' SAEEDUZZAMAN SIDDIQUI, J.-This certificated appeal under clause 10 of the then Letters Patent was filed by the appellant against the order of a learned Single Judge of the erstwhile High Court of Sind & Baluchistan, Karachi Bench, dated 17-5-1971, whereby he accepted the appeal of the respondent against the order of IInd Additional District Judge, Karachi, dated 7-2-1967 and restored the order of the Rent Controller dated 26-5-1966, striking of the defence of the appellant and directing him to put the respondent in possession of the premises.
' The facts relevant to the decision of this appeal may be stated as follows :-
1. The respondent/landlord instituted an application for ejectment of the appellant/tenant before the Rent Controller, Karachi, in October, 1963, on the grounds of non-payment of rent, making the unauthorised additions and alterations in the premises which resulted in materially impairing the value and utility of the premises and conversion of the premises from a show-room to a workshop.
In the written statement filed by the appellant before the Rent Controller the allegations made in the application were denied and with reference to default alleged against the appellant it was stated that the appellant was entitled to the adjustment of Rs, 2,640 as. Electric consumption charges from 1-5-1959 to 31-1-1961 and after adjustment of this amount towards the rent due, the appellant claimed to have paid rent to respondent until December,
190. In the rent account submitted before the Rent Controller on 30-6-1964, the appellant claimed further adjustment of Rs, 682.79 towards repairing the show-room No, 9 in his possession, in addition to the sum of Rs, 2,640 claimed as electric consumption charges and after giving details of payments made by appellant no rent was claimed to be due for the period ending 30-6-1964. The Rent Controller after considering the contentions of both the parties passed an interim order for deposit of arrears of rent as well as the future monthly rent of the premises under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as "the Ordinance") on 26-10-1964.
According to the Rent Controller the appellant was directed to deposit of a sum of Rs, 4,32239 as arrears of rent upto October, 1964, before 5-11-1964, and future monthly rents from November, 1964, at the rate of Rs, 250 per month in Court before 5th of each month. It appears that the appellant felt aggrieved by this order filed Miscellaneous Civil Appeal No, 453 of 1964 before the District Judge, Karachi and obtained stay against the order on 3-11-1964. The appeal was, however, later dismissed by the II Additional District Judge, Karachi (the 1st Appellate Authority under the Ordinance) on 15-10-1965, and the order of Rent Controller directing the appellant to deposit the arrears of rent and the future monthly rent was maintained.
2. After dismissal of the above appeal the respondent filed application on 1 f-.3-1966 under subsection (6) of section 13 of the Ordinance before the Rent Controller praying for striking off the defence of the appellant had failed to deposit the rent in Court as directed by Rent Controller on 26-10-1964. On the application of the respondent a report was called for in the first instance by the Rent Controller from Nazir who reported on 31-3-1966 that according to ledger maintained as no deposit was made by the appellant. It appears that the Rent Controller after considering the above report of Nazir directed notice of the application of respondent to appellant on 11-4-1966. The appellant after service of notice filed a reply on the above application on 14-5-1966 and took the plea that the order of Rent Controller dated 26-10-1964 directing him to deposit arrears of rent was stayed by the 1st Appellate Authority in Rent Appeal No, 453 of 1964. However, later on, when the appeal was dismissed on 15-10-1965 with the direction by the Appellate Court that the arrears of rent amounting to Rs, 4,322.79 as worked out by the gent Controller be deposited, the same were deposited by him in Court on 23-11-1965. With regard to future monthly rent of premises, it was stated that as the direction of the Rent Controller for deposit of rent was stayed by the 1st Appellate Authority, the appellant had tendered monthly rent due through cheque directly to the respondent for the period until October, 1965 which was accepted by the respondent, and future monthly rent after dismissal of the Appeal No, 453 of 1964 from November, 1965 to April, 1966 was regularly deposited in Court and as such the appellant had not committed any default in payment of rent was alleged by the respondent. It was also stated that as no fresh direction for deposit of rent was given by the Rent Controller after decision of the appeal the earlier direction of the Court was complied with. The Rent Controller after considering the contentions of the parties reached the conclusion that the default was committed by the appellant not only in respect of arrears of rent, which were deposited in Court on 23-11-1969 instead of 5th November, 1965 but default was also committed in respect of future monthly rent for November, 1965 and January, March and April, 1969 which was deposited in Court on 20-12-1965, 14-2-1966, 5-4-1966 and 9-5-1966 respectively. The Rent Controller accordingly struck off the defence of appellant and ordered him to put the respondent in possession of the premises on 26-5-1966.
3. Against the order dated 26-5-1966, of the Rent Controller the appellant filed Ist Rent Appeal No, 649 of 1966 before the District Judge, Karachi, which was finally heard by the same IInd Additional District Judge, Karachi, who heard the earlier Appeal No, 453 of 1964 of appellant against the tentative rent order. The 1st Appellate Authority, this time, accepted the appeal of appellant and reversed the findings of the Rent Controller. The reasons given by the 1st Appellate Court for disagreeing with the conclusions of the Rent Controller on the question of default in respect of arrears of rent was that while dismissing the earlier appeal of the appellant against the tentative rent ,order on 15-10-1965, he had not specified any time by which the rent could be deposited by appellant in Court and as the appellant had a right of second appeal before this Court against his order dated 15-10-1965, the deposit of rent on 23-11-1965 by the appellant could not be treated as default. In respect of the defaults for the months of November, 1965, the Ist Appellate Authority took the view that although the appellant deposited in Court the rent for November, 1965 on 23-12-1965, the respondent did not move the application under section 13(6) of the Ordinance promptly and filed the same only on 18-3-1966 and as such in his view the default if any, stood waived by respondent and appellant could not be penalized for the same. In so far as the defaults for other month were concerned, the Ist Appellate Court took the view that by virtue of an amendment in subsection (6) of section 13 of the Ordinance made on 8-6-1965 by Ordinance XXI of 1965 (hereinafter called "the Amending Ordinance) the word "5th" was substitued by the word "15th" and as such this amendment which came into effect while the 1St Appeal No, 453 of 1964 of the appellant was pending, before him, there was a bona fide impression on the part of the appellant that he could deposit the current monthly rent before the 15th of each month. The Ist Appellate Court was further of the view that after amendment in subsection (6) of section 13 of the Ordinance the Rent Controller ought to have passed a fresh order in the case. The 1st Appellate Court accordingly accepted the appeal of the appellant and reversed the order of the Rent Controller. In Appeal No, 284 of 1967, which was preferred by the respondent against the aforesaid order of the 1st Appellate Authority dated 7-2-1937, a learned Single Judge of the erstwhile High Court of Sind Baluchistan, Karachi Bench, took the that no fresh order was required to be passed after the amendment of subsection (6) of section 13 of the Ordinance and that default was committed by the appellant both in respect of deposit of arrears of rent as well as the future monthly rents which remained unexplained and accordingly the learned Single Judge accepted the appeal filed by respondent, set aside the order of lInd Additional District Judge, Karachi, dated 7-2-1967 and restored the order of Rent Controller dated 26-5-1960. After dismissal of the above appeal; the appellant moved the learned Single Judge for grant of a certificate under clause (10) of the then Letters Patent, which was granted by the learned Single Judge, on 1-7-1971 and the present appeal was filed.
4. We have heard Mr. Yousuf Rafi, the learned counsel for the appellant and Mr. J. H. Rahimtullah, the learned counsel for the respondent in this appeal. Mr. Yousuf Rafi repeated before us all those contentions, which were urged before the learned Single Judge and which were not accepted by him. We have examined the contentions of the learned counsel for the appellant and have reached the same conclusion which was arrived at by the learned Single Judge. Mr. Yousuf Rafi, learned counsel for the appellant in support of his contention that a fresh order was required to be passed by the Rent Controller after the amendment in subsection (6) of section 13 of the Ordinance, urged before us that subsection (6) of section 13 of the Ordinance being purely procedural in nature the amendment brought about in the said subsection by virtue of Ordinance XXI of 1965 should be deemed to be operative retrospectively which will effect the existing order of Rent Controller. The learned counsel argued that the effect of the above amendment of the order of the Rent Controller dated 16-10-1964 was that the direction for deposit of monthly rent before 5th of each month lost its legal force as the word "5th" in subsection (6) of section 13 of the Ordinance was substituted with "15th" by virtue of the amending Ordinance XXI of 1965 and as such unless a fresh order was passed by the Rent Controller, there was no question of any default or non- compliance having been committed by the appellant of the order of Controller. The learned counsel in support of his contention relied upon a decision in the case of Pir Baksh and another (1).
We have considered the above case and are of the view that the case cited by the learned counsel for the appellant is of no assistance in the present case. There is no dispute to the proposition canvassed by the appellant's counsel before us that an amendment in the procedural law generally takes effect retrospectively as no one can claim a vested right in matter of procedure and such amendments also apply to the pending cases before the Court or the Tribunal; but in or view this proposition cannot be extended with its full vigor to such provisions of law also deal with the vested rights of the parties while may be procedural in nature in certain other aspects. We have carefully considered the provisions contained in subsection (6) of section 13 of the Ordinance and are of the view that while in some respect the provision of subsection (6)1 of section 13 may be procedural in nature it cannot be legitimately described as wholly procedure as in certain circumstances it does give rise to vested rights the parties to the litigation in the event of its non- compliance by the other during pendency of the proceedings. To this extent, in or view, even if we agree with the learned counsel for the appellant that the amendments brought about by Ordinance XXI of 1965 in section 13(6) of the Ordinance were to be considered as amendment in procedural law, it could not affect the rights already acquired by a party as a consequence of non- compliance of this provision by one {{FOOT NOTE}}
(1) PLD 1965 Lah. 308 {{FOOT NOTE}} ' the parties to the proceedings, in or view if an amendment touches the right of a party in existence on the passing of an Act/Ordinance, it will then be not a mere matter of procedure and shall operate only prospectively unless a different intention is expressly borne out from the amending Act/Ordinance. It is a well-settled rule of interpretation that in general when the law is altered during the pendency of an action the right of parties are determined and decided according to the law as it existed when the action began unless the new statute shows a clear intention to vary such right or it lays down a mere rule of procedure. We are further of the view that the pending cases instituted under the old law but still pending may also be governed by the new procedure under the amended law but it does not mean that the part of the procedure already applied or concluded before coming into force of the new procedure become bad or can be re- opened on the basis of the amendment. The doctrine of retrospectively does not mean that where procedure was correctly adopted and concluded under the old law it will be re-opened again for the purpose of applying the new law of procedure. That will in or opinion, be not only making it retrospective but going a step further to make ex post facto, the procedure, legal when applied and concluded, illegal by subsequent law. Such course cannot be permitted unless of course the statute expressly or by a compelling implication say so. We have looked into the amending Ordinance XXI of 1966 by which subsection (6) of section 13 of the Ordinance was amended.
Subsection (2) of section 1 of the amending Ordinance reads as under :- "It shall come into force at once."
' Again subsection (iv) of section 5 of the amending Ordinance which amended subsection (6) of section 13 of Ordinance is in the following words :-
(iv) in subsection (6) for the word "5th" the word "15th" shall be substituted."
Considering the language used in the Amending Ordinance, we are of the view that it did not have the effect of making the amendment apply retrospectively so as to render ineffective the order validly passed under subsection (6) of section 13 of the Ordinance before the introduction of the above amendments. Some of the amendments in section 13 of the Ordinance brought about by the Amending Ordinance came up for consideration before the Supreme Court in the case of Hassan and others v. Fancy Foundation (1) and while considering the effect of substitution of clause (vi of section 13(2) of the Ordinance in the light of the language used in clause (b) of section 5 of the Amending Ordinance their Lordships of the Supreme Court reached the following conclusion at page 7 of the report : "It is plain that clause (h) of section 5 of the amending Ordinance merely substituted new clause and did not go on to say that the new clause `shall be deemed always to have been so substituted.'
In the absence of these or similar words, it will be wholly wrong to give retrospective effect to the new clause, so as to apply to the pending cases."
' We have accordingly no hesitation in holding that the order of Rent Controller dated 26-10-1964 remained valid in spite of the above amendment in section 13(6) of the Ordinance and consequence of non-compliance thereof could not be avoided on the ground that the words "15th" was substituted in the subsection (6) of section 13 of the Ordinance in place of "5th". We are unable to agree with the contention of the learned counsel {{FOOT NOTE}}
(1) PLD 1975 SC 1 {{FOOT NOTE}} ' for the appellant that as a result of the amendment it was obligatory en the part of the Rent Controller to have passed a fresh tentative rent order for deposit of rent. In or view, if the appellant felt that after the coming into force of the Amending Ordinance he was entitled to deposit the rent before 15th of each month, he should have moved the Rent Controller for amendment of the order in those terms. The appellant having failed to follow the above course cannot make a grievance against the order of his summary ejectment under section 13(6) of the Ordinance for non: compliance of the direction of the Rent Controller. This, however, is not the end of the matter, as the default was committed by the appellant not only in respect of the monthly rent but also in respect of arrears of rent. In or view both under the unamended subsection (6) of section 13 as well as under the amended subsection (6) of section 13 of the Ordinance the Controller was free to fix any date for deposit of arrears of rent in Court. It is an admitted position that the arrears of rent were deposited by the appellant in Court on 23-11-1965 while under the order of the Rent Controller the same were to be deposited before 5th November, 1964. The direction of the Rent Controller for deposit of rent was made in this case under section 13(6) of the Ordinance on 26-10-1964, which was stayed on 3-11-1964 by the 1st Appellate Authority on the appeal of the appellant. The appeal was dismissed on 15-10-1965, and as such applying the rule of reasonable time within which the appellant would have deposited this amount in Court after dismissal of his appeal, as laid down in the case of Messrs Ansari Brother v. Holy Trinity Church (1), the appellant ought to have deposited these arrears on or before 17-10-1965. The appellant having failed to deposit the arrears as aforesaid was in clear default of the order dated 26-10-1964 and was liable to be ejected summarily under section 13(6) of the Ordinance. The ground on which the 1st Appellate Court condoned the delay in depositing the arrears of rent in Court that a right of second appeal was available to the appellant to this Court and as such the deposit made on 23-11-1965 shall not be deemed to be a default, was to say the least a perverse view. We are unable to see how a right of Ilnd appeal, if at all it was available, could be a ground for condoning the default in non- compliance of the order of the Rent Controller, when such right was never exercised by the appellant himself. Mere existence of such an alleged right of appeal could hardly have the effect of suspending the operation of a legal order passed by the Controller directing the appellant to deposit the rent in Court. In or view, the default, committed by the appellant in depositing the arrears of rent in Court was deliberate and no case at all was made out to relieve him of the consequences of the default prescribed in subsection (6) of section 13 of the Ordinance. Turning to the default for the month of November, 1965, we are unable to agree with the reasoning of the Ist Appellate Authority that the landlord/respondent had waived the default by not making an application under subsection (6) of section 13 of the Ordinance promptly, after the default was committed by the appellant: We failed to see how mere delay of three months on the part of respondent to file the application for striking off defence of appellant could produce such a result when under the !Ordinance no time limit oils fixed for filing of such an application by the landlord against the' defaulting tenant. In or opinion, in the absence, of other circumstances to show that respondent had acquiesced in the default, mere delay of three months was sufficient to give rise to the plea of waiver. Similar view was taken by {{FOOT NOTE}}
(1) PLD 1971 SC 700 {{FOOT NOTE}} ' a Division 13ench of this High Court in the case of Mst. Bachi Bai v. Ghulam Abbas L. P. A. No, 198 of 1971, decided on 15-1-1980 in which one of us was a member and we are in full agreement with the view expressed in that case. Mr. Yousuf Rafi, the learned counsel for appellant, attempted to support the reasoning of the 1st Appellate Court by stating that the landlord was regularly withdrawing the rent from the Court and therefore it should be presumed that he had the knowledge that the rent was deposited on 23-11-1965 and his failure to make application under section 13(6) of the Ordinance in spite of knowledge amounted to waiver of default. The contention of the learned counsel has to force. According to the report of the Nazir dated 31-3-1966, made on the application of the respondent dated 18-3-1966 no deposit was shown to have been made by the appellant in Court. In fact the allegation under subsection (6) of section 13 of the Ordinance filed by the respondent was that no deposits at all were made by the appellant in compliance with the order of the Rent Controller. The learned counsel for the appellant was unable to point out any material from the record to show that the respondent had knowledge of the deposit of rent by appellant in Court before making the application dated J8-3-1966. We were also not pointed out any other act of respondent or any such circumstances, which could give rise to the inference that the respondent had waived the default in respect of the deposit of the rent for the month of November, 1965. In fact in the reply which the applicant filed to the application of respondent under subsection (6) of section 13 no plea of Waiver was raised and on the contrary it was insisted that the rent was being paid regularly in Court after the dismissal of the appeal in accordance with the direction of the Controller. With respect to default for months of December to April 1966, Mr., Yousuf Rafi, learned counsel for the appellant, argued that as the law was amended therefore the appellant was misled by not paying the amount before the 5th of each month as ordered by the Rent Controller. This explanation cannot be accepted now as in his first explanation which the appellant had offered to in reply to respondent's application under subsection (6) of section 13 of the Ordinance, no such plea was taken. The appellant, in or opinion, had failed to offer any plausible explanation for the defaults in respect of the arrears as well as the current monthly rents which relieve him against the penalty prescribed in subsection (6) of section 13 of the Ordinance for not complying with the directions of the Rent Controller. Mr. Yousuf Rati contended that the rule of strict construction laid down in the two cases decided by the Karachi Bench of the erstwhile High Court of West Pakistan in the case of Syed Ehsan All v. Jaffer Ali and another (1) and Khair Muhammad Nizamani v. Abdul Quddus (2) should be applied and the order of the Controller be held to be unlawful not being in conformity with the amended provision of subsection (6) of section 13 of the Ordinance. We have already held earlier that the direction of Rent Controller dated 26-10- 1964 was valid and legal and was not affected by the amendment introduced by Ordinance XXI of 1965. The two cases cited above, therefore, have no application in the present case. In the aforesaid cases the Court had found that the directions for deposit of rent given by the Controller were not in accordance with the provisions of the statute. In the case of Syed Ehsan Ali v. Jaffer Ali, which was a case under the amended Karachi Rent Restriction Ordinance of the Rent Controller had directed the tenant to "clear off" the dues instead Of directing him to deposit in Court as was envisaged in section 10(6) of the Karachi Act. Similarly in the case of Khair Muhammad Nizamani v.
Abdul Quddus the Controller had passed an {{FOOT NOTE}}
(1) PLD 1964 Kar. 418 (2) PLD 1965 Kar. 367 {{FOOT NOTE}} ' order directing the tenant to deposit rent before 20th of each month as against the language of the subsection (6) of section 13 of the Ordinance, which provided for deposit of rent before 5th of each month. It was in these circumstances that the Court refused to enforce the penalty provided in the Ordinance, against the defaulting tenant. No such situation exists in the present case and we are unable to see how the rule laid down in the above two cases is of any help or assistance to the appellant in the present case. The rule of strict construction of a provision of law in or opinion, only means that it shall be so construed that no cases shall be held to fall within I which do not fall both within the reasonable meaning of its term and within the spirit and scope of the enactment. This rule of interpretation is equally applicable while interpreting the provision prescribed for the enforcement of the penal law whether it be civil or criminal. Applying the above test we have reached the conclusion that the default committed by the appellant in respect of deposit of arrears as well as current monthly rents fell well within the reasonable meaning, spirit and scope of subsection (6) of section 13 of the Ordinance and as such no exception could be taken to his summary ejectment -under the aforesaid provision of law. The only other contention of Mr. Yousuf Rafi, learned counsel for the appellant, which remains to be considered is that the landlord having accepted the rent directly from the appellant after the order of Controller dated 26-10-1964 was estopped from applying to the Rent Controller under section 13(6) of the Ordinance for summary eviction of the appellant on account of the default committed by him in deposit of rents in Court.
This contention of the learned counsel equally has no force as the complaint was made by the respondent to the Controller for striking off the defence of the appellant in respect of those default which he committed in depositing the rent in Court and not in respect of those payments which were made by the appellant directly to the respondent during the pendency of his 1st appeal against the interim order for deposit of rent. It was appellant's own case before the Controller in reply to the application of respondent under section 13(6) of the Ordinance, that he started paying monthly rents to respondent directly as the order of Controller was stayed in his appeal and as soon as the appeal was dismissed, Ale started deposited the rents in Court. We are unable to see how in these circumstances it can be argued that the respondent was estopped from making an application under subsection (6) of section 13 of the Ordinance for striking off the defence of the appellant for the defaults committed by him in depositing the rent in Court. The learned counsel for the appellant, lastly invited or attention that a sum of Rs, 16,000 was lying with the respondent which the appellant had paid to him at the time of commencement of the tenancy. Mr. Rahimtullah, learned counsel for the respondent, did not dispute such a "deposit" but contended that this deposit was in the nature of "Security" which was refundable only after adjustment, if any, on the determination of the tenancy and, on yielding the possession of the premises by the appellant. We cannot allow the appellant to raise this point at such a belated stage as this point was neither raised before the Rent Controller, 1st Appellate Authority or before the learned Single Judge. Even otherwise, it is not disputed by Mr. Yousuf Rafi, the learned counsel for the appellant, that the sum of Rs, 16,000 was held by the respondent as a "security deposit" and that the appellant had not sought adjustment thereof in the rent account submitted before the Rent Controller, nor was the adjustment of this amount claimed before the 1st Appellate Court in appeal which was filed by the appellant against the direction of the Rent Controller for deposit of rent in Court. In these circumstances, apart from the fact that this point cannot be allowed to be raised at such a belated stage, we are of the view that such deposit cannot be adjusted against arrears of rent in such manner.
5. For the foregoing reasons, we dismiss this appeal with costs but allow for months' time to the appellant to vacate the premises and hand over its vacant possession to the respondent.