MUHAMMAD FAHEEM WALI J.- Through the instant constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have called into question the legality and validity of the orders dated 24.09.2022 and 02.09.2023, passed respectively by the learned Rent Controller-I, Peshawar, and the learned Additional District Judge-IV, Peshawar.
2. Succinctly stated, the respondents/ petitioners instituted Rent Petition No.123/RC under Section 13 of the Rent Restriction Ordinance, 1959 ("1959 Ordinance"), seeking ejectment of the petitioners/respondents from the building in use as Khyber College of Science Model Branch, situated at Jamrud Road, opposite to the Board of Intermediate and Secondary Education (BISE), Peshawar. During the pendency of the proceedings, the learned Rent Controller vide tentative rent order dated 27.06.2020 directed the petitioners to deposit monthly rent at the rate of Rs.225,000/- with the Civil Nazir of the Court before the 15th day of each month starting from July 2020. However, when application filed by respondents for the withdrawal of the deposited rent, the Civil Nazir submitted report that the petitioners on eight occasions deposited the rent on the 15th day of each month instead of depositing before the 15th day of each month as directed in the tentative rent order. Thereafter, counsel for the appellant filed an application under section 13(6) of the 1959 Ordinance for striking off the defense of the respondents due to default in payment of tentative rent. After hearing arguments, the learned Rent Controller, vide order dated 24.09.2022, struck off the defence of the petitioners and directed them to vacate the rented premises within 90 days by clearing all outstanding dues, subject to adjustment of deposited rent and advance security.
Feeling aggrieved, the petitioners preferred an appeal before the learned District Court, but the Appellate Court vide judgment & order dated 02.09.2023 dismissed the appeal by affirming order of the learned Rent Controller. Having remained unsuccessful before the appellate forum, the petitioners have invoked constitutional jurisdiction of this Court by filing instant writ petition with the following prayer; "It is, therefore, most humbly prayed that on acceptance of instant Writ Petition, impugned Orders/ Judgments/ Decrees dated: 24.09.2022 (of the learned Rent Controller-I, Peshawar) & 02.09.2023 (of the learned Additional District Judge-IV, Peshawar) may be set aside and the learned trial court may be directed to decide Eviction Petition No.123/RC, dated 08.12.2018 of the 1st Party / Respondents No.1 to 4, on merits, after providing opportunity to both the parties to prove their respective stance in accordance with law/rules governing the subject, so as to secure the ends of justice and equity. Any other relief, not specifically prayed for and deemed appropriate to this Hon'ble Court, in circumstances of the case may also be granted in favour of Petitioners."
3. Arguments heard and with valuable assistance of learned counsel for the parties record is perused.
4. Before dilating upon other merits of the case, the petitioner has filed CM No.489-P/2025 wherein he moved application for amendment/ addition of certain facts mostly enumerated in CM No.1966/2022, filed earlier in the subject petition, whereby the petitioner wants to add certain facts in order to bring the case in line with sub Article 1-A of the Constitution of Pakistan through 26th amendment 2022, whereby it is necessary that all grounds and relief claimed in the prayer clause are to be specifically mentioned, otherwise a party would not be entitled for the same. The request of the petitioner seems genuine. Since the facts have already been mentioned in relevant document attached vide CM No.1966/2024, the CM No.489- P/2025 is allowed, the grounds mentioned in the CM No.1966-P/2924 shall be treated and read as part & parcel of the main writ petition.
5. Reverting back to the merits of the case, it evinces from the record that the respondents No.1 & 2 had filed ejectment petition against the petitioners under section 13 of the 1959 Ordinance for the ejectment of the respondents from the building comprising a college by the name of Khyber College of Science situated at main Jamroud Road, opposite BISE, Peshawar. During the course of proceedings the appellants through order dated 27.06.2020 were directed to deposit outstanding rent amount @ Rs.225,000/- with the Civil Nazir, before 15th day of each month, starting from the month of July, 2020. During the course of proceedings, it transpired that on eight occasions the present petitioner/tenant had deposited due rent on the 15th day of each month instead of depositing the same before the 15th day of each month, and thus committed default in deposits of rent on the aforesaid occasions, warranting eviction against them under the mandatory provisions of section 13 (6) of the 1959 Ordinance. The learned Rent Controller while exercising powers under the ibid section of law has struck off defence of the petitioner by ordering his eviction with further direction to the present petitioner to hand over the rented premises to the respondent from the date of passing of the order by clearing all the outstanding rent till vacation of the rented premises subject to adjustment of deposited rent with Civil Nazir and further adjustment of the amount paid as advance security by the petitioner. This order of the Rent Controller has duly been affirmed by the Appellate Court providing a cause for filing the instant writ petition.
6. From the foregoing narration it is quite evident that the petitioner has been evicted from the suit premises on the basis of purported default made in deposit of rent on 08 occasions in defiance of the directions of the Rent Controller. On all such occasions rent was required to be deposited on or before 14th day of each month, but in the case in hand, monthly deposit of rent has been deposited in each month of default, on 15th day of the month, which is beyond the period prescribed for deposit of the rent as specified in section 13(6) of the 1959 Ordinance, that require deposit of monthly rent due from the tenant before the 15th day of each month. In order to resolve the controversy it is expedient to reproduce sub section 6 of the section 13 of the 1959 Ordinance.
"Section 13. Eviction of tenant
(1) .....
(2) ....
(3) ....
(4) ....
(5) .....
(6) "In proceeding under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the "[fifteenth day of each month] the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. [The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant.]"
(7) ....
(8) ....
Section 13 (6) of the 1959 Ordinance makes it mandatory to enforce the consequences and to strike off the defense of the respondent/tenant along with putting the landlord in possession of the rented premises, without taking further proceeding in the case, whenever a default is committed in regular deposit of monthly rent before the 15th day of each month, in the monthly rent due from him. Accordingly, on a passing look, apparently the respondent is guilty of committing default in depositing the rent due as he was required to deposit the monthly rent before 15th day of each month which provides an allowance for the deposit to be made till the 14th day of the month, but not later than that, as has been mentioned, in unequivocal terms, in the referred sub-section of law. This proposition does not require any further deep and intricate interpretation, in general terms and normal circumstances, unless, peculiar facts of a case requires exceptional treatment.
7. Learned counsel for the petitioner pointed out that the deposit of monthly rent due, under dispute, have been respectively made on 15.10.2020, 15.12.2020, 15.01.2021, 15.02.2021, 15.03.2021, 15.04.2021, 15.06.2021 and 15.07.2021. He further stated that during those days the whole world was under the grip of Covid-19 -- a pandemic disease -- that was wide spread across the country during the days when the aforesaid payments of rent were due for deposit in each corresponding month. During the referred period, social distancing was the order of the day and normal daily routine was disturbed to prevent the spread of infectious diseases. Given the situation, the province of Khyber Pakhtunkhwa in order to provide for prevention and control of the infectious diseases, and to implement and enforce mechanism to control the spread of such diseases and to provide relief to the people, in the emergency situation arising due to spread of such infectious diseases and for matters connected therewith and ancillary thereto, passed an Act under the name and title of 'The Khyber Pakhtunkhwa Epidemic Control & Emergency Relief Act, 2020' ("Act of 2020") whereby certain laws relating to public health and disaster management, in order to bring them at par in combating the aforesaid epidemic and other infectious diseases, were changed by bringing about necessary amendments. To further elaborate, section 3 of the Act of 2020 provides; "3. Serious and imminent infection threat declaration.--- (1) The Secretary may, with the approval of the Chief Minister, by notification in the official Gazette, declare that the incidence or transmission of an infectious diseases poses a serious and imminent threat to public health in the whole or any part of the Khyber Pakhtunkhwa.
(2) The Secretary may also, with the approval of Chief Minister, specify the period which shall be deemed as emergency period made under this section
(3) The Secretary may, with the approval of the Chief Minister, by notification in the official Gazette, revoke a declaration made under this section.
(4) Before seeking approvals under sub-sections (1) and (3), the Secretary shall have due regard to any advice from- (a) the Director General, Health Services Khyber Pakhtunkhwa; and (b) not less than two eminent epidemiologists, appointed by the Chief Minister, for rendering such advice.
(5) Any declaration of an incidence or transmission of an infectious disease already made before the commencement of this Act, under any law relating to public health and disaster management shall be deemed to be a declaration made under this Act and unless provided otherwise in the declaration itself, it shall continue to remain effective, until specifically withdrawn by the Secretary after approval of the Chief Minister."
Section 3 of the Act empowers Secretary Health of the province, but after obtaining approval of the Chief Minister and by making notification in the official gazette in this regard, to declare that the incidence or transmission of infectious diseases causes a serious and imminent effect to the public health, in the whole or any part of, the Khyber Pakhtunkhwa, and specify a period during which such emergency shall remain invoke, which shall continue in the field, unless, the same has been specifically revoked by another declaration made by the Secretary Health, with the approval of the Chief Minister, through a notification in the official gazette.
8. Sub-section 5 of section 3 of the Act of 2020 indemnify any declaration of an incidence or transmission of an infectious disease already made before commencement of this Act, under any law, relating to Public health and disaster management, by pronouncing the same to have been deemed to be a declaration made under this Act, and unless provided otherwise in the declaration itself, it shall continue to remain effective until specifically withdrawn by the secretary, after approval of the Chief Minister.
9. The next important provision of the Act of 2020 is section 26, which is reproduced below for ready reference: "26. General Relief.--- Notwithstanding anything contained in any other law, for the time being in force, for carrying out the purposes of this Act, pursuant to a declaration under section 3, the following reliefs shall be provided for a period of three (03) months from the date of promulgation of this Act and for such subsequent period or periods that the Government may determine from time to time: (a)--- (b)--- (c)--- (d)---
(e) no tenant shall be evicted under the rent restriction laws by the landlord on account of default in paym ent of monthly rent: Provided that the same shall not apply in cases where the landlord is a widow, minor orphan, disabled person or a senior citizen as defined in the Khyber Pakhtunkhwa Senior Citizens Act, 2014 (Khyber Pakhtunkhwa Act No. XXXV of 2014)."
For carrying out the purpose of this Act, Section 26 of the Act of 2020 provides certain reliefs for a period of 03 month from the date of promulgation of the Act, and for such subsequent period or periods that the government may determine, from time to time, pursuant to the declaration made under section 3, wherein in clause (e) it has been specifically mentioned that no tenant shall be evicted by the landlord on account of default in payment of monthly rent.
10. Section 32 of the Act of 2020 in quite explicit terms provides whereby any law, rule, regulation, order, contract or otherwise, any act or proceeding is directed or required to be done or undertaken in any court etc by any person in the province, those proceedings shall be considered to be done or undertaken in due time, if it has been done or undertaken within 30 working days after the period prescribed for the purpose in any enactment, and the time limit to do or to undertake such proceeding shall be deemed to have been extended by such period. Section 32 of the Act is reproduced hereunder; "32. Extension of period to perform duties, etc.--- Where, by any law, rule, regulation, order, contract or otherwise, any act or proceeding is directed or required to be done or undertaken in any court or office or any legal, regulatory, contractual or other obligation, by any person in the Province, that act, proceeding or obligation shall be considered as done or undertaken in due time if it is done or undertaken within thirty working days after the prescribed period, and the period to do or undertake such act, proceeding or obligation shall be deemed to be extended by such period."
Similarly, Section 40 of the Act of 2020 provides: "40. Over-riding effect.--- The provisions of this Act shall be in addition to and not in derogation of any existing law for the time being in force and in case of any conflict the provisions of this Act shall have an overriding effect."
11. Conjoint reading of the above referred sections of law, in line with the entire scheme of the Act of 2020, will manifest that section 26 clause (e) imposes a ban on eviction of a tenant under the Rent Restriction Laws by the landlord on account of default in payment of monthly rent. It is a non obstante clause, introduced with the prefatory language "Notwithstanding anything contained in any other law for the time being in force..." By virtue of this non obstante provision, the legislature signaled that Section 26(e) would override any contrary provisions in other statutes, including the 1959 Ordinance. A non-obstante clause is designed to ensure that the provision it introduces takes precedence over any other existing laws that might contradict it. It is a settled principle of statutory interpretation that a later statute can impliedly repeal or override an earlier one to the extent of any inconsistency, especially when the later statute contains a non obstante (overriding) clause. This principle is encapsulated in the Latin maxim lex posterior derogat legi priori, meaning "the later law abrogates the earlier law." In the case of Messrs Raibv Industries Karachi v.
Federation Of Pakistan (2023 SCMR 1407) the Hon'ble Supreme Court held that: "11...The dominant rationale of interpretation of any legislative instrument is to bring to light the intention of the legislature and the foremost sense of duty of the Courts is to catch on the same by reference to the language used. The expression "Nonobstante" is a Latin terminology which connotes 'notwithstanding anything contained'. This turn of phrase, for all intents and purposes invests powers in the legislature to set down any provision which may have an overriding effect on any other legal provision under the same law or any other laws, being a legislative apparatus and method of conferring overriding effect over the law or provisions that qualifies such clause or section of law. A non-obstante clause is commonly put into operation to signify that the provision should outweigh regardless of anything to the contrary. It is a well settled elucidation of law that a taxing statute should be construed strictly, even if the literal interpretation results in some hardship or inconvenience. The Courts cannot put in words to broaden the scope and sphere of law to such an extent that is not covered under the statute. The conspectus of the numerous dictums laid down by the superior Courts demonstrates that the non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect."
Likewise, in the case of Muhammad Mohsin Ghuman v. Government Of Punlab (2013 SCMR 85), the Apex Court observed as: "13...The proper way to construe a non obstante clause is first to ascertain the meaning of the enacting part on a fair construction of its words. The meaning of the enacting part which is so ascertained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another provision one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clauses."
While elucidating the meaning of the non-obstante clause, the Apex Court in Syed Mushahid Shah v. Federal Investment Agency (2017 SCMR 1218) held as below: "9... a non obstante clause which is defined as "A phrase used in documents to preclude any interpretation contrary to the stated object or purpose." 'Notwithstanding' means despite, in spite of or regardless of something. In this respect Justice G. P. Singh has aptly explained: "A clause beginning with 'notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force', is sometimes appended to a section in the beginning, with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non obstante clause."
The Court further went on to explain and clarify the proposition while referring different case laws from Indian jurisdiction and observed that: "12...In Kumaon Motor Owners' Union Ltd. and another v. The State of Uttar Pradesh (AIR 1966 SC 785 = [1966] 2 SCR 122) the Indian Supreme Court compared the provisions of the Motor Vehicles Act, 1939 and the Defence of India Act, 1962, particularly Sections 68-B and 43 thereof respectively, and held that the latter would prevail over the former. In the judgment of Sarwan Singh v. Kasturi Lal (AIR 1977 SC 265), the Indian Supreme Court relied upon Shri Ram Narain's case (supra) and observed as under: "When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration."
On the same proposition, the worthy High Court of Sindh in industrial Relations Advisors Association v. Federation Of Pakistan (2010 PLC 359) held: "55...That is why the Article starts with the words "notwithstanding omission of Concurrent Legislative List". Word `notwithstanding' means 'despite' or "in spite of'. A non obstante clause is used in a provision to indicate that the provision shall prevail despite anything to the contrary in any provision and it operates so as to set aside as no longer valid anything contained in the relevant existing provision which is inconsonant with what followed the word 'notwithstanding."
In the present case, we have both factors present: the Act of 2020 is later in time than that of 1959 Ordinance, and it contains an unmistakable overriding clause. In effect, Section 26(e) operates as a temporary partial repeal or suspension of the rent laws concerning eviction for non-payment.
Any rent default that occurred in the protected period cannot be used as a ground for eviction, notwithstanding the contrary mandate of the 1959 Ordinance.
12. The situation at hand is a textbook case for the application of the maxim generalia specialibus non derogant (general things do not derogate from special things). The 1959 Ordinance is a general law governing landlord-tenant relations and applicable in normal times; the Act of 2020, on the other hand, is a special law addressing a specific extraordinary situation (the COVID-19 emergency) and providing tailored relief during that period. Accordingly, the special law must prevail within its domain. Stated differently, lex specialis derogat legi generali -- a special law overrides the general law where the two cover the same field. In the case of Sui Northern Gas Pipelines Ltd. (SNGPL), Islamabad v. Messrs S.K. Pvt. Limited (2025 SCMR 570), the Apex Court held: "8...The well-settled rule of statutory interpretation is that where a special law is enacted, it overrides general law. The provisions of the special law exclude the application of general law, subject to the context in which the special law has been enacted to deal with specific issues.
Where a special law establishes a proper mechanism and procedure to challenge certain actions, recourse to general law through collateral proceedings may not be permissible. The Latin maxim "generalia specialibus non derogant" means "things general do not derogate from things special".
This is a routine tenet of statutory interpretation, emphasizing that where there is a conflict between general and special law, the special law prevails. Similarly, the Latin maxims "ejusdem generis" and "expressio unius est exclusio alterius" exemplify that when two rules or laws exist, one general and one specific, the specific rule takes precedence over the general rule."
13. Similarly, section 32 of the Act of 2020 provides a further cushion that during the pandemic period, if any proceeding, act or obligation is required to be done or undertaken in any court, then, that act, proceedings or obligation shall be considered to have been done or undertaken in due time, if it is done or undertaken within 30 working days after the prescribed period. Meaning thereby that anything which is required by the law to be done within specified period then if it is performed within 35 days, after the due date, it shall be deemed to have been done within the specified period without entailing any penal consequences. This provision, in unambiguous terms, extends all legal deadlines falling within the emergency period by an additional 30 working days.
The phrase "shall be deemed to be extended" makes it a deeming provision; it creates a legal fiction that the original deadline itself is lengthened by the specified period. In the case of Pak Leather Crafts Limited v. Al-Baraka Bank Pakistan Limited (2022 SCMR 1868), the Hon' ble Supreme Court held: "18...The principles to interpret deeming provisions in a statute have been settled by this Court in its various pronouncements while interpreting deeming provisions in a statute by holding that the Court is bound to ascertain the limits, purpose and object for which the legislature has created the fiction by adopting deeming provision...."
14. It is also instructive to consider the purpose and spirit of the epidemic relief legislation. The said Pandemic Relief Act was a beneficial piece of legislation, grounded in social welfare and the state's constitutional duty to protect its citizens in an emergency. The overarching principle of salus populi suprema lex esto (the welfare of the people is the supreme law) underpinned these extraordinary measures. The intent was to ensure that individuals and businesses facing upheavals (due to lockdowns, economic shutdowns, and health crises) would not suffer legal detriment for failing to fulfill obligations in the usual manner. In this light, the rigid requirement of rent deposit by a fixed date each month was justifiably relaxed. The Court must give effect to this intent by interpreting and applying the law in a manner that advances the remedial purpose of the Act. As a canon of construction, remedial statutes are to be liberally construed to suppress the mischief and advance the remedy. Here, the "mischief' was the potential eviction of tenants who were unable to pay or deposit rent timely due to pandemic disruptions; the "remedy" provided was a bar on evictions for rent default and an extension of time for compliance.
This Court is duty-bound to uphold that remedy in letter and spirit.
15. Scrutinizing the facts of present case within the four corners of the above referred legal parameter, it would not be out of place to mention that vide notification dated 01.06.2020, in exercise of the powers conferred under section 3 of the ibid Act, the Secretary Health has imposed emergency in the province for a period of 90 days commencing from 12th of May 2020, which shall continue till the 10th of August 2020, in further continuation of the earlier arrangements made and taken by the Government with regard to the control of Covid-19 pandemic. This notification was further extended for a period of 50 days from 116 August 2020 till 30th September 2020 vide notification dated 13.08.2020. Similarly, vide notification dated 29.09.2020 the period of emergency was extended from 1.1 October, 2020 till 30th November, 2020 for a further period of 60 days. As by that time things have not been back to normal, therefore, through notification dated 30.11.2020 the period of emergency was enlarged for a duration of 04 months starting from 01.12.2020 till 31.03.2021 and for further period of 90 days from 01.04.2021 till 30.06.2021, vide notification dated 22.03.2021.
Same state of affairs continued by virtue of periodical extensions of the emergency period that remained in place until 30th September 2022 through a final notification dated 20.07.2022.
16. Comparing the period during which the emergency was imposed in juxtaposition to the period of default in payment of rent committed by the petitioner, it transpires that the emergency remained in field from 12th May 2020 till 30. September 2022, while as referred to before, in the preceding para, the respective requisite deposits of the monthly rent due was to be made between the month of October 2020 and July 2021, that squarely fell within the emergency period so extended from time to time; therefore, as per section 32 of the Act, although the petitioner was required to deposit rent due, under normal circumstances, before 15th day of each month, but under the ibid Act, the legislature has extended the time for deposit of rent by 30 working days in addition to the time already provided under the law, which in other words comes down to 35 normal days by excluding the non working days i.e. (Sundays).
17. As a corollary to the above, it becomes obvious that the deposit made by the petitioner/tenant which was supposed to have been made on or before the 14d. day of each month, by advent of law, in view of the Act of 2020, is to be considered to have been validly made, within further 30 working days, thus bringing deposit of monthly rent, even after the prescribed period under section 13(6) of the 1959 Ordinance, as to be within the extended time period provided for performance of such act/obligation under the deeming provisions of the Act of 2020. The deposit of rent, although made after the due date prescribed by the 1959 Ordinance, but the same shall not entail any penal consequences in the form of striking off defence of the defaulter for the reason that the monthly rent of the disputed months has been deposited within 30 working days, so provided by the latest amendment; therefore, such deposit shall be deemed to have been made within the original prescribed period of limitation so provided under the law
18. In view of the aforesaid discussion, this petition is allowed, the judgments of both the learned fora below are set aside, and the case is remanded to the learned Rent Controller to proceed with the trial from the stage where the proceedings have been stopped. Parties are left to bear their own Cost.