This is a Second Appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance of the1959 against the order of the learned III Additional District Judge, Hyderabad, passed in Rent Civil Appeal No. 294/78 on 4th March, 1980 dismissing the same and thereby upholding the order of ejectment of the appellant from the ground floor premises bearing No. F/1170, Gari Khata, Hyderabad, passed in R. A. No. 302/76 by the learned IV Extra Join; Civil Judge and Rent Controller.
Hyderabad.
2. The facts briefly stated are that one Mst. Amtullah Bi predecessor of the respondents was issued P. T. O. Dated 28-12-1959 in which the property transferred to her was described as House No. P- 1070/E, "portion in possession." On her application filed on the very next day seeking inclusion of the room on the southern extreme side, in possession of Muhammad Anwar. (present appellant), in her P. T. O. The Deputy Settlement Commissioner by order dated 24-2-1960 held that the said portion in possession of Muhammad Anwar had been transferred to her. The P. T. O. Already issued to Mst.
Amtullah Bi was amended on 16-4-1964, by which the portion in her possession plus the room occupied by Muhammad Anwar was included. On 20-2-1960 the said Mst. Amtullah sent a notice to the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1.958 intimating the transfer of the house to her and demanding rent. Another notice was also sent to the appellant by her on 6-10-1960. In reply the appellant first demanded copies of the transfer documents, but subsequently he started paying rent to Mst. Amtuliah Bi. He continued to pay rent to her for a period of nearly three years.
Litigation; however started between the parties in which the title of Mst. Amtullah Bi was also challenged by Muhammad Anwar who claimed transfer of the said room to him. The disputes, resulted in filing of separate writ petitions in the High Court by the appellant as well as Mst.
Amtullah Bi being C. I'. No. 574/67 (Mst. Amtullah Bi v. Settlement Commissioner and others) and C.
P. No. 734/73 (Muhammad Anwar v. Settlement Commissioner and others). The Writ Petitionswere decided on 22nd March 1.974 whereby the transfer of the room in occupation of Muhammad Anwar/appellant in favour of Ust. Amtullah Bi was upheld.
2. In the meantime Mst. Amtullah Bi filed various ejectment case against Muhammad Anwar, which need not be discussed here as the present appeal arises out of ejectment case which was filed by her on 4-9-1976 under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 and was registered as R. A. 302176.
The above case came up for trial before the learned IV Extra Joint Civil Judge and Rent Controller, Hyderabad. In this case again the relationship of the landlord and tenant was challenged by the appellant. A preliminary issue was framed by the Rent Controller which was decided against the appellant/ tenant by order passed on 15-2-1978. It was held that there existed relationship of landlord and tenant. Between the parties.
The case thereafter proceeded on merits and the Rent Controller after recording evidence and- hearing the patties found that the appellant had committed default in payment of rent. He.
Therefore, directed the eviction of the appellant from the tenement in question by order passed on 31st July 1978.
3. Against the aforesaid order of the Rent Controller the appellant filed an appeal before the District Judge, Hyderabad which on transfer was heard by the III Additional District Judge, Hyderabad. The said appeal was dismissed by order passed on 4-3-1980 and the order of the Rent Controller was upheld.
It may be mentioned that Mst. Amtullah Bi in the meantime died and her legal representatives were brought on record.
4. Against the aforesaid orders the present second appeal has been filed and the only argument advanced by the learned counsel for the appellant is that the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was given to the appellant before the inclusion of the room in his possession in the P. T. O. Issued in favour of Mst.. Amtullah Bi and as such the said notice was not valid and the tenant/appellant could not be deemed to be a defaulter and liable to ejectment.
5. The contention raised by the learned counsel for the appellants has no force. No such plea was raised in the lower Courts and accordingly this new point cannot validly be allowed to be argued at this late stage in the second appeal.
6. The above submission of the learned counsel for the appellant cannot succeed for another reason which is discussed hereinafter : The Displaced Persons (Compensation and Rehabilitation) Act (Act No; XXVIII of 1968) was repealed by Evacuee Property and Displaced Persons Laws (Repeal) Ordinance (Ordinance No. XV) of 1974 (hereinafter referred to as repealing Ordinance) which was promulgated on 30th December 1974.
This Ordinance was subsequently repealed on 28-1-1978 by Evacuee Property and Displaced Persons (Laws (Repeal) Act No. XIV of 1976 (hereinafter referred to as repealing Act of 1975). To fully understand the implications of the said repealing Act No. XV of 1975 the relevant provisions (sections 2 and 4) thereof are reproduced herein below : "Section 2. Repeal of certain laws.-(1) The following Acts and Regulations are hereby repealed, namely
(i) ------------------------------------------------------..
(ii) ------------------------------------------------------.
(iii) ------------------------------------------------------.
(iv) the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958)
(v) ---------------------.
(vi) ---------------------..
(vii) ---------------------..
Subsection (2).-Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
Subsection (3).-Any proceedings transferred or remanded to an Officer in pursuance of subsection
(2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
Subsection (4).-The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related.
"Subsection (5). Disposal of residual work.-All the work regarding documentation, both for Urban and rural properties, recovery of outstanding transfer price, rent of mortgaged money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Acts and Regulations shall stand transferred to the Board of the Revenue of the Province."
The above repealing Act (Act No. XIV of 1975) therefore, completely obliterates Displaced Persons (Compensation & Rehabilitation) Act, 1958 from the statute book except to the extent expressly saved by the said Act for disposal of the proceedings pending immediately, before the repeal and/or remanded by the Superior Courts as expressly provided therein and for disposal of residual work. Section 30 of the repealed Act No. XXVIII of 1958 is therefore not saved. Accordingly an occupant/tenant (in this case the appellant) cannot invoke its provisions for claiming any protection from eviction in proceedings filed in accordance with the law which now governs and regulates the relations between the landlord and tenants.
7. It would also be relevant to note here :hat the respondent had filed the ejectment case (R. A. No. 302/78) in the Court of the Rent Controller on 4-9-1976, when the Act No. XXVIII of 1958 already stood repealed. The plea of want of any notice under section 30 of the said Act, therefore was not available to the appellant/tenant. This fact though important and relevant for this case, could not make any difference even if the repealing Ordinance of 1974 or repealing Act No. XIV of 1975 had come into force during the pendency of the case or the appeal.
PLD 1964 SC 536 "The service of the notice is, therefore, not merely a formality for acquainting the tenant of the transfer of the premises nor merely in the nature of a notice of attornment but it is designed to fix the terminus a quo of the period of protection."
8. I am fortified in reaching the above conclusions by the decision of this Court in the case of Haji Adam Hussain v. The Federation of Pakistan (1).
The question before the Court was the effect or repeal of section 226 of the Government of India Act 1935 which imposed a bar on the exercise of the Original jurisdiction of the High Courts in any matter concerning the revenue. The suit was instituted in the High Court at Karachi on its Original Jurisdiction at the time when the bar as aforesaid existed but when the suit came up for disposal, section 226 mentioned above-stood repealed. The learned Judge (Mr. Justice A. S. Faruqui), discussing the affect of the repeal, held : "Therefore, as soon as the bar of section 226 was removed by the repeal of that provision and by the absence of similar provision in the late Constitution section 9 of the C. P. C., came into full force.
The question of the exclusion of the original jurisdiction of the High Court related to a matter of procedure and did not create any substantive right in favour of the Government and, therefore, when at the time of the disposal of the suit there was no bar of jurisdiction the Court cannot be deprived of it upon the ground that there was such a bar at the time when the suit was instituted."
The learned Judge further held : ". . a provision of statue dealing with matters of procedure may property have retrospective effect unless that construction be textually inadmissible. Nobody has any vested right to a particular procedure and, therefore, normally it is the procedure, in force at the time of the trial or the disposal of the suit which must be applied. The Court cannot refuse to exercise jurisdiction if it has got it when the case comes up for trial upon the ground that it did not have such jurisdiction when the suit was instituted."
9. I may also refer here to the judgment in the case of Sadat Muhammad v. Municipal Committee Jhelum City (2).
(1) PLD 1962 Kar. 21(2) PLD 1970 Lah. 99 "19. On a consideration of the law on the subject we are of the view that the provision of notice as contained in section 80, C. P. C. Or Article 94 of the Basic Democracies Order is a procedural requirement for the enforcement of the claim and is neither a part of cause of action of the plaintiff nor a vested right of the defendant. The Supreme Court has in the case of the State v. Muhammad Jamil upheld the view that no party to litigation has a vested right in its procedure and an alteration in the procedure is retrospective unless there be some good reason against such a view.
Thus the absence of the notice, in view of the alteration in law before the judgment and decree could not be fatal to the suit."
10. Even otherwise on the repeal of Displaced Persons (Compensation and Rehabilitation) Act No. XXVIII of 1958 section 30 thereof providing for notice and protection of six years, to tenant on certain conditions, by the Ordinance No. XV of 1975 the plea of want of notice or protection from ejectment for six years would no longer be available to the (appellant) tenant. Similar view has been taken in the case of Rehmat Bibi v. Mariam Akhtar 1980 CLC 883, where while considering the effect of the above-referred repealing Act No. XIV of 1975, on the requirement of notice and six years protection to tenants provided under section 30 of the repealed Displaced Persons (Compensation and Rehabilitation) Act of 1958 the learned Court held :- "Furthermore, if it were considered in the absence of any stipulation in the document of title that protection of 6 years had continued even after repeal then there remained nothing against which the repeal would be operative. The foundation of the condition was section 30, of the Repealed Act which, had been removed, then automatically the edifice which could be raised on that foundation should fall to the ground. It is a firm view of the Supreme Court that where the basic provision of law is taken off the statute then anything standing on it would loose its efficacy."
The learned Judge further observed : "Rather the ejectment of the tenant is the implied element of enjoyment of ownership of property but this right can be restricted by mutual contract as in the case of a tenant for a fixed period but once the lease comes to an end the stipulation disappears. Also stipulation may disappear by operation of law or in the exercise of special power reserved by the owner to himself. In the circumstances the paramount owner thought it fit to dispense with the protection which was initially provided by a condition of notice in the law avoiding to spread litigation on different sides as between the persons entitled to the transfer of the property and the Settlement Authorities and between the persons in possession inter se and the persons in occupation and the transferees during the continuation of the Settlement Operation. The object or the protection appears to have been achieved by closing the Settlementoperation and leaving the transferees free in the matter of relationship of the landlord and tenant to be regulated by the general law, as expressed in rule 4 of the Permanent Transfer Rules, 1961."
The view taken by me also find support from observations made in the case of Ghulam Qadir v.
Nazir Ahmad PLD 1980 B J 15, where the learned Judge held : "To my mind the respondent's liability to issue notice to the appellants continued only as long as section 30 was in force. The obligation being co-extensive the law on the subject the respondent shall not be burdened with it after the repeal of the Act."
11. The submissions made by the learned counsel for the appellant that ejectment case was not maintainable and the appellant is entitled to protection under section 30 of Displaced Persons (Compensation and Rehabilitation) Act of 1958, in spite of its repeal therefore cannot be accepted.
No other point has been urged. Both the Courts below have found that the appellant/tenant is a wilful defaulter in payment of rent. These concurrent findings given against the appellant have not been challenged. The appeal is accordingly dismissed. The appellant is granted four months' time to vacate the premises.