1. ' This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) read with section 2 (2) of the Military Courts (Validation of Orders) Ordinance, 1980 against the decision dated 8th November, 1977 of the President Summary Military Court 'G' ordering the appellant under M. L.
0. 20 to hand over vacant possession of House No, 254, Blocks Nos. 7 and 8, C. P. And Berar Co- operative Housing Society Ltd. Karachi to the respondent by 15th January, 1978.
2. ' The facts leading to the filing of the appeal are as under :- ' On 29th December, 1970 agreement of lease in respect of the house in question was entered into Mr. Syed Zahir Haider Abidi son of Syed Ata Hussain through his attorney Syed Hassan Ali as lessor and the appellant Haji Umer son of Haji Habib as lessee, on a monthly rent of Rs, 500 paid in advance for II months. The electricity and gas bills had to be paid by lessee who was to be responsible for any loss and damage or breakage of any fittings etc. During the tenancy due to negligence or lack of ordinary care. The lessee paid Rs, 6,000 and Rs, 5,500 as rent for 11 months in advance and Rs, 500 were to remain as security fixed deposit refundable to lessee at the time of termination of the agreement and vacation of the premises and the lessor was entitled to deduct the arrears of rent, recompense for damages caused to the premises from the said security fixed deposit. One month's time by lessee was necessary for termination of the agreement and vacating the premises and on failure of such notice the lessee was to pay one month's rent to the lessor.
3. ' It is the case of the appellant that he had been regular and punctual in the payment of rent and water charges which he used to pay to the attorney of the landlord. It is his case that he paid such rent and water charges upto August, 1977 to the attorney who however refused to accept the same for the month of September, 1977 when tendered on 13-9-1977, and it is alleged by the appellant that he was asked to pay enhanced rent at Rs, 700 p. m. Or to vacate the premises, and he refused to do so. It is further his case that on 24-9-1977 Hasan Ali attorney of the landlord with the help of certain persons tried to dispossess him but the attempt failed due help afforded by the neighbours.
4. He then filed Suit No, 1618 of 977 against the landlord and his attorney Hasan Ali in the Court of XV, Civil Judge, Karachi for permanent injunction restraining them from ejecting him from the house otherwise than in due course of law. He also filed application under Order XXXIX, rules I and 2, C. P.
5. C. For interim order and the civil Court was pleased to order maintenance status quo. He also filed Rent Case No, 3238 of 1977 in Court of First Rent Controller, Karachi for permission to deposit rent and water charges in Court and has ever since been depositing the rent in Court. He further alleges that for the first time on 13-10-1977 Hasan Ali attorney for the landlord submitted an application in the Court of XIV Civil Judge, Karachi stating that the owner Syed Zahir Haider Abidi died in May, 1975, although the attorney had been receiving rent from the appellant upto August, 1977. On the other hand, it is contended by Mr. S. Shakir Ali, the learned Advocate for the respondent, that late Mr. Syed Zahir Haider Abidi, who was an officer in Foreign Affairs Ministry posted at Islamabad had died on 26-5-1975, but since respondent who is his widow was occupying Government accommodation in Islamabad and took about two year: to wind up her affairs at Islamabad she gave notices to the appellant, one dated .4-2-1977 received by the appellant on 19-2-1977, and the other dated 2-3-1977 received by the appellant, on 10-3-1977 making the request that she desired the house leased out to him for her own use, and therefore, he should vacate the same. It is further the case on behalf of the respondent that she moved the Material Law Authorities on 12-7-1977 under M. L.O. 20 and there was a letter from the Pakistan Government stating the position about the death of her husband and her requirement for accommodation, ' The appellant received notice from the Summary Military Court 'G' Headquarters Martial Law Administrator Zone C, requiring him to appear on 7-11-1978 in connection with application under M.
6. L.O. 20 filed by the respondent. Again, it is the case of the appellant that no copy of the application filed by the respondent was supplied with the notice. He however prepared his written statement on the legal aspects of the case stating inter alia the legal ground that Constitutional Petitions in regard to M. L.O. 20 were pending before 'the High Court, and the Martial Law Authorities had stayed further proceedings in such cases. It was further prayed by him that proceedings on the application be stayed till decision of the Constitutional petitions. He had also pointed out that a Civil Suit was pending in the civil Court in which the aforesaid Court had been pleased to grant order of maintenance of statusquo. The appellant reserved his further right to be heard after he received copy of the application.
7. ' The appellant appeared before the Summary Military Court on 7-11-1977 but the case was not reached and he was directed to attend again on 8-11-1977. On that date again the appellant requested for copy of the application but the request was rejected and no copy was supplied to him. His further request that his written statement be placed on the record was also refused and so also his request for putting questions in cross-examination to the respondent. It is further his case that a copy of cyclostyled order was delivered to him to vacate the house on 15.1-1978. He filed Revision Application before the Martial Law Administrator, Zone C, regarding which at least to his knowledge no action was taken. He then filed Constitutional Petition No, 803/1977 in this Court challenging the impugned order which was admitted to regular hearing and operation of the impugned order was stayed. The Constitutional Petition is still pending. The appellant filed the instant appeal within one month of the enforcement of the Military Courts (Validation of Orders)
8. Ordinance, 1980.
9. ' The main contentions raised on behalf of the appellant are as under :-
(1) That the procedure adopted by the Summary Military Court is violate of clause 5 (d) and (b) of M. L.O. 20 in that the Military Court did not hold any enquiry in the case and did not examine any oral or documentary evidence. The contention is based on the allegation that the appellant was not even apprised of the contents of the application, that his written statement was not accepted and that no questions in cross-examination for the respondent were allowed.
(2) That since the appellant was not in the circumstances stated given proper hearing the order is violate of the principle of natural justice that 'nobody should be condemned unheard'.
10. ' Under Martial Law Order No, 20 (clause 4) on receipt of Pakistan, the Martial Law Administrator or any person authorised by him in that behalf after scrutiny, if considered necessary, refers the same to the Military Court for disposal. Clause 5 of the M. L.
0. Reads as under :-
(a) The Military Court shall enquire into the case and for the purpose issue notices to the parties concerned for appearing before it on the date mentioned in such notices.
(b) The Military Court may examine such/oral or documentary evidence in support of the petition or any defence of the opposite party as may be considered necessary.
11. ' It is argued that clause 5 of M. L.O. 20 reproduced above provides for the holding of enquiry even though the landlord is a widow and requires the building for her own use mentioned in clause (2) of M. L.. 20 and the aforesaid enquiry is such as is impliedly presumed in section 14 of the Ordinance.
12. Mr. A. S. Qureshi, the learned counsel for the appellant, has relied upon the decision of this Court in Ibrahim Soomro v. Brig (Retd.) S. H.O. Gardezi (1) for the second contention that the principle of natural justice. Applies to cases filed under section 14 of the Ordinance by virtue of section 19(4) of the same.
13. ' It is true that under section 2 (2) of the Military Courts (Validation of Orders) Ordinance, 1980 an order passed by a Military Court at any time on or after the 16th day of August, 1977 in any proceedings under Martial Law Order No,20 shall be deemed to have been passed under the Ordinance and any person aggrieved by such order can within 30 days of the commencement of the Ordinance preferred appeal to the. High Court as has been done in the instant case. However, the provision with regard to deeming such order to have been passed under the Ordinance cannot be pressed into service for the further contention that provisions of section 19 (4) of the Ordinance are applicable with regard to the procedure to be adopted by the Military Courts. The procedure to be adopted is contained in clauses 4 and 5 of M. L. O. No, 20 which have been reproduced above.
14. All that clause 5 requires is that the Military Court shall enquire into the case and examine such oral or documentary evidence in support of the petition or in defence as may be considered necessary.
15. It is, therefore, quite clear that the Military Courts are not bound to observe any particular procedure. The provisions of the Civil Procedure Code with regard to filing of written statement, therefore, do not apply to such proceedings and incidentally there can be no cavil to a Military Court considering the letter of the Government with regard to death of one of their officers to be sufficient evidence to show that the respondent was a widow who required the building for her own use. It may here be stated that, although the appellant has pleaded ignorance about the death of the original landlord upto a particular time ; even the Memo. Of Appeal in the Court describes the respondent as widow. For the purpose of enquiry as, mentioned in clause 5 of M. L.
0. 20 it is quite evident from the record that notice was issued to the appellant for hearing on 7-11- 1977, and the hearing was postponed to the next day when the impugned order was passed. It is, therefore, argued on behalf of the respondent that the Military Court had given full opportunity to the appellant to state his case specially in view of the fact that the notice of hearing fixed on 7-11- 1977 was issued on 29-10-1977. It has further been argued that the reference to Summary Military Court may mean permissibility of action without giving proper opportunity to defend. In Mumtazuddin Ahmed
(1) PLD 1981 Kar. 622 ' v. Mst. Salahuddin Jehan Begum (1) the connotation of the word 'summary' was discussed and it was observed as under :- "A perusal of the above-quoted definitions of the other terms referred to hereinabove indicate that the word 'summary' in a fit case may mean that an action can be taken even without giving proper opportunity to defend. However, in view of the language "used in section 14 read with section 21, I have already held hereinabove that an application under section 14 an enquiry is to be held, but the nature of such enquiry will vary from case to case."
16. In the instant case, if the Military Court was satisfied with regard to the respondent being a widow requiring accommodation as the accommodations provided to her in Islamabad had been withdrawn by the Government, it cannot be said that the decision was in violation of clause 5 of M.
17. L.O. 20.
18. ' As already stated, even in the Memo. Of Appeal respondent has been shown as a widow, and there is no assertion of facts to prove that her entitlement to possession is untrue. The impugned order directing the giving of vacant possession to the respondent, therefore, is not illegal or without jurisdiction, and the appeal is consequently dismissed ; but under the circumstances there is no order as to costs. In view of the decision rejecting the appeal the orders of stay against ejectment are hereby withdrawn, and the appellant is directed to hand over vacant possession of the premises to the respondent within two months of the date of this order.
(1) PLD 1981 Kar. 529