P L D 1981 Karachi 225 (PLP)

This first appeal under section 21 of Sind Rented Premises Ordinance,, 1979 (hereinafter to be referred as the new Ordinance) is directed against the order dated t f‑7‑1980 of learned IInd Rent Controller, Karachi, passed under section 14 of the said Ordinance, whereby application of the respondent! landlord has been allowed and the appellant/tenant is directed to hand over vacant possession of the demised premises within 60 days from the date of the order. Briefly stated the relevant facts are that respondent is landlord and owner of House No. D‑37 situate in Block `H' of North Naaimabad, Karachi which appellant is tenant at monthly rent of Rs.

400. The landlord filed an application on 28‑2‑1980 for ejectment of tenant on the ground that he (landlord) has retired from Government service having attained the age of 60 years on 8th September, 1980 and wanted the premises in question for his personal use. The landlord also sent a notice to the tenant as required under section 14 of the said Ordinance. The learned Rent Controller issued notice to the tenant, who filed his written statement and contested the proceedings on the ground inter alia that the landlord is not entitled to the benefit of section 14 of the said Ordinance for the reasons firstly that the landlord has filed application for ejectment against the tenant in respect of the same premises under the old law i.e. the Sind Urban Rent Restriction Ordinance, 1959, on the ground of personal use, which is pending disposal and secondly that tenant is entitled to occupy the demised premises for ten years as per written permission given by the attorney of the landlord. The learned Rent Controller did not record evidence in this case and after hearing the Advocates for both the parties announced the order impugned herein with observations that since application is under section 14 of the Ordinance, no inquiry is necessary as is required under section 15 of the Ordinance and further that for the same reason it is not necessary to record evidence. When this appeal was admitted for regular hearing, it was noticed that section 21 of the Ordinance expressly bars the jurisdiction of the appellate Court to grant stay in appeal filed against order passed by the Rent Controller under section 14 of the Ordinance. This coupled with other contentions of the learned counsel for the appellant with regard to the interpretation of section 14 and some other sections of the Ordinance neces sitated assistance of an amicus curate, which was ably rendered by Mr. Khalid Ishaque, who was requested to do so. I have also heard Mr. Hussain Adil Khatri and Mr. Abdul Hafiz Siddiqui learned Advocates for appellant and respondent respectively. This new Ordinance namely the Sind Rented Premises Ordinance, 1979 has been promulgated on 21st November, 1979 and its section 27 repeals the Sind Urban Rent Restriction Ordinance, 1959. The preamble of the new Ordinance indicates that it has been enforced to make effective provisions for regulation of relations between landlords and tenants and to protect their interests in respect of rented premises within urban areas. A comparative study of provisions of the new Ordinance with those of the repealed Ordi nance‑‑shows that the new Ordinance contemplates still more expeditious disposal of litigation between landlords and tenants, which is intended to be achieved by simplification of procedure to be adopted in the Court of Rent Controller. Additionally only one appeal against the order of Rent Controller has been made competent, which is to be heard by the High Court and that is final. Section 15 of the new Ordinance enumerates the grounds on which eviction can be sought while section 19 thereof lays down the procedure to be adopted by the Rent Controller, which is to the effect that where an application, other than application under section 14, has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed for reasons to be recorded, issue notice to the respondent to file a written reply within fifteen days and on failure to do so without any reasonable excuse, the Controller shall pass an ex parte order, which he is not competent to rescind subsequently. In case in which respondent has filed written reply, the Controller shall proceed to receive evidence first of applicant and his witnesses and then of the respondent and his witnesses by way of affidavits but the other party shall have the right of cross examination. The Controller is allowed to state briefly the issues in the judgment and record findings thereupon instead of formally framing issues. It may be mentioned here that under the repealed Ordinance there was a provision for framing issues as is manifest from section 13(6) which provides that on the first date of hearing or as soon as possible after that and before issues are framed, the Controller shall direct the tenant to deposit all rent due. Similarly section 14 of the repealed Ordinance also provides that the Controller shall reject any application under subsection (2) or (3) of section 13, which raises substantially the same issues as have been finally decided in a former proceeding under the same Ordinance. Now when issues are allowed to be framed, it necessarily follows that evidence is also to be recorded. Furthermore in respect of eviction of tenant, section 13(2) of the repealed Ordinance made it mandatory for the Controller to give the tenant a reasonable opportunity of showing cause against the application and then if the Controller was satisfied could grant eviction on the grounds enumerated therein. The difference between the new Ordinance and the repealed Ordinance is strikingly apparent that the new Ordinance curtails the procedure and further simplifies it for the purpose of expeditious disposal of rent cases. Now the pivotal question that arises for consideration is how section 14 of the new Ordinance is to be construed for which it would be pertinent to first read the section as it is worded. Section 14 is reproduced as under :‑ (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing, inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof : Provided that nothing in this subsection shall apply where more than six months have elapsed since the landlord has retired or attained the age of sixty years, or, as the case may be, has become widow or orphan (2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality. (3) Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary. In order to put literal construction on this section, it is necessary that intention must be collected from plain and unambiguous expressions used therein, which must receive its full effect. The bare reading of this section as stated above makes it prominently clear that requirement of subsection (1) is that the landlord as described therein is under an obligation to give first notice in writing to inform the tenant that he needs the premises in question for personal use and further call upon the tenant to hand over vacant possession within such time as specified in the notice which shall not be earlier than two moths from the receipt thereof. Words to the effect that two months from the receipt thereof makes it abundantly clear that time starts running against the tenant from the date of receipt of the notice and not from the date of despatch of notice by the landlord and further that it is incumbent upon the landlord to ascertain that notice is received by the tenant and after expiry of the time specified in the notice, which shall not be lesser than two months, if the premises are not vacated, application for eviction would be competent before the Controller. In this context it may be pointed out that when subsection (1) is read in conjunction with subsection (3) it becomes clear that the Controller has to make an inquiry although it is not so specifically stated in subsection (3). The language used in subsection (3) is to the effect that where tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner by using such force as may be necessary. Now if the Controller does not hold inquiry and hear the tenant, how can he conclude that the tenant has failed to deliver the possession. The tenant may come and tell the Controller that he has not received the notice or it may be found out that some other person has been served instead of the actual tenant. Such matters can be ascertained only when inquiry is made by the Controller and tenant is heard. Further, proviso to subsection (1), envisages cases in which subsection (1) shall not apply such as where more than six months have elapsed since the landlord has retired or attained the age of sixty years, or, as the case may be, has become widow or orphan. For this also inquiry by the Controller is indispensable and the facts mentioned in the proviso can be ascertained only when such objections are raised by the tenant and he is heard. Lastly subsection (2) provides that the landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality. For this also the Controller is bound to bold inquiry and hear the. tenant, failing which it will not be possible for the Controller to reach any conclusion because tenant is the only interested person, who can inform and convince the Controller that the landlord is in occupation of a building owned by him in any locality. It is, thus, clear from reading section 14 as a whole that inquiry b the Controller and hearing of tenant is impliedly intended if it is not expressly provided therein. Such intention can also be inferred from the fact that the preamble to the Ordinance also states that this law is made to make effective provisions for regulation of relations, between landlord and tenants and to protect their interests in respect of rented premises within urban areas. It is therefore manifest that this Ordinance intends to protect the interest of the tenant also in respect of rented premises and to hold that section 14 does not contemplate inquiry by the Controller and right of hearing of the tenant will not only be harsh to the tenant but will also run counter to the intent contained in the preamble and the provisions of section 14 itself. Although it is clearly stated in section 19 of the new Ordinance, which prescribes the procedure, that the procedure so specified therein is not applicable to an application made under section 14 but section 14 as stated above does not expressly bar inquiry by the Controller and right of hearing of the tenant and from this an inference can be drawn that the Controller on his own has to evolve a mode of inquiry, which includes the right of hearing of the tenant on the basis of natural justice. The rule of natural justice is to be presumed to be grafted into every law unless expressly 6 barred. Section 14 of the said new Ordinance does not expressly barred inquiry by the Controller and right of bearing of the tenant. As stated above proviso to subsection (1) and subsections (2) and (3) of section 14 require the Controller to be satisfied on certain questions of fact such as whether more than six months have elapsed since the landlord has retired or attained the age of 60 years, or, as the case may be, has become a widow or orphan whether landlord is not entitled to avail the benefit of subsection (I) for he is in occupation of a building owned by him in any locality and whether the tenant has failed to deliver the possession under subsection (1). These questions of facts cannot be decided by the Controller without holding inquiry and hearing the tenant. Furthermore under the new Ordinance there is a provision for appeal against the order passed by the Controller under section

14. Section 21 of the Ordinance envisages such appeal but specifically bars grant of injunction in the appeal preferred from the order under section

14. Section 21(3) provides that the appellate authority shall, after perusing the record of the case and giving the parties an opportunity of being hard and if necessary after making such further inquiry either by himself or by the Controller, make an appropriate order which shall be final. It may be mentioned here that under section 21 the intention very clear that appeal against the order passed under section 14 can beard but the High Court cannot grant stay from which natural inference follows that the appeal is to be disposed of promptly without any loss of time. This very fact that order passed under section 14 is appealable indicates that inquiry is to be made by the Controller and tenant is to be, beard when the Controller is seized of an application under section 14 and such right is not expressly taken away by section 14 itself. On the maxim "audi alteram Partem" in connection with the provisions of Registration (Importers and Exporters) Order, 1952 Supreme Court of Pakistan has held in Messrs Faridsons Ltd., Karachi and another v. Government of Pakistan and another P L D 1961 S C 537 that show‑cause notice to the trader is necessary before suspending certificate of registration and such opportunity of a hearing must be given on the principles of natural justice: Relevant portion from the Judgment at page 562 is reproduced hereunder :‑ "As regards the question whether the appellants were entitled to an oppor tunity to show cause, it is true that there is in the relevant sections no express provision as to the right of the person proceeded against to be heard. But there is, at the same time, nothing in the section militating against the grant of an opportunity to show cause and, considering the nature of the proceedings, it is not difficult to presume an intention to give the person concerned a proper opportunity of defending himself, unless we are to hold that the Legislature intented to violate principles of natural justice. The proceedings with which we are concerned are in the nature of penal proceedings. The Controller has to find under clause 4 whether the person concerned has been guilty of the various acts referred to in clause 4(1) of the Registration (.Importers and Exporters) Order, 1952. It is impossible to assume that the Legislature intended the decision of such questions behind the back of the person concerned and without an opportunity to him of meeting the allegations against him. The finding of the Controller may be of grave consequence to a person who depends for his living only on import and export business. A finding once given may debar the person concerned forever from securing an import or export licence. The consequence may be far more serious than in a criminal case where only fine can be imposed. The right of appeal would not by itself provide sufficient opportunity of showing cause, for evidence has to be adduced and explanations submitted before the officer who originally deals with the matter. and there is a good deal of difference between the approach of an Appellate Authority and an Original Authority. If there is no proper opportunity of hearing before the original authority, the right of being heard by the Appellant Authority may be altogether illusory." The same principle as stated above, has been reiterated by the Supreme Court in Muhammad Siddlque v. Mst. Ghafooran Bibi P L D 1971 S C 192 with relevant portion at page 195 which is reproduced hereunder " For the reasons stated above )and in view of the legal position enunciated in the rulings quoted above, it is my considered opinion that since section 1 does not specifically bar inquiry by the controller and right of hearing of the tenant it is incumbent upon the Controller to hold inquiry and hear the tenant in a manner to be evolved by him to make the hearing consistence with the principles of natural justice. What procedure is to be adopted by the Controller while disposing of the application under section 14 Particularly when the Ordinance excludes application of procedure prescribed wider section 19 to the application under section 14 is for him to decide and may perhaps vary from case depending upon the circumstances of the case. 1t may be enough in one case to decide the application on the basis of material produced by the parties without recording evidence and this may not be enough in another case in which the question of fact to be decided by the Controller is deep and controversial which may necessitate recording of evidence. Coming back to the case under consideration it has been pointed out by the counsel for the appellant that although he was heard by the learned Controller, who has also held that the landlord has given in writing the permission to the tenant to construct the rooms on his own expenses, which the tenant will be liable to remove after a period of 10 years but has passed the order of eviction in respect of premises with the exception of additional rooms constructed by the tenant on the basis of permission. According to the learned counsel this splitting of the premises is not physically possible because the plot on which the additional rooms are constructed also belongs to the landlord and the tenancy is one compact unit which cannot be bifurcated. The learned counsel has also brought to my notice definition of land as provided under section 2(e), which is to the effect that "land" means land or open space, not being agricultural land or land or open space attached or appurtenant to any building. Clause (h) of section 2 further defines "premises" means a building or land, let out on rent, but does not, include a hotel. On this premise it is contended by the learned counsel that the demised premises of which the appellant is tenant includes the portion of land on which he was allowed by the landlord to build additional rooms for the purpose of running a school, as such the demised premises as a whole cannot be bifurcated as ordered by the learned Rent Controller. It is further contended that it was a question of fact which . had to be decided by the learned Rent Controller by making proper inquiry which he has omitted to do. In these circumstances the impugned order is set aside and as provided under section 21(3) of the Ordinance the learned Rent Controller is directed to decide this question again by way of further inquiry and he may also inspect the site and hear both parties in order to come to a just conclusion. In the result appeal is allowed and the case is remanded to the learned Rent Controller for the purpose stated above. M. Y. H. Appeal allowed. Case remanded