt laid down that where a repeal is accompanied by re-enactment then the provisions of section 6 would not apply. There are authorities to the contrary as well. In Statutory construction by Crawford at page 657 the following passage occurs :- " The authorities are divided as to the effect of simultaneous repeals and re-enactments. Some adhere to the view that the rights and liabilities accruing under the repealed Act are destroyed, since the statute from which they sprung has actually terminated . . . . . . Others, and they seem to be in the majority, refuse to accept this view of the situation, and consequently maintain that all rights and liabilities which have accrued under the original statute are preserved and may be enforced." The aforesaid two decisions of Allahabad High Court were dissented from by a full bench in case P. R. Krishin Rao v. Municipal Sales Tax Officer (A I R 1954 Tr. Co. 518). Assuming that the view expressed in 1936, Allahabad page 3 is correct the present is not a case of repeal and simultaneous re-enactment. Sind Rent Restriction Act X of 1947, was a composite legislation. It dealt with two subjects, allotment of premises and determination of fair rent. The Karachi Rent Restriction Act VIII of 1953, on the other hand had nothing to do with allotments, but mainly concerned itself with determination of fair rent and consequential proceedings. The position, therefore, is that the Karachi Rent Restriction Act did not enact the provisions of Karachi Rent Restriction Ordinance I of 1953, regarding allotment. The entire Ordinance was repealed by enactments there, regarding allotments were not repealed in the Karachi Rent Restriction Act. Therefore, so far as legislation with regard to allotment is concerned Ordinance was repealed without simultaneous re-enactment. In regard to allotments, therefore, there was pure and simple repeal and even according to the dictum of Sir Shah Suleman the provisions of section 6, General Clauses Act would apply to such a repeal. I have given anxious consideration to the points involved and have come to the conclusion that allotment orders purporting to be made under Sind Rent Restriction Act after 27th March 1948, were validated by Ordinance I of 1953, and its repeal by Karachi Rent Restriction Act of 1953, has not affected the validity of these orders." The result is that allotment dated 12th May 1948, in favour of defendant No. 5 was valid. Issues Nos. 1, 3, 5 and 12 Issue No. 1.-Are the defendants 1 to 4 trespassers ? Issue No. 3.-Is the defendant No. 1 in legal and peaceful possession of the same as the co-occupant and joint tenant with her father and his unmarried daughters, etc. ? Issue No. 5.-Are defendants Nos. 2, 3 and 4 the licensees of possession of the same as the co-occupant and joint tenant possession ? Issue No. 12.-Whether the defendant No. 5 abandoned or relinquished his tenancy rights in the premises in question ? These issues can be conveniently disposed of together. It has been argued by the learned counsel for the plaintiff: that Syed Hamid was at the best a statutory tenant and had merely a personal right to retain possession of the premises. There is force in this contention. In the case of Keeves v. Dean ((1924) 1 K B 685), it has been decided that the right of a statutory tenant is a personal right and cannot be assigned. In the case of Roe v. Russell ((1928) 2 K B 117), it has been held that a statutory tenant could not assign or sublet his tenancy of the whole of the premises whether for value or not. In the case of John Lovibond and Sons, Limited v. Vincent ((1929) 1 K B 687), Scrutton, L. J., observed " His right is a purely personal one, and as such, unless the statute expressly authorizes him to pass it on to another person. must cease the moment he parts with the possession or dies." In case of Sutton v. Dorf ((1232) K B Vol. II, p. 304), all the cases quoted above were reviewed and approved. The point has been succinctly stated in Halsbury's Laws of England Vol. XX, page 334 para. 401: " A statutory tenant has no estate or property as tenant but merely a personal right to retain possession of the property." I may here refer to one Indian case as well. In case of Baldeodas Mahavirprasad v. G. P. Sonavalla ((1948) 50 Bom. L R 233), Chagla, C. J., observed: " Now, it cannot be disputed that if Mrs. Mooseick became a statutory tenant after January 1st 1944, then she could not assign the tenancy which is in the nature of a personal right to the plaintiffs and the plaintiffs must fail in the suit." An allottee under Sind Rent Restriction Act is a statutory tenant and is only entitled to possession of the allotted property. The moment he parts with possession he loses his right. Syed Hamid defendant No. 5 came over to Pakistan in 1948. But only few months later fearing the consequences of his residence in Pakistan went back to India at the latest in the beginning of 1949 and did not come over to Pakistan till 1955 when his presence was considered expedient by the defendant No. 1 in her own interest. Before his departure he admittedly gave possession of the first floor, garage and servant quarters to defendants 2 to 4 who were wholly unconnected with him. The defendant No. 1 is no doubt his daughter. But the allotment being personal she could claim re-allotment but not possession on the basis of the original allotment in favour of Syed Hamid. The bungalow could not be re-allotted to defendant No. 1 as powers of allotment came to an end after 29th March 1948, and the Karachi Rent Restriction Act did not provide for allotment by the Rent Controller. It has been argued that the defendant No. 5 never intended to abandon the bungalow and ever entertained the idea of returning to Pakistan. Considering that the defendant No. 1 claimed tenancy of her own and that out?siders were allowed possession of more than half of the bungalow, it cannot but be held that Syed Hamid left the bungalow with no prospects of returning to Pakistan in the near future. It is the abrogation of evacuee laws in India only recently that may have again prompted the defendant No. 5 to entertain the idea of returning to Pakistan at some future time. But even this is beyond the range of probability as on his own showing the defendant No. 1 had no intention of settling in Pakistan till he had disposed of his property in India. In the circumstances it must be held that Syed Hamid consciously parted with possession of the bungalow in the beginning of 1949. The result is that all the defendants must be held to be trespassers. Issue No.

4. Is the defendant No. 1 in legal and peaceful possession of the same as the co-occupant and joint tenant with her father and his unmarried daughters, etc. ? Nothing was said to show that section 9 was applicable. The suit is not barred by section 9 of Rent Restriction Act 1947, as amended by amending Act 1948. In fact Rent Restriction Act X of 1947, does not exist. It has been replaced by Karachi Rent Restriction Act and the suit is not barred by any of the provisions of this Act. Issue No.

6. Has the defendant No. 1 spent Rs. 5,000 or so towards the comple?tion of sanitary requirements, water connections and other amenities of the bungalow towards the rent and adjustable and refundable to her ? It is wrong to say that defendant No. 1 had spent Rs. 5,

000. The expenditure had been incurred by defendant No.

5. It is a matter of admission that the defendant did not obtain consent of the landlord or the Rent Controller. 1 Consequently the defendants are not entitled to be reimbursed for this expenditure. Issue No.

7. Is the suit for mesne profits for the period before the confirmation of the sale of property in dispute barred by the Evacuee Property Ordinance X V of 1947 ? The right to sue for mesne profits was transferred by the vendor to the plaintiff and consequently the plaintiff will be entitled to sue for the same. There is nothing in the Evacuee Property Ordinance XV of 1949, to disable the plaintiff from doing so. Issue No.

9. Whether the suit is barred for the misjoinder of unnecessary parties ? All the persons concerned are parties. The issue is decided accordingly. Issue No.

10. Whether the suit is frivolous and vexatious and the defendants are entitled for special cost under section 35-A, Civil P. C. ? In view of my findings there is no question of any costs under section 35-A, Civil P. C. Issue Nos. 8 and

11. Issue No.

8. Whether any cause of action arises for ejectment and mesne profits against the defendants. Issue No.

11. What amount is due to the plaintiff if any from the defendants, as damages for use and occupation (mesne profits) ? These two issues may be disposed together. P. W. 1 deposed that proper rent of the bungalow would be Rs. 555 per month. It is admitted that the authorities concerned have placed the rent at about Rs. 400 p. m. The defendants did not adduce any evidence to show as to what would be a reasonable rent of the bungalow. It is clear from the evidence that the defendants invested some amount approach?ing Rs.5,000 for making sanitary and water arrangements cementing the floor and fixing some doors. The Rent Control authorities do not appear to have taken into consideration this investment on the part of defendant No. 5 or defendant No.

1. In assessing mesne profits one has to take into F consideration that the value of the bungalow must have increased on account of improvements and addition made by the defendants. I would assess mesne profits at Rs. 350 p. m. Defendant No. 5 was in possession of the bungalow as allottee upto beginning of 1949. The plaintiff is entitled to rent for the period ending 1948. Suit for arrears of rent is barred in respect of the year 1948. The result is that the plaintiff is not entitled to any mesne profit for the year 1948. He is however, entitled to mesne profits beginning with January 1949, till ejectment of defendants and delivery of possession to the plaintiff. The defendants deserve to be ejected. Not a word was said about deficiency of Court fee. The net result is that the defendants are trespassers and must be ejected. The defendants must pay mesne profits to the plaintiff at the rate of Rs. 350 p. m., beginning with January 1949. The plaintiff's claim in respect of part of 1948 is rejected. The amount paid by the defendants under orders of the Court or otherwise shall be deducted from the amount that emerges in favour of the plaintiff. The plaintiff will have to pay additional Court-fee on the amount that is decreed in favour of the plaintiff in excess of the amount on which Court-fee has already been paid. The defendants shall pay costs of the plaintiff. The suit is decreed in terms mentioned above and a decree be prepared accordingly. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.