' This is an appeal against the judgment passed by the Ilnd Additional District Judge, Karachi, on 5- 7-1979 whereby he dismissed the appeal filed against the order of the Rent Controller.
2. The facts which give rise to the instant IInd Appeal are briefly that an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 was filed by the appellants/applicants on 29-8-1972. Appellants were the landlords of the building known as Tatawalla Building on Plot No, S. R. 3-6, New Challi, Karachi and the respondents namely Nadri Bakery and Store were the tenant of the appellants in the said premises paying a monthly rent of Rs, 220. The allegation was that the respondents had sublet the parts of premises to one Panwalla and to one bookseller without the permission of the landlord and hence he was liable to be ejected.
3. In the written statement it is admitted that the respondents are tenants. However, the fact of subletting is emphatically denied. Further, in the written statement the motive for the rent application was to uproot the respondents to give the shop on a huge Pugri.
4. The learned Rent Controller framed the following issues :- "(1) Whether the opponents have sublet the portion of the shop in his possession to a Panwalla and a Bookseller since 1948 and if so its effect ?
(2) Whether the appellants had been accepting the rent of the premises in question from the tenants since the very start of the tenancy knowing fully well that the Panwalla and the Bookseller were already occupying the said portion of the premises ?
(3) Whether West Pakistan Urban Rent Restriction Ordinance, 1959 is not applicable to this case as the Panwalla and Bookseller have been occupying the said portion before 1959?
(4) What should the order be?
5. The learned Rent Controller held that it was not proved if the respondents had sublet the portions to Panwalla and to Bookseller. The applicants/landlords by implication had waived the fact of subletting if at all it was so. However, the learned Additional District Judge held that the West Pakistan Urban Rent Restriction Ordinance, 1959 does not apply, therefore, eviction would be improper.
6. The appeal was argued by Mr. S. Azizul Hassan Advocate on behalf of the appellant and by Mr. S. Inayat Ali Advocate on behalf of the respondents. Three witnesses namely Abdullah the Bookseller, Sultan Panwalla and one Muhammad Ahsan were examined by the appellants while the respondents examined himself and one Lal Muhammad. According to the evidence on record the respondent Ghulam Raza was a tenant in the premises in question since 1948. In the first instance he had a restaurant but subsequently he changed the restaurants in a bakery shop. He has produced receipts showing the rents paid in the years 1949 and 1952. Even Abdullah the bookseller has admitted that he had the shop since about 24 years back and that it was a wooden cabin constructed by the Irani respondent. It is necessary to take up the issue framed whether the West Pakistan Urban Rent Restriction Ordinance, 1959 had the retrospective effect and that in the application under section 13 of the said Ordinance the appeilants could be ejected. Before the enactment of the West Pakistan Urban Rent Restriction Act, 1957 there was no single exhaustive statute containing the law of rent restriction and eviction of tenants of uniform application in the West Pakistan. In 1959, the Governor of West Pakistan with the previous instructions of the President promulgated the West Pakistan Urban Rent Restriction Ordinance, 1959. This Ordinance VI of 1959 repealed the following local enactments :-
(i) Baluchistan Rent Control Regulation, 1945.
(ii) North-West Frontier Province House Control Act, 1946.
(iii) Bahawalpur State Urban Rent Restriction Act, 1947.
(iv) Sind Rent Restriction Act, 1952.
' To the above list of repealed enactments may be added Karachi Rent Restriction Act, 1953, which has been repealed by section 5 of the Ordinance XXXVIII of 1962 in its application to areas other than the Cantonments. The West Pakistan Urban Rent Restriction Ordinance, 1959, has been made applicable to Karachi, with the exception of cantonment areas by section 3(2) of Ordinance XXX VIII of 1962. Since then changes have been made from time to time by minor amendments which have been incorporated in the appropriate sections.
7. By virtue of section 1(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, subsection
(5) of section 13 and section 19 of the said Ordinance came into force at once and the remaining provisions of the Ordinance deemed to have taken effect on or from the date of the expiry of the West Pakistan Urban Rent Restriction Act of 1957. The Act of 1957 expired on 15th of January, 1958. To this extent the Ordinance is retrospective in operation. This Ordinance has retrospective effect only to the extent up to 15th January, 1958.
8. No statute should be construed so as to have a retrospective operation, unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. Even in construing a section, which is to a certain extent retrospective, the maxim must be borne in mind as applicable whenever the line is reached at which the words of the section cease to be plain.
9. Now coming to the evidence on record, the respondents were inducted to the tenancy by paying monthly rent of Rs, 220 as early as in 1948 or 1947. Not written rent deed is produced either by the appellant or by the respondents creating a tenancy in favour of the respondents and it is also not averred in the evidence led by the appellants as to when the tenancy in favour of the respondents was created. Of course Abdullah the bookseller and Sultan the Pauwalla have both averred that the tenancy is as old as in 1947 or 1948. It has come in evidence that the charges accepted by the respondents were those of using water and electricity by both the Panwalla and the bookseller. The wooden cabin was constructed by the respondents and was at the footsteps of the bakery and one does not know whether the Pan shop was originally in existence at the time when the Tatawalla Building was owned by the predecessors of the present appellant. On facts there is no reason to believe that the act of subletting has occasioned in view of no documentary evidence produced in this behalf. It is possible that the hotel or the bakery, whatever it was in 1948, was leased out on rent including the Pan shop and for that matter even the bookstall. The subletting was made a ground for eviction in the West Pakistan Urban Rent Restriction Ordinance, 1959 and earlier it was hardly any ground for eviction. The respective agreements inter alia between the appellants and the respondents are got to be proved or even the a agreements between the respondents and the bookseller as well as Panwalla are got to be proved and such evidence has not been brought on record. Therefore, the two Courts below have rejected the allegation of subletting. In my view section 13 of the West Pakistan Urbant Ren Restriction Ordi nance, 1959 has no retrospective effect to include in the instant case. I con sider the findings of the two Courts below to be correct and there is n scope for interfering with the concurrent findings of the two Courts below.
10. It was held in PLD 1955 FC 38 that concurrent finding of facts by lower Courts, even though it may be erroneous, provided evidence is considered by Court cannot be upset by High Court in Second Appeal. It was further held in this authority that the High Court has no jurisdiction to entertain a second Appeal on the ground of an erroneous finding of fact, however gross and inexcusable error may seem to be unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I am also referred to 1979 CLC 757 in which it was held that concurrent finding of the facts of the two tribunals below supported by evidence on record need not be interfered with.
11. As regards the arguments of the waiver or acquiescence by the landlord appellant it may be pointed out that,the present appellant is not the original owner of Tatawalla Building and the original owners are those who had transferred by way of sale or gift to the present appellant. There are two sets of owners of Tatawalla Building and the original owners who first inducted the respondent into tenancy of the premises might have waived or acquiesced the shop. However, this point is not proved and the acquiescence and the waiver is not considered in this appeal. In view of concurrent findings given by the two Courts below. I would not interfere with the impugned judgment of Additional District Judge. In the result appeal is dismissed with no order as to costs.