' This second appeal has been filed by a tenant, namely, Abdul Rashid. His ejectment from a house was sought by the respondents, Muhammad Akhtar Siddiqi and another, on the ground that the house was needed by the first respondent, Muhammad Akhtar Siddiqui for his own occupation.
According to the respondents, the first respondent is the owner of the house. The second respondent, namely, Abdul Ghafoor Siddiqui joined the first respondent in making the ejectment application because, according to the respondents, the former had been realizing rent from the appellant on behalf of the latter. The appellant resisted the ejectment application inter alia on the ground that the relationship of landlord and tenant did not exist between him and the first respondent. It was also maintained by the appellant that the said respondent, did not need the house for himself. On this, the Rent Controller framed a preliminary issue to find out if the appellant was in possession of the house as a tenant under the first respondent and, after recording the parties' evidence thereon, held that the relationship of landlord and tenant did exist between them.
He, then, without going into the question of personal need, ordered the appellant to vacate the house. On this, the appellant went in appeal before the District Judge but without success. Hence this second appeal.
2. Learned counsel for the appellant contended that after .His objection that the relationship of landlord and tenant did not exist between the appellant and the first respondent had been repelled, the Rent Controller should have enquired into the plea of personal requirement raised by the landlord and as that was not done, the order of ejectment passed against the appellant was not sustainable.
3. On the other hand, learned counsel for the respondents maintained that after the appellant was found to be in possession of the disputed premises as a tenant, which fact had been denied by him, the Rent Controller could straightaway order the ejectment of the appellant without holding a probe into the question of the personal need of the first respondent. According to the learned counsel for the respondents, the denial of tenancy by the appellant had entailed forfeiture of the tenancy in his favour and, therefore, he could not claim inquiry into the question of personal need.
In this connection, he placed reliance on section 114 of the Transfer of Property Act, 1882, and a number of cases reported as Nisar Ahmed v. Nazar Muhammad (1), Hafiz Muzaffar Ahmed Khan v.
Dr. Habibul Haq and another (2) and Amanultah Khan v. Chotey Khan (3).
4. While commenting on the arguments advanced by the learned counsel for the respondents, learned counsel for the appellant submitted that the precedent cases cited by the former involved the plea of default and therefore, they had no bearing on the present case in which ejectment has been ordered on the ground of personal requirement As regards the provisions of section 114 of the Transfer of Property Act, it was argued by the learned counsel for the appellant that the said provisions were not applicable to rent cases because according to subsection (1) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter (1) PLD 1974 Lah. 489 (2) 1968 SCMR 793 (3) 1978 SCM R14 referred to as the Ordinance, such cases are to be decided in the light of the provisions of the Ordinance only without reference to any other law. He relied on Ghulam Muhammad Khan Lundkhor v. Safdar Ali (1), Abdul Khaliq Qureshi v. Saeed Hassan Shah and S others (2), Major Feroze Din Khan and others v. Sheikh Muhammad Amin (3), Malik Muhammad Salim and another v. Mst. Ruqaya Begum and 3 others (4) to support his contention.
5. As for the authorities relied upon by the learned counsel for the parties, in the case of Haji Muzaffar Ahmed Khan it was observed by their Lordships of the Supreme Court, while dealing with an appeal against an order passed by the erstwhile High Court of West Pakistan, Karachi Bench, Karachi, that the High Court was justified in upholding the finding of the Courts below that the denial of relationship of landlord and tenant by the tenant resulted in the forfeiture of the tenancy.
It is not known whether in the case under report the ejectment of the 'tenant was sought on the ground of default or on any other ground. Also, the said authority relates to a civil suit decided by a Subordinate Judge and not an application under the Ordinance. It is, therefore, not possible to follow the view expressed in the case of Haji Muzaffar Ahmed Khan while deciding the case in hand.
6. In a subsequent case of Ghulam Muhammad Khan Lundkhor, which was a second appeal against an order of ejectment on the ground of default, it was clearly observed by their Lordships of the Supreme Court that the provisions or the principle of section 114 of the Transfer of Property Act could not be invoked in an ejectment case under the Ordinance. The relevant observations of their Lordships are as follows :- ' The appellant has in the facts of the present case been shown to be in default. There is no further scope, therefore, of granting him any relief. The provisions of the Transfer of Property Act do not in terms apply nor can the principle of section 114 thereof be invoked on equitable, principles, for, equity cannot override the law. This is not a case of forfeiture at all but of granting to a tenant a relief which goes beyond what the meaning of the words in the statute strictly import. This obviously cannot be done."
7. It was also observed in the case of Major Feroze Din Khan and others that a case falling under section 13 (2) (i) of the Ordinance is to be decided on the basis of the provisions of section 13 (2) of the Ordinance and the tenant cannot rely on the provisions of section 114 of the Transfer of Property Act.
8. As for the cases of Nisar Ahmed and Aman Ullah Khan, they are distinguishable on facts inasmuch as they relate to ejectment orders made on the ground of default. The respondents before me had, however, sought ejectment of the appellant not on that ground but on the plea of personal need. Moreover, even in the said two cited cases the orders of ejectment were not made on the basis of section 114 of the Transfer of Property Act. This view of mine is supported by the following observations:-
(1) PLD 1967 SC 530
(2) 19'9 CLC 118
(3) PLD 1967 Lah. 966
(4) 1978 SCMR 348 ' appearing in the case of Abdul Khaliq Qureshi in which the said two cases were also discussed :- "The rule enunciated in the cases referred in this judgment is not based upon forfeiture but on the principle of estoppel against proof of payment of rent or principle of simultaneous approbate and reprobate."
9. There is a good reason behind the rule laid down in the cases of Nisar Ahmed, Aman Ullah Khan and Abdul Khaliq Qureshi that where the ejectment of a tenant is sought on the ground of default but he denies the relationship of landlord and tenant between the parties, the moment the said relationship is established his ejectment can be ordered without holding any other inquiry. A perusal of the definition of the word "tenant" as given in clause (1) of subsection (2) of section 13 of the Ordinance would show that any person paying rent to another for the premises occupied by the former would be treated as a tenant under the latter. In view of these provisions, the plea of the denial of tenancy and that of the payment of rent are mutually destructive inasmuch as if a person is not a tenant he need not pay any rent, and if he pays the rent he cannot be heard to say that he is not a tenant under the person to whom the rent is paid. Therefore, ejectment proceedings based on the plea of default if the respondent denied the tenancy, the Rent Controller would be perfectly justified in passing order of ejectment on the ground of default as soon as the tenancy in established. Such an order cannot, however, be made by him in a case in which ejectment is sought on the ground of personal need.
10. It has been laid down in subsection (3) of section 13 of the Ordinance that where ejectment of a tenant is prayed for on the ground of personal need, his ejectment can be ordered by the Rent Controller if he is satisfied that the landlord, in good faith, needs the premises in dispute According to subsection (2) of section 13 of the Ordinance, even when the ejectment is sought on the ground of default, before the tenant can be directed to vacate the premises let out to him, the Rent Controller has to satisfy himself that the tenant had not paid or tendered rent which is alleged to have become due. In the latter case, the Rent Controller would be satisfied about the default as soon as the tenant denying the tenancy, without alleging the payment or tender of rent in respect of which he is alleged to have committed default, would be found to be a tenant because by not pleading payment or tender of rent the tenant had, by implication,, admitted his default. In the former case, however, the mere fact that the tenant had made an unsuccessful attempt to deny the tenancy would not warrant a conclusion that the premises in dispute were needed by the landlord, in good faith, for his own occupation. In such a case therefore, after holding that the relationship of landlord and tenant existed between the parties, the Rent Controlled will have to record the evidence of the landlord to satisfy himself about the genuineness of his need. This is a requirement of law, namely subsection (3) of section 13 of the Ordinance, and unless that is fulfilled the ejectment of the tenant cannot be ordered with reference to the provision of any other law, including the Transfer of Property Act, because according to subsection (1) of section 13 of the Ordinance, the ejectment of a tenant cannot be ordered except in accordance with the provisions of the Ordinance.
11. One more reason for which the provisions of section 114 of the Transfer of Property Act are of no avail to the appellant is that they have Ordinance (X11 of 1972) whereby section 48 of the Code of Civil Procedure was amended so as to reduce the outer limit of time for execution of a decree upon any fresh application from 12 years to 6 years. The learned counsel for the appellant has pointed out that the first application for execution was filed by the appellant on 23rd May 1966 and was disposed of by order dated 15th February 1967 for non-prosecution. The second execution application was filed on 23rd May 1968 which was also dismissed for non-prosecution on 21st November, 1968. The third execution application was submitted on 27th August 1969 and was disposed of by order dated 10th January 1970. The fourth execution application was filed on 29th May 1970 and was disposed of by order dated 27th July 1970. The fifth and the last execution application as already stated, was filed on 23rd December 1972 and was dismissed by the impugned order.
12. It is conceded at the bar that the six years period from the date of decree expired on 2nd October 1971 and if the amended law is applied the execution application was clearly time barred.
However, Mr. Mansoorul Arfin, learned counsel for the appellant contended that the execution application in question will be governed by the unamended provisions of section 48, C. P. C. So far as the question of limitation is concerned. In other words, the submission was that the Law Reforms Ordinance, 1972 will have no retrospective operation so as to affect, impair or in any way take away the vested right to remedy as to the execution of the decree in question passed prior to the promulgation of the said Ordinance. Thus the short question for determination in this appeal is whether the outer limit of time prescribed by the amended provisions of section 48 would govern the execution application in question or the said application will continue to be governed by the limitation prescribed prior to the amendment introduced by the Law Reforms Ordinance. As held in Bank of India v. Mohomed Ashraf (1) it is well established that the period of limitation is ordinarily a matter of procedure only and that when a question of limitation is raised it ought to be decided in accordance with the law of limitation in force at the time of institution of proceedings and not the one in force at the time of cause of action, unless there be any express provision to the contrary in the Act itself. It was also held in the cited case that an enactment dealing with procedure as a general rule is retrospective in, its operation and governs all proceedings from the moment of its enactment even though the cause of action might have accrued before the Act came in existence.
However, there is an exception to this rule which is that retrospective operation will not be given to such an enactment if its provisions touch or take away any existing or vested right. There is a long line of authorities holding the vie that a statute cannot be given retrospective effect, if it interferes with, o impairs or imperils a vested right unless such intention be clearly manifested by express words or necessary implication. It was urged by Mr. Arfin that there is nothing in the Law Reforms Ordinance which has the effect to its enforcement and, therefore, consistent with the principles enunciated above the right to remedy by execution of the decree existing on the date of promulgation of the Ordinance cannot be taken away by the amendment. Reliance was placed on Pakistan v. Devachand Muljimal (2) where it was held that an amendment in a procedural law is retrospective, but if it deals with or affects not only procedure but also vested rights, then it will be construed as prospective. It was further held that if the law of (1) PLD 1965 Kar. 69 (2) PLD 1968 Kar.
10.7 limitation is amended so as to interfere with or impair vested rights it would be prospective and the right to sue is not a procedural matter. The argument of Mr. Arfin is that the right to execute a decree is similarly not a mere matter of procedure.
13. I find considerable force in the submission of the learned counsel, the question in this case is not of a change in a procedural law affecting the adjudication of a cause of action. The appellant had already invoked the jurisdiction of the Court and obtained adjudication upon the cause o action that accrued to him culminating in a decree in his favour. The abridgement of the outer limit of time abruptly by the aforesaid amendment, therefore, affected a vested right to execute the decree passed in favour of the appellant. Consequently, in absence of contrary intendment, the amending law cannot be given retrospective effect.
14. Counsel also referred to another principle of interpretation as to the retrospectivity of a statute of limitation having the effect of curtailing the existing period of limitation. It was urged that the general principle that all enactments affecting procedural law are retrospective in operation is subject to an exception, that where the amending Act shortens the period of limitation provided by the existing law the Act is to be construed as prospective except where Act is suspended in its operation for sometime from its being passed as a law. This principle may be summarized as laying down that where an amending enactment has the effect of curtailing the existing period of limitation for institution of legal proceedings, the fact that such amending law takes effect immediately on its promulgation will be a ground not to give retrospective effect to it so as to wipe out the cause of action accruing prior to its enforcement so that the affected party is left with no remedy at law. But if there is an interval of time between the passing of the Act and the date upon which it comes into force, then the general rule will continue to apply and the statute will be construed as retrospective in operation. This principle of interpretation of statutes has been considered at great length in Shaikh Reyasat v.Gop Nath Missir (1) where the learned Judges observed "that this distinction has long been recognized in England and there appears to be no difference between the English Law and the Indian Law upon this point". The reason behind the rule may best be stated in the words of Lord Campbell, C. J. In Queen v. Leeds & Bradeford Ry. Co. (2) : "If the (amending) Act had come into operation immediately after the time of its being passed, the hardship would have been so great that we might have inferred an intention on the part of the Legislature not to give it 'retrospective operation but when we see that it contains a provision suspending for six weeks, that must be taken as an intimation that the Legislature has provided that as the period of time within which proceedings respecting antecedent damages or injuries might be taken before the proper tribunal."
' This view was considered in District School Board v. Muhammad Mulla (3) in which the case law was extensively reviewed and Chagla, J. Observed "Considering these authorities, it', is clear that as a rule statutes of limitation being procedural laws must be given a retrospective effect:
(1) AIR 1939 Pat. 122
(2) (1852) 21 L J M C 193
(3) AIR 1947 Born. 377 ' In the sense that they must be applied to all suits filed after they came into force. This general rule has got to be read with one important qualification, and that is that if the statute of limitation, if given a retrospective effect, destroys a cause of action which was vested in a party or makes it impossible for that party for the exercise of his vested right of action then the Courts would not give retrospective effect to the statute of limitation. The reason for this qualification is that it would inflict such hardship and such injustice on parties that the Courts would hesitate to attribute to the Legislature an intention to do something which was obviously wrong."
15. The statute under examination in the present case, namely, the Law Reforms Ordinance, 1972 was given immediate effect with the result that decrees which were older than six years, but under the existing law could still be executed until the expiry of 12 'ears from the date of decree, would be suddenly barred by limitation by virtue of amendment effected in section 48 of the Code of Civil Procedure. Consequently, if effect is given to the amendment the right to remedy in respect of such decrees which were passed before the date of the Ordinance will be totally destroyed. Like the right of action by suit the right to execute a decree is a vested right accrued in favour of the decree- holder and, therefore, an alteration in the period of limitation for execution of such decrees cannot be held to be a mere matter of procedure. As already pointed out the decree in the present case was passed on 2nd October, 1965 and could, therefore, be executed until 2nd. October 1977 under the existing law. The amending statute cannot, therefore, be given retrospective effect and as such this case will be governed by the provisions of section 48, C. P. C. As they stood prior to the amendment. The application for execution was, therefore well within time and ought not to have been dismissed as barred by limitation.
' In the result, this appeal is allowed and the order dismissing the execution application is hereby set aside. The case shall be remanded to the executing Court for disposal according to law. Since the respondents have not come up to contest this appeal, there will be no order as to costs.