P L D 1966 (W (PLP)

MUHAMMAD GUL, J.‑This Writ Petition under Article 98 of the Constitution is directed against an order dated 3‑11‑1965, of the learned District Judge, Rawalpindi, made in exercise of powers as the Appellate Court under section 24 of the Cantonments Rent Restriction Act, 1963 (Act IX of 1963), affirming the order dated 19‑6‑1965, of the Rent Controller, for the ejectment of Samiullah, the petitioner, from Shop No. 14, Mamoo Ji Road, Lalkurti Bazar, Rawalpindi Cantonment, on an application made by Haji Muhammad Yousaf, respondent No. 3 under section 17 of the Act.

2. The petitioner is in possession of the shop in dispute as a tenant under respondent No. 3 on a monthly rental of Rs. 25 payable each month. In July 1962, respondent No. 3, gave notice to the petitioner under section 106 of the Transfer of Property Act 1882 (Act IV of 1882), terminating the tenancy with effect from 31‑7‑1962. The notice was followed by a suit for the ejectment of the petitioner from the shop. During the pendency of the suit, the Cantonments Rent Restriction Act, 1963, came into force and as a result the suit brought by respondent No. 3, became infructuous and was, therefore, struck off the file of the Civil Court concerned. Respondent No. 3, then filed an application under section 17 of the 1963 Act, for the eviction of the petitioner from the said shop on the allegations that the petitioner had defaulted in the payment of rent, had also sub‑let the shop in violation of the terms of the tenancy, and finally that respondent No. 3 required the shop for his bona fide use. These allegations being traversed by the petitioner, the learned Rent Controller framed the following issues :‑ (1) Whether the respondent (petitioner herein) has committed default in the payment of rent? (2) Whether the respondent (petitioner herein) has sub‑let the shop in dispute? (3) Whether the petitioner (respondent No. 3 herein) required the suit property for his personal bona fide use?

3. The learned Rent Controller found Issue No. (1) in favour of the petitioner but found the remaining two issues against him and ordered his ejectment from the shop. On appeal by the petitioner, the learned Appellate Court reversed the findings of the learned Rent Controller, on Issues Nos. (2) and (3) but ordered ejectment of the petitioner from the shop on the basis of a finding on Issues No. (1), that the petitioner had defaulted in the payment of rent for the months of June, July and August, 1962, reversing that of the Rent Controller to the contrary. Hence this writ petition by the petitioner to avoid his ejectment from shop under order dated 3‑11‑1965, of the Appellate Court which is characterized as "wholly ultra vires and without jurisdiction".

4. The main ground taken in the writ petition is that the District Judge, Rawalpindi, was not appointed as the Appellate Court under section 24 of the 1963 Act. Learned counsel for the petitioner, however, conceded that the Central Government's Notification No. 1900/63, dated the 19th October 1963, issued under section 24 (1) of the 1963 Act, appointed, inter alia the District Judge, Rawalpindi, to be the Appellate Court under the Act for the Cantonments situated at Rawalpindi, Murree Hills and Wah. Therefore, he did not press the first ground of attack directed against the impugned order.

5. Petitioner's learned counsel, however, urged that in the appeal before the learned Appellate Court, respondent No. 3, did not file any cross‑objection against the finding of the Rent Controller on Issue No. (1), and, therefore, the former could not validly consider suo motu and record a fresh finding on issue No. (1) that the petitioner defaulted in payment of rent and reversed the finding of the Rent Controller to the contrary. It was also urged that even assuming for the sake of argument, that the petitioner was in default in respect of rent for the months of June, July and August 1962, that could not have been made a basis for his ejectment under the Act, which came into operation in 1963, for that amount to giving a retrospective operation to the Act.

6. As to the first contention, according to section 24 (3) of the 1963 Act, an appeal under this section is to be "tried and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908 (Act V of 1908), and the provisions of Part VII and Order XLI of the First Schedule to the said Code. "Section 107 (2) of the Civil Procedure Code, 1903, gives the Appellate Courts "the same powers . . . , , as are conferred . . . . . . on the courts of original jurisdiction . . . ." and this read with Order XLI, rules 24 and 33 in our opinion furnish a complete answer to the petitioner's counsel's first objection. Order XLI, rules 24 and 33 ibid, empower an Appellate Court to finally determine the dispute, after resettling the issues if necessary and to pass any decree or order as the case may require, notwithstanding that the appeal is as to part only of the decree. In this case, it is not disputed that there was sufficient evidence on the record to enable the Appellate Court to record a finding that the petitioner defaulted in the payment of rent for the months of June, July and August, 1962. The mere fact that respondent No. 3 did not file cross‑objection did not prevent the Appellate Court to reverse the finding on Issue No. (1). The above provisions gave ample power to the Appellate Court to record a fresh finding on Issue No. (1) on the basis of evidence led before the Rent Controller. We, therefore, find the first contention to be devoid of force.

7. Similarly, we do not find any force in the second con tention that a default committed by the petitioner in the payment of rent due prior to coming into force of the Act, cannot be model a basis for his ejectment under the provisions of the Act for that would be tantamount to giving a retrospective effect to the Act. It is true that the court will not ordinarily give retrospective effect to a Statute but that is only a canon of interpretation and not a Constitutional principle. There is no constitutional reason why a Legislature cannot legislate to give a measure within its competence, a retrospective effect. Section 17 (2) of the Act is in categorical terms and empowers the Rent Controller to make an order, inter alia, for the ejectment of the tenant after complying with certain procedure as to giving a reasonable opportunity to the tenant and if he is satisfied that‑ "the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due ; or . . . . . " On its plain reading, any past default in the payment of rent without any reference to the point of time when the default occurred would be covered by the above provisions. It is no possible to limit the operation of the above provision to a default occurring subsequent to the commencement of the Act. In this sense, the Act operates retrospectively and the words "has not paid or tendered" without any further qualification do certainly sustain a retrospective operation of the Act, so as to make any failure to pay rent falling due prior to the commence ment of the Act to be a valid ground for ejectment of the defaulting tenant under section 17 of the Act.

8. In Lane v. Lane ((1896) p. 133) referred to in Maxwell on the Interpre tation of Statutes (Eleventh Edition) at page 214, The Summary Jurisdiction (Married Women) Act, 1895 (c. 39), section 4, which provided (inter alia) that any married woman "whose husband shall have been guilty of persistent cruelty to her . . . . and shall by such cruelty or neglect have caused her to leave end live separately and apart from him, may apply to any court of summary jurisdiction . . . . for an order or orders under the Act", was held to be retrospective in its operation, and to apply to acts of cruelty committed before the Act came into operation. Similarly, section 14 of the Wine and Beerhouse Amendment Act 1870 (c. 29) which enacted that every person "convicted of felony" should for ever be disqualified from selling spirits by retail, and that if any such person should take out or has taken out a licence for that purpose, it should be void, was held to disqualify a person for the grant of licence for selling spirits by retail, even if he had been convicted prior to the coming into force of the Act. Cf. Rex v. Vine ((1875) 10 Q B 195) These authorities in our view fully cover the instant case. In essence, the 1963 Act merely creates a new forum instead of the ordinary civil courts to decide matters between landlords and tenants relating to rented premises in Cantonments. It is impossible to read the Act as destructive of any right inhering in the landlord or accruing to him under the contract of lease prior to the commencement of the Act. For the aforesaid reasons, the writ petition fails and the same is dismissed with costs. K. B. A. Petition dismissed.