' This order will dispose of S. A.
0. 245 and 246 of 1966.
2. The only point in these cases is whether notification No, Judl. 17(7)/59 issued on 6th July, 1962 could affect pending proceedings before the Rent Controller for ejectment of tenants under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 instituted before the issuance of the notification.
3. The Lahore Municipal Corporation filed two petitions for ejectment of the respondent in the two appeals, from two shops situated in Akbari Mandi. Lahore on the 11th October, 1961 on the 6th July, 1962 the above notification was issued under the provisions of section 3 of the Ordinance. Section 3 authorises the Government to direct by notification published in the Gazette that all or any of the provisions of the Ordinance shall not apply to any particular building. Under this notification buildings belonging to a local body administering an Urban area which are used as shops and are of commercial nature were exempted from the operation of the Ordinance.
4. The learned Rent Controller directed the ejectment of other respondent by his order, dated 22nd March, 1965. This order was, however set aside by the order of Mr. Muhammad Hassan Sindher, Additional District Judge, dated 9th June, 1966 on the ground that in above notification although issued subsequently barred the jurisdiction of the Rent Controller.
5. The learned counsel for the appellant argued that boycotting upon this notification the learned Additional District Judge has given a retrospective effect to it which cannot be given as held by the Supreme Court in the Burmah Oil Company Limited v. The Trustees for the Port of Chittagong (I), Sh.
Rehmatullah v. The Deputy Settlement Commissioner Centre 'A' Karachi and others (2) and Sh.
Fazal Ahmad v. Raja Ziaullah Khan and another (3). He also relied upon Sardar Mohinder Singh v.
Arur Singh and others (4) in which a notification issued under section 8 of the Pre-emption Act was not held to apply to pending suits for the possession of property by pre-emption.
The learned counsel for the respondent on the other hand placed his reliance upon Mrs. Keays Byrne v. M. Obaidullah Khan (5).
6 . In my view the contentions of the learned counsel for the appellant have considerable force. It is established proposition of law that a notification cannot have any retrospective effect unless there are provisions in the parent Act which authorise giving such an effect on subordinate legislation.
The effect of this notification can at most be repeal the provisions of section 13 viz-a-viz the shops owned by the Corporation of the City of Lahore which are used for commercial purposes. Even if it had been so, it would not have affected the pending proceedings in view of section 4 of the West Pakistan General Clauses Act, 1956 which provides that where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears the repeal shall not effect inter alia any legal proceedings already pending. The same view was take
(I) PLD 1961 SC 452 (2) PLD 1963 SC 633
(3) PLD 1964 SC 494 (4) AIR 1922 Lah. 344
(5) PLD 1961 (W. P.) Lab. 256 ' in Sardar Mohinder Singh v. Arur Singh and others. There a notification was issued by the Punjab Government under section 8(2) of the Punjab Pre-emption Act during the pendency of a suit for pre-emption. Under the notification it was declared that no right of pre-emption shall exist in respect of agricultural land and village immovable property within an area in which the plots in that suit were admittedly compromised. It was held that the notification could not apply or have any effect pending suits. It was further observed that a notification cannot have a greater effect than a repealing Act for the purpose of causing the dismissal of all pending suits to enforce pre- existing rights of pre-emption. I am. There-1B fore, of the view that the notification issued in 1962 could not effect the' proceeding before the Rent Controller.
7. The petitions were based on ground of default. It has never been the case of the respondent that he had paid this rent. On the other hand he had denied the relationship of landlord and tenant between the parties. In regard to the plea of default it was urged in the written statement that "the respondent occupying the property of his own right, the question of payment of rent to the petitioner does not arise".
' The Rent Controller answered the issue of landlord and tenant in favour of the appellant. The finding on this issue was not contested by the respondent before the Additional District Judge. But on the basis of documents Exh. P. 3 and Exh. P. 6 the appellate Court upheld the finding of the Rent Controller. The learned counsel for the respondent, however, contested the decision of the learned Rent Controller on that question. I have gone through the record. It is proved by the unimpeachable documentary evidence that the respondent is a tenant of the shops in dispute, and he had taken the same on lease from the Municipal Corporation. The learned counsel for the respondent states that the question is not whether the respondent had taken these shops on lease from the appellant because this fact is not denied by the respondent. He contends that the case of the respondent is that he had provided Malba for the construction of the shops to the Municipal Corporation but the Municipal Corporation had neither paid the price of Malba nor had adjusted that price towards the rent of these shops. This point has not been taken in the written statement. As stated above, the only point taken by the respondent was that there was no relationship of landlord and tenant between the parties. In view of the admission that the relationship of landlord and tenant does exist and in view of the documentary evidence on record find that the issue was correctly decided by the learned Rent Controller and the respondent was well advised not to contest the finding before the learned Additional District Judge.
8. In view of these findings the respondent is liable to be ejected from the shops in dispute. I, therefore, allow these appeals with costs.Set aside the orders of the learned Additional District Judge and restore the orders of the Rent Controller.