' This appeal is directed against the order, dated 25-5-1982 passed by the learned VIII Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 2299 of 1979, striking off the appellant's defence on the ground of non-compliance of the tentative rent order passed under section 16 of the Sind Rented Premises Ordinance (XVII of 1979).
2. The brief facts leading to the filing of the above appeal are that the respondent filed the above rent case on the ground of default and personal requirement on 30-4-1979. The above application was resisted by the present appellants. While the above case was pending a Notification, dated 29-7-1980 gazetted in the Sind Government Gazette, dated 9-10-1980 under section 3 of the Sind Rented Premises Ordinance, 1979 in supercession of all orders issued previously, was issued by the Provincial Government exempting premises belonging to Councils constituted under the Sind Local Government Ordinance, 1979 and all the premises of Colleges and Schools taken over under Martial Law Regulation No. 118 of 1972, from the application of the provisions of the aforesaid Ordinance. It seems that after the issuance of the above Notification the present appellants filed application before the Rent Controller stating therein that in view of the above Notification the learned Rent Controller had no jurisdiction as the premises in question were used for school. But the above application was dismissed by order, dated 4-2-1982 on the ground that the above Notification was not retrospective. After that the learned Rent Controller passed an order, dated 25-5-1982 under section 16 of the Ordinance for tentative rent. There was default of the compliance of the above order and therefore the learned Rent Controller upon an application filed by the respondent passed the above order, dated 25-5-1982 for striking off the appellant's defence. The appellants being aggrieved by the above order have filed the present appeal.
3. In support of the above appeal, Mr. Abul Khair Ansari learned counsel for the appellants has vehemently urged that upon issuance of the above Notification, dated 29-7-1980, exempting inter alia the premises occupied by colleges and schools taken over under M.L.R. 118 of 1972, the learned Rent Controller had ceased to have jurisdiction in the matter. It has, therefore, been urged that the tentative rent order was without jurisdiction and non-compliance of the same is of no legal effect and is of no consequence.
' On the other hand Mr. M.M. Baig learned counsel for the respondent has vehemently urged that the above Notification could not have been given retrospective effect and could not have effected the pending proceedings.
4. In order to appreciate the above contention of the learned counsel for the parties, it may be pertinent to refer to the following cases:--
(i) Mst. Khadija Merchant v. The K.M.C. through Mayor 1983 CLC 535, in which Fakhruddin H. Shaikh, J., held that the Notification being procedural be deemed to affect pending proceedings as no party has any vested right in particular remedy conferred by statute. It may be observed that the above case was heard by the learned Single Judge on 20-9-1982.
(ii) Mst. Minhaj-un-Nisa v. Deputy Commissioner/District Magistrate, Karachi and another 1983 CLC 2228. In the above case a Division Bench of this Court comprising of Nasir Aslam Zahid and Fakhruddin H. Shaikh, JJ, (the judgment of which was delivered by Fakhruddin H. Shaikh, J., and which was heard on 31-8-1982), held that the Notification was not retrospective and could not render ineffective ejectment order passed more than three years prior to the issue of Notification.
(iii) Province of Sind through Secretary, Education, Sind Secretariat, Karachi and 2 others v. Nisar Ahmed 1983 CLC 1905, in which I have relied upon the above judgment of Fakhruddin H. Shaikh, J reported in 1983 CLC 535 and held that upon issuance of the above Notification, dated 29-7-1980 the learned Rent Controller had ceased to have jurisdiction over the subject matter of the rent application and therefore the final order was not sustainable in law.
(iv) Salim Akhtar v. The Government of Sind through the Secretary Education, Karachi and another PLD 1984 Kar.
358. In the above case the question again arose whether notification had affected the pending proceedings. Naimuddin, J after reviewing the case-law on the subject held the above notification was not retrospective and observed as follows: "In the light of the above observation I have to consider what is the effect of the notification? Does it effect the procedure or changes the forum only or does it effect the fights of the parties ? If I examine the provisions of the Ordinance, 1959 or 1979 Ordinance, it would be obvious that it has conferred certain rights on a landlord and certain rights on a tenant and similarly it imposes certain obligations on them. For example a landlord is given a right to evict a tenant in case he makes default in payment of rent, without the. permission of the landlord uses the premises for the purpose other than that for which it was let out or commits acts which impair the material value or utility of the premises let out to him. Similarly a tenant could not be evicted except on the grounds mentioned in the relevant section of the Ordinance. These rights have not been conferred on such persons by or under any other law including the Transfer of Property Act, wherein the rights and obligations of lessor or lessee are governed by the provisions of sections 105 to 117. Now, therefore, if a tenant has committed an act whereby a landlord has become entitled to evict a tenant and a landlord has filed a case he has acquired a vested or substantive right. It will therefore, not be a matter of procedure. Further it will also not be a matter of change of forum for he cannot proceed with the case before any other Court or forum on the same grounds or on the same cause of action.
' Here I will refer to the following observations of Hamoodur Rehman, J., in Ghulam Muhammad Khan Lundkhor v. Safdar Ali, PLD 1967 SC 530, which show that 1959 Ordinance conferred certain rights and obligations on landlord and tenant.
' Having regard to the language of this subsection we find it difficult to accept that the legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequences of a default has used mandatory words to direct the Rent Controller, to enforce the consequences. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purported not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the persons seeking the privilege must show that he has strictly complied with those conditions. Unless ,those conditions are strictly fulfilled the privilege will not be available for the other party provided of his rights under the law (vide Maxwell page 285, 11th Edition).
' The right, therefore, has had become vested right."
' It may be observed that though the case of the above D.B. Judgment reported in 1983 CLC 2228 was heard on 31-8-1982 i.e. about three weeks prior to the hearing of the case reported in above 1983 CLC 535, which was heard on 20-9-1982, the above D.B. Judgment was not brought to the notice of the learned Judge, nor the above judgment was brought to my notice when I had decided the above case.
' My learned brother Naimuddin, J. in his above judgment after reviewing the relevant case-law has taken the view that inter alia the commission of default by a tenant in terms of the Rent Ordinance creates a vested right in a landlord to seek ejectment of the defaulting tenant. The above view seems to be more in consonance with law than the view taken by me in the case reported in 1983 CLC 535 and it is also in accord with the aforesaid D.B. Judgment of this Court in the case reported in 1983 CLC 2228. I would, therefore, follow the above D.B. Judgment and the judgment of Naimuddin, J. , and hold that the above notification did not affect the present proceedings in which one of the grounds taken was default. In this view of the matter the tentative rent order was an order with jurisdiction and since there was non-compliance of the above order, the order of the striking off defence seems to be in consonance with law.
' I, therefore, dismiss the above with no order as to costs. However, since the subject-matter is a school, I would allow one year's period from today on the condition that the appellants shall continue to deposit rent in terms of the Rent Controller's order. In case of three concurrent defaults the respondent shall be at liberty to file execution application before the expiry of the above period of one year. Furthermore, in case the appellants fail to hand over the vacant possession on the expiry of the above period of one year, the Rent Controller shall issue a Writ of Ejectment without further notice to the appellants.