' The respondent is a tenant of Auqaf Department, the appellant, in respect of shop premises bearing No.32, Masjid Ghausia, Landhi, Karachi, on a monthly rent of Rs.45. On 18-11-1978, the respondent filed an application under section 13 (2) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called "the 1959 Ordinance") in the Court of IVth Rent Controller, Karachi, seeking permission to deposit the monthly rent in Court. The Controller by the order, dated 19-11-1978, allowed the respondent to deposit the rent with the Nazir of the Court with notice to the appellant.
The order seems to be inconsistent for while directing notice it also disposes of the application. The full order reads as follows: "Admit, register, let the rent be deposited with the Nazir of this Court with notice to other side. Cost.
The deposit will not absolve the appellant the effect of default already committed, nor bind the landlord to accept the deposit as sufficient tender as to arrears/or rate of rent.
' Application stands disposed of accordingly."
2. Thereafter, on 20-5-1979, the appellant without receiving any notice from the Controller filed objections to the application claiming that the Controller had no jurisdiction to entertain the application as the properties of Auqaf Department were exempted vide Notification No.Judl. 1-17 (1)/60, dated 4-5-1960. It may be convenient, if I quote hereinbelow the notification, which reads as follows:
(1) "Waqf properties exempted from the provisions of Rent Restriction Ordinance.
' Notification No. Judl. 1-17 (1)/60.--In exercise of the powers conferred by section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to direct that all the provisions of the said Ordinance shall not apply to the buildings and rented lands, the administration, control, management and maintenance of which is taken over assumed by the Chief Administrator of Auqaf, West Pakistan Waqf Properties Ordinance, 1959.
(2) Exemption of Waqf properties from the purview of West Pakistan Urban Rent Restriction Ordinance, 1959.(Memorandum No. 5 (10) Auqaf-60, dated 8th June, 1960 from Chief Administrator of Auqaf to Zonal Administrators of Auqaf."
3. After hearing the learned counsel for the appellant the Controller dismissed the application of the respondent by the order, dated 9-9-1979, holding that under the aforequoted notification he had no jurisdiction as the property was exempted from operation of the provisions of the 1959 Ordinance.
4. Against this order the respondent filed an appeal with the Vlth Additional District Judge, Karachi, who allowed the same by the order, dated 5-3-1980, and remanded the case for the reason that the order, dated 9-9-1979, was passed behind the back of the appellant and directed the Controller to dispose of the same after service of the notice and giving the respondent an opportunity of filing objections and hearing him.
5. On remand of the case the Controller heard the parties and passed a fresh order on 8-4-1982, allowing the original application of the respondent holding that the Controller had jurisdiction as the 1959 Ordinance had since been repealed and no notification under section 3 of the Sind Rented Premises Ordinance, 1979 (hereinafter called "the 1979 Ordinance") exempting the properties of the appellant had been issued. It may be convenient for future reference if the last paragraph of the order, dated 8-4-1982, is reproduced hereinbelow: "The counsel for the opponent in support of his contention that this Court has no jurisdiction to entertain application against the property of the Auqaf Department has referred me to the notification-Judi. 1-17 (1)/60, according to which all the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 shall not apply to the buildings and rented lands, the administration, control, management and maintenance of which is taken over and assumed by the Chief Administrator of Auqaf West Pakistan, under section 6 of the West Pakistan Waqf Properties Ordinance, 1959. And whereas the counsel for the applicant has argued that since the Sind Urban Rent Restriction Ordinance, 1959 will now not come in their way. He has further contended that this application is to be decided under the provisions of the Sind Rented Premises Ordinance, 1979. I agree with the contention of the learned counsel of the applicant for the reason that since the Sind Urban Rent Restriction Ordinance, 1959 has since been repealed under which the aforesaid notification has been issued and as no such notification has been issued under the Sind Rented Premises ordinance, 1979 the Controller has got jurisdiction to entertain this application. I therefore, allow this application with no order as to costs."
6. From this order the appellant has preferred this appeal.
7. I have heard Mr. S.S. Hamid, learned counsel for the appellant and Mr.S.Inayat Ali, learned counsel for the respondent.
8. It is contended by Mr. S.S. Hamid that at the time when the application under section 13 (2) of the 1959 Ordinance was filed, the notification issued under section 3 of 1959 Ordinance and quoted hereinabove was occupying the field and therefore, the property was exempted from the operation of the provisions of 1959 Ordinance and consequently the Controller had no jurisdiction to entertain the application .
9. In my view the contention has no merits as it appears that in raising the contention the learned counsel for the appellant has not taken into consideration the provisions of section 27 of the 1979 Ordinance which concern the repeal of the 1959 Ordinance. Under subsection (2) of section 27 of 1979 Ordinance all appeals and all such cases as were fixed for arguments or judgment which had been filed under the 1959 Ordinance were directed notwithstanding the repeal to be disposed of in accordance with the provisions of 1959 Ordinance while all other cases instituted under the 1959 Ordinance which were immediately before the commencement of 1979 Ordinance were pending before a Controller were ordered to be disposed of in accordance with the provisions of 1979 Ordinance. It may be mentioned that it is further provided therein that any proceedings taken or orders made in such cases as mentioned in subsection (3) of section 27 of the 1979 Ordinance should for all purposes have effect as the proceedings taken or orders passed under the 1979 Ordinance. It will be useful if I reproduce herein below the relevant provisions of section 27 of the 1979 Ordinance, for ready reference which read as follows: "27--Repeal.--(1) The Sind Urban Rent Restriction Ordinance, 1959 is hereby repealed
(2) All appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance.
(3) All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall notwithstanding any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance.
(4).................................................................................
10. Accordingly, the Controller, in view of the provisions of subsection (3) of section 27 of the 1979 Ordinance, was right in holding, that he had jurisdiction as the 1959 Ordinance under which the notification was issued had since been repealed and no notification under 1979 Ordinance had been issued.
11. In my opinion too the notification issued under section 3 of the 1959 Ordinance was not saved under any provisions of section 27 of the Ordinance and since no notification under section 3 of the 1979 Ordinance was issued (as none has been brought to my notice), the Controller had jurisdiction to entertain the application. In my view after remand, the case had to be decided in accordance with the provisions of subsection (3) ibid after service of the notice and giving the respondent an opportunity of filing objection and hearing him as directed by the appellate Court.
12. It is however, submitted by Mr. S.S.Hamid that the provisions of subsection (3) of section 27 of 1979 Ordinance would not apply but the provisions of subsection (2) would apply as according to him the case was fixed for arguments and not for hearing. This contention is also not correct for when the Ordinance of 1979 was promulgated and enforced on 21-11-1979, only the appeal of the 'respondent was pending and was disposed of in accordance with the provisions of subsection (2) of section 27 of 1979 Ordinance.
13. It is then urged by Mr. S.S.Hamid that by virtue of the provisions of section 3 subsection (1) of the 1979 Ordinance, the provisions thereof would not apply to the property as the same is owned or is requisitioned by the Provincial Government. But the submission is misconceived for Waqf property could not be owned by a Provincial Government as according to the Muslim Jurists the term 'Wakf' literally means detention. The legal meaning of 'Wald' according to Imam Abu Hanifa, is the detention of specific thing in the ownership of the Wakif or appropriator, and the devoting or appropriating of its profits or usufruct "in charity on the poor or other good objects." According to the two disciples o the Imams namely, Abu Yusuf and Muhammad, Wakf signifies the extinction of the appropriator's ownership in the thing dedicated and the detention of the thing is the implied ownership of Allah, in such a manner that its profits may revert to or be applied "for the benefit o mankind" as a Wakf extinguishes the right of the Wakif or dedicato and transfers ownership to Allah as stated by D.F. Mullah in his entitled 'Principles of Mahomedan Law', 14th Edition, Page 181. Th learned author has placed reliance on Millie, pages 557-558 and liedaya pages 231, 234.
14. Even otherwise, the Waqf property is defined under section 2 clause (e) of the Sind Waqf Properties Ordinance, 1979 as follows: "(e) "Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants."
15. As regards the claim that property has been requisitioned by the Waqf Department, it may be stated that the learned counsel has not produced any notification under which the property was requisitioned nor has he referred to any provisions of the Sind. Waqf Property Ordinance, 1979, under which it could be requisitioned. He however, submitted that under section 6 of the West Pakistan Waqf Property Ordinance, 1961, the Chief Administrator Auqaf West Pakistan, was empowered to takeover and assume the administration, control, management and maintenance of Waqf property. This argument is also of no avail for the requisition of a property by and on behalf of the Government and taking over and assuming the administration, control, management and maintenance of a Waqf property are two different matters. I am of the view that under section 3 of the 1979 Ordinance the word "requisitioned" followed by the words "under any law" refers to the requisition of the property under the provisions of the West Pakistan Requisition of Land (Continuous) Act, 1958, or the West Pakistan Requisition of Immovable Property (Temporary.
Powers) Act, 1965, as adopted in Sind by the Sind Adaptation of Laws Order, 1975. Mr. S.S. Hamid has not pointed out any other law under which the property in question has been or could be requisitioned and I am clear in my mind that the property could not have been requisitioned under section 6 of the West Pakistan Waqf Property Ordinance, 1961, or under section 7 of the Sind Waqf Property Ordinance, 1979, to which reference was made by Mr. S.S.Hamid.
16. Accordingly, the order passed by the Controller is unexception able. I therefore, dismiss the appeal, but under the circumstances of the case leave the parties to bear their own costs.
17. For the aforesaid reasons I dismiss also F.R.A. Nos. 564 to 573 of 1982 as in all these appeals the orders impugned are identical and same points have been raised.