1. This is a first rent appeal against the order dated 15th March, 1980 passed by the learned 2nd Rent Controller Karachi in Rent Case No. 2047/78.
2. The brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid ejectment application inter alia on the grounds of default and personal requirement. In the above rent application a tentative rent order was passed on 14th October, 1979 directing the present appellant to deposit the arrears of rent amounting to Rs. 8,050 before 12th January, 1980 at Rs. 350 per month. It seems that the late West Pakistan Urban Rent Restriction Ordinance, 1959 was repealed by subsection (1) to section 27 of the Sind Rented Premises Ordinance 1979 (hereinafter referred to as the new Ordinance) on 21st November, 1979, which did not contain any general saving clause in respect of the pending cases. However, there was a saving clause, namely, subsection (2) in respect of the pending appeals and the cases, which were fixed for arguments or judgment before the Rent Controller. In order to save all the other pending cases by the Sind Rented Premises (Amendment) Ordinance 2 of 1980 (gazetted on 21st January, 1980) sub--section
(3) was added, which reads as follows :----- "Subsection (3).-All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance."
3. The above amendment was made retrospective in effect, namely, with effect from 21st November, 1979, when the new Ordinance was promulgated.
4. It is an admitted position that on 12th January, 1980 i.e. The day on or before the appellant was supposed to deposit the arrears of rent, the above saving clause was not in force. However, the learned Rent Controller upon an application of the respondent under section 16(2) of the new Ordinance ordered the striking of defence of the appellant on the ground of default of the aforesaid tentative rent order dated 14th October, 1979. The appellant being aggrieved by the above order has filed the present appeal.
2. (a) In support of the above appeal, it has been urged by Mr. Nawaz Jajja, learned counsel for the appellant that as on 12th January, 1980 there was no saving clause in the new Ordinance the tentative rent order stood expired/lapsed. His further submission was that in any case the orders which were saved by the above amendment of subsection (3) did not include the tentative tent orders. In support of his above submission, be has relied upon the case of Aurangzeb v. Nakhshi Mahmood Ali (PLD 1961 Lah. 619).
5. Whereas it has been urged by Mr. Ghayyur Kureshi, learned counsel for the respondent that the above tentative rent enacted with retrospective effect, namely, from the date of promulgation of the new Ordnance. His further submission was that in any case it was for the appellant to move an application before the learned Rent Controller for fixation of a fresh date in place of 12th January, 1980.
(b) Reverting to the above contentions of the learned counsel for the parties, it may be pertinent to refer to the aforesaid 1961 Lahore case, in which a Division Bench had considered the effect of the expiry of the then West Pakistan Urban Rent Restriction Act (IX of 1957) and the effect of the promulgation of the date of West Pakistan Urban Rent Restriction Ordinance, 1959. In the above case the facts were that the landlord had filed an application under section 13 of the then West Pakistan Rent Restriction Act, 1957, for ejectment on the ground of default in payment of rent. The learned Rent Controller passed a tentative rent order on 8th January, 1958 ordering the tenant to deposit a sum of Rs. 420 by 24th March, 1958. It was also ordered that the tenant was to continue to deposit monthly rent by 5th of each succeeding month. The aforesaid Act had expired on 15th January, 1958 and the proceedings pending before the Rent Controller came to an end.
6. Consequently, the application was consigned to the record room on 31st March, 1958. However, on 23rd March, 1959 the West Pakistan Urban Rent Restriction Ordinance, 1959 came into force.
7. Thereupon, the landlord moved an application on 17th March, 1959 under section 22 of the Ordinance for revival of the proceeding. It may be pertinent to observe that section 22 of the said Ordinance provided that if on the expiry of the Act of 1957 an application had been consigned to the record room, it shall be restored on an application made within 60 days from the date of the publication of the Ordinance of 1959 and on restoration of the proceedings, the same shall start from the stage at which they were at the time of the consignment. In the above cited case the tenant did not deposit the arrears of rent as was ordered by 24th March, 1958 i.e. On the date when the Act of 1957 had already expired. It was urged by the landlord that the effect of the revival of the proceeding under section 22 of the Ordinance was restrospective in effect in as much as it validated the tentative rent order and that the tenant's defence was liable to be struck of. Though the learned single Judge agreed with the above contention of the landlord, but a Division Bench of the Lahore High Court set aside the above judgment of the learned single Judge and allowed the appeal and held is applicable to the present case on all fours except them the present case the amendment in section 27 was made on 21st January, 1980 with retrospective effect, namely from the date of the promulgation of the new Ordinance. According to the learned counsel for the respondent, the effect of the above retrospective amendment was that the above tentative rent order in law remained in force even on 12th January, 19801. Strictly speaking, this may be so.
8. However, the fact remained that on 12th January, 1980 the tentative rent order was not saved by the Ordinance the above order was saved by the aforesaid amendment enacted on 21st January.
9. 1981 retrospectively as pointed cut hereinabove. In my view the tact should have been taken into consideration, by the learned Rent Controller, which in my view was sufficient ruse for fixing a fresh date for depositing of the above arrears of rent, It seems that if the above amendment would not have been brought in, there would not have been any default of the above tentative rent orders as it would have stood lapsed.
10. It was further contended by Mr. Ghayyur Kureshi, learned counsel for the respondent that the respondent has moved an application on 30th January, 1980 under section 16(2) of the new Ordinance, and that inspite of the filing of the above application, the appellant had failed and neglected to deposit the arrears amount. The above contention is not tenable. One cannot over- look that the original tentative rent order was not in force on the day when the arrears of rent were to be deposited and there was no fresh order of the Rent Controller for fixing the time for depositing of the same.
3. In view of the above discussion, the above appeal is allowed and the order under appeal is set aside, but there will be no order as to costs. The learned Rent Controller shall proceed with the rent application on merits and will decide the same within 6 months frown the date of the receipt of the intimation.