The dispute relates to the fair rent of a shop situate in Rail Bazar, Lyallpur. The appellant has been a tenant in the shop since before 1950. He executed a rent note in favour of the landlords on 1-4-1948 and it was agreed that the tenant will pay Rs, 200 per month as rent of the shop. The rent was enhanced to Rs, 250 on 1-10-1953 and then to Rs, 312.50 on 1-10-1956. In 1957 again dispute arose between the parties and the matter was referred to arbitration. An award was made that the tenant will pay Rs, 600 per month as rent and continue in possession of the shop for a period of 20 years. The award is Exh. R. 2 and registered lease deed, which was executed in 1958, is Exh. R.
4. The appellant commenced payment at the agreed rate from 5-3-1958 and continued so doing right up to 14-5-1959. It would be appropriate to mention at this stage that when the parties agreed to refer the matter to arbitration the West Pakistan Urban Rent Restriction Ordinance was not in force. It was promulgated on 23rd February 1959.
2. On 25-11-1963, the tenant moved the Rent Controller, Lyalipur, for fixation of fair rent of the shop. It was contended that the landlords could not charge more than Rs, 200 as rent. The Rent Controller after enquiry fixed the fair rent of the shop at Rs, 300 per month, vide his order dated 25th March 1964.
3. The landlords feeling aggrieved by this order went up in appeal before the District Judge who by his order dated 8-9-1965 allowed the appeal and came to the conclusion that Rs, 600 per month was fair rent of the shop in dispute. Dissatisfied with the finding the tenant has approached this Court under section 15 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959).
4. Challenge was thrown by Ch. Aziz Ahmad Bajwa learned counsel for the respondents to the vires of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the ground that by virtue of clause
(5) of the Presidential Order 1 of 1958 the Governor of the Province was competent only to promulgate an Ordinance on the conditions laid down in Article 102 of 1956- Constitution, which provided that an Ordinance so promulgated shall be laid before the Provincial Assembly and shall cease to operate at the expiration of six weeks from the next meeting of the Assembly. He maintained that the Assembly constituted under 1962-Constitution had to approve the law under Article 79(2) of the said Constitution, failing which the Ordinance had to come to an end after the expiry of 42 days of the first meeting of the Assembly of the Province. In support of his submission he relied upon a judgment of the Supreme Court reported as Badrul Hague Khan v. The Election Tribunal, Dacca and another. At page 723, it was held that "it seems plain that, the answer must be in the negative, for both in substance as well as appearance the new National Assembly performs very much the same function in the Constitution of 1962, as the proposed National Assembly under the 1956-Constitution." There is no doubt that the Legislature created under the 1962-Constitution in West Pakistan Province had to perform somewhat similar functions in the field of legislation like an Assembly functioning under the Constitution of 1956. The provision of approval or lapse of an Ordinance under both the Constitutions, no doubt, is somewhat similar and the Legislature created under the 1962-Constitution in the Province of West Pakistan is deemed to be a successor Assembly in the Province. The Ordinance in question was promulgated during the period of first Martial Law in Pakistan and admittedly at that time there was no Legislature. The conditions of promulgation of the Ordinance too were no doubt similar to those mentioned in Article 102 of 1956- Constitution, but the Legislation, for failure of its approval by the subsequent Legislature does not go out of the Statute book, because protection was given to it by virtue of Article 225 of 1962- Constitution. The Ordinance was an existing law at the time promulgation of 1962-Constitution and it had to continue in force until altered, repealed or amended by the appropriate Legislature i,e, the Legislative Assembly of West Pakistan. The approval of the Legislature, as provided in clause (2) of Article 79 of the Constitution of 1962 would, therefore, be unnecessary and the Ordinance cannot be considered to be invalid for non-approval by the Assembly. Though I am clear in my mind in this view and no authority for such a proposition is needed, but I am grateful to Ch. Aziz Ahmad Bajwa who placed before me a case, which supports the above view, but goes against the submission made by him. Abu Farida Khan v.
The Province of East Pakistan. The Ordinance in question, therefore, is a valid piece of Legislation.
5. Another preliminary objection was raised by the respondents that the finding of fixation of fair rent, being a finding of fact, cannot be disturbed in second appeal. This objection will be dealt with at a subsequent stage.
6. The first submission raised by Syed Munir Hussain learned counsel for the appellant was that the Rent Controller was competent to fix fair rent under section 4 of the West Pakistan Urban Rent Restriction Ordinance. He relied on section 6(b) of the Ordinance and argued that any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void. At best he submitted that the award made by the arbitrators culminated into an agreement between the parties, which they acted upon before the promulgation of the Ordinance but by virtue c tithe authority vested in the Rent Controller for fixation of fair rent, the agreement cannot be pressed into service. He maintained that the fair rent fixed by the Rent Controller was appropriate as he took into consideration the entire evidence produced before him. The house tax assessment for the year 1947-48 (Exh. P. 2) fixed the rent of the shop in dispute at Rs, 100 per month while the house tax for the year 1954-55 (Exh. P. 3) shows the rent of the shop as Rs, 200 p.m. The property tax assessm ent (Exh. P. 1/A) for the year 1956-57 was Rs, 250 per month. The learned Rent Controller has fixed fair rent of the shop at Rs, 300 per month taking into consideration the criteria laid down in section 4 of the Ordinance. It is futile to go into the question of validity of the award and its effect on the powers of the Rent Controller for admittedly the Rent Controller has the power to determine1 2 fair rent under section 4 of the Ordinance even if there is an agreement. The award though having been acted upon by a contract between the parties, such a contract has become invalid on account of the promulgation of the West Pakistan Urban Rent Restriction Ordinance. If an authority is needed E. A. Evans v. Muhammad Ashraf is referred. Learned counsel for the appellant frankly conceded that if the consideration of the agreement could not be given effect to, the contract has become incapable of performance.
7. The next question for consideration would be as to whether the finding of the lower Appellate Court is legal and can be disturbed in second appeal. No doubt the learned lower appellate Court has discussed the question of validity of an award and its binding nature vis-a-vis the parties, but in disposing of the appeal this is not the only consideration which weighed with the learned District Judge in coming to the conclusion, of the fixation of fair rent at Rs, 600. He held that :- "In any case the shop in question being centrally situated in a commercial area the rent of Rs, 600 p.m. Cannot reasonably be held to be unfair, more particularly when the lessees are to remain in possession of the rented premises for a period of 20 years. Such a long stay for a tenant places him in an advantageous position vis-a-vis his landlord. Viewed either way I allow this appeal and set aside the impugned order of the Rent Controller."
8. The conclusion arrived at by the learned District Judge seems to have been reached after taking into consideration the entire evidence in the case. Section 4 of the Ordinance provides that the Controller shall take into consideration the rent of the same or a similar accommodation in similar circumstances prevailing in the locality during the 12 months prior to the 1st of January 1950. This does not deprive the Controller from taking into consideration other factors in fixing the fair rent.
There is no prohibition in the law for not taking into consideration any other factor, such as the one of a period of long stay of 20 years in the shop and its location in the most prosperous commercial area in the city of Lyallpur. In coming to the conclusion of fixing the rent of the shop in dispute at Rs, 600 p.m. which though is similar to the award made, the rent cannot be considered to be derogatory to the principles laid down in section 4 of the Ordinance. An appeal under section 15 of the Ordinance is to be disposed of as an appeal under section 100, C. P. C. Time and again this Court as well as the former Federal Court and the Supreme Court in this country have laid down that second appeal is not competent on a question of finding of fact if the finding is based on consideration of entire evidence. D Inference drawn from evidence remains an inference of fact unless it is manifestly unjust, is based on no evidence or is concluded from inadmissible evidence.
Nadir Shah v. Lal Shah and another, Sh. Muhammad Ikhlas and others v. Muhammad Ismail and Abdul Majid and others v. Khalil Ahmad are referred. It cannot be said that the learned District Judge has transgressed any of the conditions mentioned above in coming to the conclusion which he did. At best it could be argued that his finding is erroneous, but that would not be a case for interference in second appeal. I am not persuaded to disagree with the finding of fact arrived at by the learned lower appellate Court in fixing the fair rent even on merits.
9. For the foregoing reasons I find no merit in this appeal which is dismissed with costs. PLD 1963 SC 704 PLD 1964 Dacca 473 PLD 1964 SC 536 PLD 1954 Lah. 447 PLD 1963 SC 466 PLD 1955 FC 38 3 4 5 6 1 2 3 4 5 6