This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 hereinafter called `the 1979 Ordinance' First Rent Appeals Nos. 279 of 1981 and 280 of 1981, are all directed against a common order dated 15-4-1981, passed by the Controller, Karachi, whereby he allowed four eviction applications under section 14 of 1979 Ordinance filed by the respondent against the appellants in the aforesaid appeals, all tenants, and o_ -her tenant in respect of four separate tenements in a residential building situation Plot No. J. M. 313-3, (A-6), Cosmopolitan Colony, Karachi and directed the appellants and the other tenant to vacate the premises within sixty days of passing of the order and put the respondent in possession thereof.
2. I may state that the other tenant namely, Pervez, who initially contested the proceedings but subsequently abandoned the same has not filed any appeal against the order.
3. The facts given rise to these appeals briefly stated, are that the respondent is owner of the aforesaid building.
4. By an agreement of Lease dated 26-2-1948, entered into through his son Javed Farooq, the respondent let out a portion on first floor of the building, consisting of three bedrooms, one drawing and dining hall, one room with attachment and one separate servant quarters to Muhammad Abdul Razzak (appellant in F. R. A. No. 248 of 1981). One of the terms of the lease provides that the respondent shall not be entitled to apply for ejectment of the appellant on any ground whatsoever, except for default in payment of rent.
5. Suleman, appellant in First Rent Appeal No. 275 of 1981 is tenant of a portion on the ground floor of the said building.
6. Bashir Ahmed, appellant in First Rent Appeal No. 280 of 1981 is the tenant of another portion on the ground floor of the building under an agreement of tenancy dated 1-1-1977 which also contains a similar term as contained in the agreement with Muhammad Abdul Razzak.
7. It appears, that the respondent has filed applications under section 13 of the repealed Sind Urban Rent Restriction Ordinance, 1959 against Sulaiman and Bashir which are still pending hearing.
However, on promulgation of 1979 Ordinance the respondent filed separate applications under section 14 of the 1979 Ordinance against the appellant. Before filing the applications the respondent served through his Advocate separate notices dated 26-12-1979 on the appellants claiming that he was going to attain the age of 60 years and requiring the appellants to vacate the premises within two months from the date of the notice as he required the same for his own use and occupation and for the use and occupation of the members of his family including his three sons, two of whom, according to the notice, were to be married and their marriages were held up for want of accommodation.
8. The appellant in First Rent Appeal No. 248 of 1981 by the reply dated 3-2-1980, through his Advocate denied the claim of the respondent.
9. Bashir Ahmed, appellant in First Rent Appeal No. 280 of 1981 by a letter dated 16-3-1980, also denied the claim of the respondent. Thereupon the respondent filed separate applications against the three appellants now before me, in addition to Pervez, who has not come up in appeal against the order of eviction.
10. It is the case of the respondent that he had shifted to Lahore and on failure of his business there he returned to Karachi and is now residing in rented premises with his family. He therefore, claimed that he needed all the premises as according to him the same are one unit. He further claimed that he was entitled to evict the appellants under section 14 of the Ordinance as he has attained the age of 60 years,
11. On the other hand the appellants denied that the respondent is of 60 years of age and Sulaiman, claimed that he was about 65 years of age and Muhammad Abdul Razzak, appellant claimed that the age of the respondent was more than 60 years. Some of them also claim that the action has been brought on refusal to enhance the rent and that they had paid `Pugree' to the respondent and that the relationship of the respondent with his sons, particularly with Saved Farooq, was strained and they did not live together and that some of the sons of the respondent were living outside the country. One of the appellants relied on the terms of the tenancy agreement whereby the respondent agreed not to apply for eviction of the appellant from the premises except for default in payment of rent.
12. Before the Controller the respondent filed his own affidavit and the atfidivit of Malik Sharihuddin, Advocate. In one of the cases he addi--tionally filed affidavit of Ismail Zabih, a journalist but did not produce him for cross-examination, with the consequence that the same could not be considered.
The respondent also produced a photostat of a certified copy of the extract from the Birth Register maintained by Kanpur Municipality which reads as follows "FORM A" .
"Birth Registered during month of-and liable to Compulsory Vaccination during month of--in Vaccination Circle of Kanpur Municipality, 1919.
Consecutive Number from Ist Jan. 1919126 Reporting agency and date17-11-1919 Name of circle Name of Mohaliah and House No .99/364 Date of Birth15-11-1919 Name of Father or GuardianMoula Bux.
Name of child if any findOmer Farook (Sd)-Illegible 1-2-1980 Caste and Sex of ChildMohamedan (Male).
Cause of Non-Vaccinations Left the, Town or Excused on account of Seal f Smallpox (date of Verification)28.3 Remarks(Sd)-Illegible.
True Copy . Compared byCopied by (Sd)-Illegible (Sd)-Illegible(Sd)-Illegible 31-3-198031-3-198031-3-1980 Illegible Sub.Registrar, Kanpur.
Seal of the Metropolitan Magistrate, Kanpur.
True copy attested (Sd)-Illegible 1-4-1980.
M. R. KHAN, R. C. M. M. KOTWALI & MAG. IST CLASS, KANPUR,
13. The Controller after holding that the requirements of section 14 of 1979 Ordinance has been fulfilled, has ordered eviction of the appellants by the order now impugned before me.
14. 1 have heard Mr. Iqbal Qazi, Advocate for the appellant in First Rent Appeal No. 248 of 1981, Mr. Khaiid M. Ishaque, Advocate for the appellants in First Rent Appeals Nos. 279 of 1981 and 280, of 1981, and Mr. Habibur Rehman's, Advocate for the respondent in all appeals at great length and they have taken me through the entire record including depositions
15. Mr. Lqbal Qazi has raised before me the following grounds in support of the appeal
(1) That the application under section 14 of. The 1979 Ordinance was not maintainable.
(2) That the notice under section 14 of the 1979 Ordinance was invalid.
(3) That the respondent failed to prove his bona fide requirement of the building.
16. Mr. Khalid M. Ishaque Advocate in addition to the same grounds as urged by Mr. Qazi, urged the ground that the Controller failed to apply his mind as to the extent of the requirement of the premises by the respondent, I now, proceed to deal with these grounds.
17. With regard to the first ground it is submitted by the learned counsel for the appellant that the application was not maintainable for (i) the respondent, according to the term of lease agreement was not entitled to apply for eviction of the tenant on any ground whatsoever, except on the ground of default in payment of rent, (ii) that the respondent was not qualified to apply as he was more than 60 years and 6 months of age when he applied for eviction of the appellants.
18. Now, taking up the first submission, it is urged that the right to evict a tenant from the premises is in, the nature of a privilege and the respondent could give up the same which he did by the tenancy agreement. In this connection reliance is placed on E. A. Evans v. Muhammad Ashraf (PLD 1964 SC 536), S. Raja Chetty and another v. Jagannathadas Govindas and others (AIR 1950 Mad.
284), Craies on Statute Law, Seventh Edition, page 269. In-my opinion, the submission is misconceived for the rights of the parties as landlord and tenants are governed by the provisions of the Ordinance, which in its Preamble provides as follows " Whereas it is expedient to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within urban areas." .
19. Therefore, the tenancy rights and, obligations between the parties will be governed by the provisions of the Ordinance. Otherwise the provisions of the Ordinance which seek to protect the interest of the parties would be defeated. It is only where law does not make any specific provision for any particular right or obligation or make the same subject to any agreement to contrary that the Terms of the agreement will prevail. It is settled that a party cannot contract out of right or advantage. Conferred by law for such a contract would be void being opposed to public policy. If any authority is needed reference may be bad to E. A. Evans v. Mohammad Ashraf. Even, if it is assumed that a party could contract out of law on the ground that certain provisions were for his benefit. Still there should be conscious waiver of those rights. The right to apply under section 14 of the 1979 Ordinance for summarily eviction of the appellants came into force only on the promulga- -tion of the Ordinance on 21st November, 1979, prior to that there could not have been any waiver much less a conscious waiver of such right for the same was not then in existence. Further, if the counsel for the appellants intended to argue that by the terms of tenancy agreement the respondent agreed not to apply for eviction of the appellants from the premises on any ground whatsoever and at any time that would create a right in the appellants remain in the premises in perpetuity or at least till the premises is not destroyed. Such an interest could not be created by such an agreement without registration of the same for any lease beyond one year requires registration. In E. A. Evans' ease relying on the following passage from Maxwell's Interpretation of Statute, 11th Edition, page 376 it was argued that a party could waive and agree to waive the advantage of law or rule made solely for the benefit and protection of the individual in his private capacity, which right may be dispensed with without infringing any public right or public policy. The passage reads as follows "Everyone has a right to were and to agree to waive the advantage of a law or .Rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Where in an Act there is no express prohibition against contracting out of it, is necessary to consider whether the Act is one which is intended to deal with private oil rights only, or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation."
20. However, further question (according to Maxwell also) that requires consideration is whether the act is one which is intended to deal with private rights only, or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation.
21. Here I may quote a passage from minority view of Kaikaus, J. In the above-cited case which appears at page 554 of the report and reads as follows "The position is well-recognised that any right or benefit conferred on a party can be waived for a person is entitled to do anything with what is his, but if the provision be based on public policy it cannot be waived. The question, therefore, to be determined in each case would be whether the particular provision in dispute is based on public policy. When we say that a rule is based on public policy we mean it has been framed not for the benefit of the individual whom it actually benefits (or not for his benefit alone) but for the benefit of the public or the society. That the question as to whether a provision can be waived is to be determined on the basis of public good or public benefit or avoidance of injury to the public will be clear on a reference to commentaries and decided cases. In Craies on Statute Law after saying that all rights can be waived there is a proviso added which says: But the conditions in an enabling Act which have been prescribed for the purpose of protecting or benefiting the public cannot be dispensed with'.
Any agreement which tends to be injurious to the public or against the public good is void is being against public policy. `This takes me to the question whether these prohibitions were really made for the benefit of the judgment-debtor only or in the interest of the society at large i.e. On grounds of public policy'."
22. It is, therefore, clear that the matter is to be considered from the point of view of the public policy.
23. Now, the Ordinance has been obviously made to protect the respective rights of the landlords and tenants and the need of promulgation of such law has arisen because of shortage of accommodation and to control demand of exorbitant rent. Therefore, if a party is allowed to contract out of law that would, where there is shortage of accommodation and consequently exorbitant rents are demanded, defeat the purpose of the law and would therefore, be clearly opposed to public policy.
24. Now, in the Madras case relied upon by Mr. Iqbal Qazi referring to the following passage from Maxwell, 9th Edition, page 389 "Every one has a right to waive and to agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy." it ruled as follows "In the absence of authority that it is not permissible for the parties to contract themselves out of the provisions of this Act we hold that they can agree to be governed by terms and conditions which may be inconsistent with some of the provisions of the Act. There is no provision in the Act which has a material bearing on this aspect scourched in imperative terms, as, for example, found in some enact--ments which declare that, any action done in contravention of the enactment is void. Even assuming that a plausible argument can be raised that on the grounds of public policy the tenant should not be Bound by any term inconsistent with the Act which is to his detriment, we see no offence to' public policy in allowing a landlord to abridge his rights. Otherwise it comes to this, that an Act intended to prevent unreasonable eviction of tenants can be used for the perpetration of the very thing sought to be prevented."
25. However, with due respect to the learned Judges they did not consider that a tenant or a landlord may be compelled to contract out of law due to reasons to meet that the law is promulgated and thus it would defeat the law and would therefore, be against public policy.
26. Mr. Habibur Rahman, on the other hand relies on Muhammad Yousuf v. Abdullah (PLD 1980 SC 298). In this case the tenant entered into an agreement with the landlord where under he deposited a sum of Rs.1,000 as security which was to be confiscated in case the lessee did not pay the rent for 3 months and/or did not give vacant possession of the premises to the landlord at the termination of the tenancy. It was held that these conditions were illegal because the Ordinance expressly prohibits the landlord from recovering anything except fair rent from tenant, and because the Ordinance specified the grounds on which a tenant can be evicted, the expiry of lease not being a ground on which a tenant could be evicted. It was held that `the covenant accepted by the appellant to hand over vacant possession at the time of determination of lease was illegal and could not have been in force'. I there--fore, hold that this ground has no force and accordingly it is rejected.
27. It is next submitted that the respondent was more than 60 years and six months or rather 65 years of age when he served the notice and therefore, was not entitled to file application under section 14 of the Ordinance. It is further submitted that the respondent failed to prove his age. On the other hand Mr. Habibur Rahman submitted that the appellant proved his age through the birth certificate. Alternatively, he submitted that even if the respondent was more than 60 years of age still he was entitled to maintain the application under the amended provisions of section 14 of the Ordinance.
28. Now, I would address myself to the question whether the respondent has proved that be was 60 years of age at the relevant time.
29. In the application the respondent has stated that he was 60 years of age and attained the age of 60 years on 15-11-1969 and he supported his statement by producing birth certificate from Kanpur Municipality which has already been in extenso quoted hereinabove. He however, stated nothing in his affidavit except relying on the copy of the certified copy of the extract from the Birth Register. It was submitted by the learned counsel for the appellant that the notice dated 26-12-1979 states that he was going to be 60 years old although according to the birth certificate which shows his date of birth as 17-11-1919, he had already become 60 years. It is, therefore, argued that no reliance can be placed on the birth certificate.
30. It is further submitted that the birth certificate was not proved in accordance with the provisions of the Evidence Act and the Controller has unduly relied on the birth certificate besides relying on the amendment in section 14 (1) of the Ordinance whereby the proviso to subsection (1) substituted vide Ordinance XII of 1980 dated 28-8-1980 which made it possible for a landlord to file application any time after attaining the age of 60 years, subject, however, to the fulfillment of the conditions mentioned therein.
31. So far as. Photostat copy of the Birth Certificate is concerned it is in my opinion not proved in accordance with the provisions of section o the Evidence Act and it does not fulfill the requirement of provisions of section 78 therefore, as it does not contain certificate by a notary public or Pakistan Consul or Diplomatic Agent that the copy is duly certified by the officer having legal custody of the original.
32. Mr. Habibur Rahman, has however, pointed out that he has placed on record of the First Rent Appeal No. 248 of 1981 another Photostat copy compared and attested by a notary public at Kanpur and it bears the seal of the Municipality. I may here reproduce the contents of the photo-- copy of the certificate which reads as follows Form A "Birth Registered during the month of and liable to compulsory vaccination During month of-in vaccination.
Circle of Kanpore Municipality, 1919 Consecutive Number from Ist Jan. 1919. 126.
Reporting agency and date . 17-11-1919.
Name of Circle .
Name of Mohallah and House No .99/364.
Date of Birth. 15-11-1919.
Name of father or Guardian .Moula Bux.
Name of child, if any fixed .Omer Farook.
Caste, and sex of child .Mohamdan (Male)
Cause of Non-Vaccination .
Left the Town or Excused on account of Seals of Smallpox (date of verification) .28-3-1920.
Remarks.(Sd.) Illegible.
AttestedSeal of Atanikta (Sd.) Illegible.Nagar Swathya Adhikin Notary KanpurNagar Moha Poliba, District KanpurKanpur: 11-5-1981.
12-5-1981.
ComparedsSeal of Notary, True copy of theKanpur District: before me.12-5-1981.
(Sd.) Notary, Kanpur, District.
12-5-1981.
33. It will be seen that this copy also does not contain the required =certificate from the Notary Public or Consul or diplomatic agent. Therefore, this certificate not being in accord with law could not prove the age. If any authority is needed reference may be had to Muhammad Usman v. Lal Muhammad and 12 others (PLD 1975 Kar. 352).
34. It was then argued by Mr. Habibur Rahman that the provisions of the Evidence Act, strictly speaking were not applicable to the proceedings under the Rent Ordinance. In support he relied on Javid Igbal v. Rana Muzaffar Khan (1976 SCMR 219). However, this was a case under the West Pakistan Urban Rent Restriction Ordinance, 1959. Under the present Ordinance the provisions are different and there were no such provisions under the 1959 Ordinance as are contained in section 19 of the present Ordinance, whereby the Controller is required to receive evidence.
35. Section 1 of the Evidence Act makes the Act applicable to all judicial proceedings inter alia in or before any Court, except affidavits presented by any Court or officer and the proceeding before the arbitrator.
Section 3 of the Evidence Act defines Court, which includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. The expression, `Judicial proceeding', is not defined in the Act but it came up for consideration before a Division Bench of the Lahore High Court in Abdul Hamid v. Malik Karamdad and 2 others (PLD 1966 Lah. 60), and it was observed by Mr. Muhammad Akram, J. Who delivered the opinion of the Court, in paragraph 9-A at page 27 of the report observed as follows :- "Judicial proceedings" are to be distinguished from the duties of administrative tribunals. As observed by Lopes, L. J. In Dwarkins v. Lord Rokeby (8 Q B 255) "the word `judicial' has two meanings.
It may refer to the discharge of duties exercisable by a Judge, by Justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind that is, a mind to determine what is fair and just in respect of the matters under consideration. Justices for instance, act judicially when administering law in Court, and they also act judicially when determining in their private room what is right and fair in some administrative matter brought before them, for instance, levy a rate." But the proceedings in which only administrative duties are discharged cannot be regarded as judicial proceeding within the meanings of Evidence Act."
36. Under section 19(3) of the Ordinance the Controller is bound to receive evidence first of the applicant and his witnesses and then of the respondent and his witnesses. It is therefore, clear that the Controller is a officer legally authorised to take evidence under the Ordinance and accordingly it is a Court. In any case, since the proceedings before him, if the provisions of the Ordinance are kept in view, have all the necessary ingredients of a judicial proceeding, the Evidence Act is therefore, applicable to such proceedings.
37. In Ram Singh v. Harakhdhari Singh and others (AIR 1918 Pat. 289), a question arose whether an enquiry under the Bengal Registration Act, for the purpose of registering the names of rival claimants, is a Court within the meaning of section 3 and it was observed by a Division Bench as follows :- "On behalf of the appellant it is contended that the enquiry held by the land registration department for the purpose of registration of the rival claimants, was not a judicial proceeding, or an enquiry by a Court.
There does not appear to be any substance in this contention regard being had to the definition of the word "Court" given in the Evidence Act. Section 3, which says Court includes all Judges, Magistrates and all persons except arbitrators legally advised to take evidence. Sections 52 and 53, Land Registration Act, require the Officer holding the enquiry under the Act to take evidence."
This case has been followed by Sinha, J. In Burrakar Coal Co. Ltd. v. Labour Appellate Tribunal of India and another (AIR 1958 Cal. 226). Accordingly, I hold that the Evidence Act now applies to the proceedings before the Controller, con--sequently, the birth certificate should have been proved in accordance with the provisions of the Evidence Act, which has not been done in these cases.
38. Now, I should consider the alternate submission of Mr. Habibur Rahman. It is argued by Mr. Habibur Rahman that the proviso to section 14(1) of the Ordinance having been substituted by Ordinance X11 of 1980, the requirement of age limit of the landlord 60 years was done away with and since it is admitted by the appellants that the respondent was of 65 years of age, therefore, the requirement of section 14 of the Ordinance as to age is fulfilled. However, it is settled law that an amend--ment in substantive law is always- prospective unless expressly or by necessary implication the enactment provides otherwise. Then Mr. Habibur Rahman argued that the amendment is procedural in nature. But this argument has no substance for the amendment was made in the conditions on fulfil--ment of which a right is conferred on a landlord to apply for eviction of a tenant even without proving bona fide requirement of the premises which is otherwise a necessary condition for an application for eviction of a tenant under section 15 of the Ordinance. I accordingly, hold that the respondent failed to prove the factum that he was 60 years of age or that he had filed the application within next 6 months of attaining the age of 60 years.
Now, I take up the second ground. In relation to this ground it is urged that under section 14 of the Ordinance a landlord having the qualifica--tion prescribed by section 14 of the Ordinance is required to give to his tenant a notice of minimum two months to vacate the premises. In this case, it is submitted, that notice served by the respondent on each of the appellants was that he should vacate the premises within two month which notice it is contended, is therefore, not according to law, and con--sequently invalid. The contention has substance for under section 14 of the Ordinance a right has been conferred on certain classes of landlords to apply for summary eviction of tenants on fulfillment of certain conditions. It is, therefore, necessary that those conditions must be strictly complied with, for under this provision, the necessity of proving requirement of the premises in good faith which is the necessary condition of section 15 of the Ordinance, has been done away with. Reliance is placed by Mr. Iqbal Qazi on a Supreme Court decision in Birendra Mohan Das v. Aminuddin Malik (1970 SCMR 304), wherein Saj;ad Abmad Jan, J. At page 30 of the report observed that "when action is taken under a special statute, it must fulfil the conditions of that statute to gain validity". This principle will, in my opinion, also apply with equal force when an action is taken under special provisions of any statute. In further support, Mr. Idbal Qazi referred to the following passages from Craies on Statute Law, 1971 Edition, pages 266 which reads as follows: "(vi) Statutes giving jurisdiction to Courts am usually absolute.
As a general rule, statutes which enable persons to, take legal proceedings under certain specified circumstances must be accurately obeyed not--withstanding the fact their provisions may be expressed in merely affirmative language."
Reliance is also placed upon Mangilal v. Sugan Chand (AIR 1965 SC 101). In this case notice under section 106 of the Transfer of Property Act, served by the landlord, which purported to determine the tenancy, was held to be bad for it fell short of the period of 15 days specified in section 106 of the Transfer of Property Act, by one day. In the present case also notice served required delivery of possession within two months and not on the expiry of two months. The same is, therefore, not according to law and consequently, invalid. The Controller, therefore, could not have ordered eviction of the appellants.
39. It is next submitted by both Mr. Iqbal Qazi and Mr. Khalid M. Ishaque that the respondent has failed to prove bona fide requirement of the premises. As already stated, if provisions of section 14 of the Ordinance are attracted and they would be attracted, if the conditions laid down therein are fulfilled then, what is required is that the landlord should inform the tenant by the requisite notice that he needs the building for his personal use. The only condition provided in subsection (2) which is required to be fulfilled is that he should not be in occupation of a budding owned by him in any locality. A landlord is not required to prove bona fide in relation to an application under section 14 of the Ordinance, for in my opinion, the law presumes bona fide, if the conditions laid down in section 14 of the Ordinance are fulfilled. However, it is admitted fact that the respondent is residing in a rented house on a rent of Rs.2.100, per month, which consists of only 4 bedrooms, drawing and dining rooms under an agreement of lease dated 20-11-1977 which was for a period of I 1 months commencing from 1-12-1979. Now a landlord is entitled to live in his own house, therefore, his bona fide, cannot be disputed in these circumstances. Nonetheless the bungalow in dispute consists of 4 premises, three of them are, separately occupied by the appellants. It is in evidence that there are in all 18/ 19 rooms. Therefore, in any case, the Controller should have addressed himself to the question as to how many premises were reasonably required by the respondent which be has failed to do.
40. It is next submitted that the Controller has granted eviction of 4 tenants. But one of the tenants has not preferred any appeal and there--fore, that order against him has become final. It is therefore, further submitted that the respondent is now in occupation of the tenement from which the eviction of Pervez has been ordered. But in my opinion, the further submission is not sound for the provisions of section 14(2) contemplate actual occupation of the building owned by the landlord and not mere notional occupation. Even otherwise, there is no evidence that the tenant Pervez has been evicted from the premises occupied by him or he has delivered the possession of the premises to the respondent or the respondent has occupied the same. Further, the question what accommodation was reasonably required by the respondent was to be considered by the Controller which may still be considered by him in relation to the two applications under section 15 of the Ordinance filed by the respondent and still pending in- his Court. I may not therefore, say anything more in this regard.
41. For the reasons stated above I set aside the order of the Controller and allow these appeals.
However, the parties are left to bear their own costs.