This is a second appeal, by a landlord against his tenant, against the order dated the 28th of March 1967, passed by the Additional District Judge, Lahore, on appeal, under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter called the Ordinance).
2. The brief facts are that on the 17th of January 1963, the appellant moved an application against the respondent under section 13(3)(a)(0(a) of the Ordinance before the Rent Controller, Lahore, for his ejectment from the residential building in dispute. He inter alia alleged that the tenant has built a house of his own in the urban areas, that he had caused damage to the property in dispute and impaired its utility and that the building was required by the appellant in good faith for his personal use and occupation and, therefore, he was liable for ejectment from the premises. The respondent in his written statement admitted the tenancy but denied the rest of the allegations against him and contested his liability for ejectment on any of those grounds. He admitted that he had started to build a house for him in Sodhiwal, but its construction could not be completed and was abandoned for want of sufficient funds and is lying in an uninhabitable condition. He asserted that in law this was not a sufficient ground to warrant his ejectment from the premises in dispute.
2. The learned Rent Controller framed the following issues arising out of the pleadings of the parties in the case:-- (1)Whether the respondent has constructed a house of his own?
(2)If so whether the respondent is not liable to ejectment on this ground alone?
(3)Whether the respondent is damaging the house and impairing its utility?
(4)Whether the petitioner requires the house for his personal use bona fide?
(5)Relief.
3. After the evidence, the learned Rent Controller found in favour of the appellant on issue No, 1 holding that it was proved that the respondent has built his own house in Sodhiwal. But in the opinion of the learned Rent Controller this cannot be a valid ground for ordering his ejectment. In consequence he found issue No, 2 in favour of the respondent. The appellant failed to adduce any convincing evidence in support of issue No, 3 which was found against him. He decided issue No, 4 against him. In the result he dismissed the petition on the 21st of October 1965. Dissatisfied with the order the appellant went up in appeal against it, which was rejected by the learned Additional District Judge, Lahore, on the 28th of March 1967. He has substantially affirmed the findings by the learned Rent Controller.
4. In this second appeal before me the learned counsel for the appellant did not seriously challenge the concurrent findings by the two authorities below on issues Nos, 1, 3 and 4. He has, however, challenged the findings on issue No, 2 only. He maintains that on the facts found that the respondent has already built his own house in this urban area, it was a sufficient ground for ordering his ejectment under the law. In support of his contention in this behalf the counsel for the appellant has very strongly relied on the second proviso to clause (b) of subsection (3) of section 13 of the Ordinance.
5. This second proviso was added to clause (b) of subsection (3) of section 13 of the Ordinance for the first time by virtue of the amendment introduced by the West Pakistan Urban Rent Restriction (Amendment) Act V of 1963 on the 18th of April 1963. This clause along with the second proviso is reproduced below :-- "(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided ..........................................
Provided further that if the application is in respect of a residential building, the Controller shall direct the tenant within four weeks of the application to put the landlord in possession of the building if, after a summary enquiry, he is satisfied that the tenant, his wife or any of his dependent children owns a residential building within the same urban area or owned such a building within sixty days preceding the commencement of the West Pakistan Rent Restriction (Amendment) Act, 1963."
6. The learned counsel for the appellant wanted me to read this proviso reproduced above as an independent and substantive provision in the law furnishing an altogether additional ground to the landlord for the expeditious ejectment of his tenant in case he, his wife or any of his dependent children was found to own a residential building belonging to them within the urban area.
7. In order to get at the true meanings of this proviso under consideration, it shall be necessary here to briefly examine the whole scheme of subsection (3) of section 13 of the Ordinance. This subsection is divided into two parts, clauses (a) and (b). Under clause (a) a landlord may apply against his tenant to the Controller for his ejectment from the residential, nonresidential and scheduled building or rented land, according as the case may be, on the ground that he requires it in good faith for his own use and occupation or for any of his children, under certain condition.
Suffice it to mention here that in this clause there is no ground providing for the ejectment of a tenant for the reason that he, his wife or his dependents have constructed a residential building of their own within the urban area. Clause (b) of this subsection (3) of section 13 merely lays down the procedure to be adopted by the Controller in the disposal of the application made to him under clause (a) and his powers in the matter. In case he is satisfied that the claim of the landlord made before him under clause (a) is bona fide he shall make an order directing the tenant to put him in possession of the premises. If, however, he is not so satisfied he shall make an order rejecting the application. As it is, clause (b) nowhere lays down that the Controller can order the ejectment of the tenant on any ground not enumerated in clause (a). Under the first proviso to this clause the Controller is authorised to give the tenant a reasonable time not exceeding four months in all, for putting the land- v. lord in possession of the premises. In reality this proviso is sub-ordinate to and does not travel beyond the scope of the operative part of clause (b). The second proviso to this clause was added only afterwards by virtue of the aforesaid amendment. It was added simply as a proviso to the operative part in the main clause and must, therefore, be interpreted as such and no greater meaning can be attached to it. In this context, it cannot be construed as enlarging the scope of clause (b), much less of clause (a) of subsection (3) of section 13 of the Ordinance.
8. According to Craies on Statute Law, page 217 (Sixth Edition), the ordinary rule of construction is that a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. In West Derby Union v. Metropolitan Life Assurance Co.,II Lord Wacton said: "When one regards the natural history and object of provisos, and the manner in which they find their way into Acts of Parliament I think your Lordships would be adopting a very dangerous and certainly unusual course if you were to import legislation from a proviso wholesale into the body of the statute . . . . ". And in the same case Lord Herschell has said: "I decline to read into any enactment words which are not to be found there and which would alter its operative C effect because of provisions to be found in any proviso." In this country, the Supreme Court in Messrs East and West Steamship Company v. Pakistan and others, in this connection, held that a "proviso" is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it. The words of a proviso are to be construed strictly and confined to the special case which its words enact; it would be wrong to construe these words as being co-extensive with those used in the purview. In the Chief Settlement Commissioner, Pakistan, Lahore v. Ch, Altaf Hussain and others, a Division Bench of this Court has held that: "A proviso is to be assumed to apply to what has been dealt with in the main provision preceding it". Similarly in Life Insurance Corporation of India v.
United Commercial Bank, Karachi and others, a Special Bench observed that "ordinarily the proviso is something subordinate to the main clause, and generally what is contained in the proviso is not to be imported by implication into the clause". In Commissioner of Income-tax v.
Messrs West Punjab Factories Ltd., Okara, a Division Bench of this Court has held that: "A proviso cannot travel beyond the scope of the main enactment".
9. On the basis of this reasoning, therefore, the second proviso to clause (b) of subsection (3) of section 13 of the Ordinance must be construed as such and no more. It has no greater purpose and it cannot be construed to enlarge upon the scope of clause (a) of subsection (3) of section 13 by providing a new and an additional ground for the ejectment of a tenant for the reason that he, his wife or dependents are owning a residential building belonging to them within the same urban area. In interpreting the second proviso to clause (b) of subsection (3) of section 13 of the Ordinance, a learned Single Judge of this Court in Muhammad Ismail Ghori v. Muhammad Ismail, has observed:-- "Having considered all the pros and cons of the matter, I am inclined to think that notwithstanding its seemingly independent and repugnant character of the proviso has nonetheless to be read subject to the principal provision contained in section 13(3)(a) and (b) and as such the question of a bona fide personal requirement has got to be satisfied as an essential pre-requisite, before the question of the tenant's ownership of residential building in the same urban area is determined.
Such an interpretation in my view would not only harmonise the two inconsistent provisions but would also be in consonance with the object of the Rent Restriction Ordinance."
I have no hesitation in respectfully adopting this interpretation.1 2 3 4 5
10. There is yet another reason in coming to this con-clusion. The second proviso to clause (b) of subsection (3) of section 13 of the Ordinance was inserted by virtue of the aforesaid amendment introduced as a result of the Bill No, 2 of 1965, moved in the West Pakistan Assembly on the 23rd of March 1963. In this Bill it was proposed that by means of amendment an altogether new section should be added after section 13 of the Ordinance as under:-- "13-A. If a landlord applies to the Controller under sec-tion 13(3)(a)(i)(a) in respect of a tenant who has a residential building in his own name or the name of his wife or his dependent children in the same urban area, the Controller shall summarily accept the application and put the landlord in possession of the building within four weeks."
In the statement of objects and reasons for this bill it was mentioned that:-- "In places like Karachi, Lahore and Rawalpindi a class of tenants has sprung up which has constructed its own residential buildings in the same urban areas where they are living as tenants.
In case of their own residential buildings, they have hired them at high rents to others while as tenants themselves they seek protection of the 1959-Ordinance against eviction. There are examples in which landlords of such tenants, in legitimate need of the premises, have been made to suffer long agony and undergo financial hardship before getting such tenants ejected under this Ordinance.The Ordinance was never supposed to give protection to such a class of unscrupulous tenants. It is, therefore, proposed that the Ordinance may be amended accordingly."
But by virtue of West Pakistan Urban Rent Restriction (Amendment) Act V of 1963, the Legislature did not accept the amendment in that form by way of a separate and independent section providing for a new and an additional ground for the ejectment of the tenants. Instead the Legislature decided to make the amendment merely as a second proviso to clause (b) of subsection (3) of section 13 of the Ordinance. As already discussed above this change in the law did not have the effect of enlarging the scope of section 13(3)(a) and (b) of the Ordinance.
11.The second proviso is altogether vague and anomalous. It speaks about the Controller directing the tenant to put the landlord in possession "within four weeks of the application" after a "summary enquiry" if he is satisfied that the tenant, his wife or dependent children have a residential building within the same urban area; a task which is well-nigh impossible under the existing circumstances.
It is not for me to question the wisdom of this piece of legislation and I need not dwell upon it.
Nonetheless, I have no hesitation in rejecting the inter-pretation placed on it by the learned counsel for the appellant.
12.For the foregoing reasons, this appeal has no force and is dismissed with costs. PLD 1958 SC (Pak.) 41 PLD 1962 Lah. 189 PLD 1962 Kar. 837 PLD 1966 Lah. 236 PLD 1969 Kar. 306