' The facts arc that Ch. Muhammad Din respondent, in the year 1977 filed an ejectment petition against the petitioner for his eviction from the shop in dispute.This litigation ended in a compromise as a result whereof the petitioner enhanced the rent yearwise for the period from 1st December, 1978 to 30th November, 1985. One 8th March, 1982, the respondent again brought an ejectment petition on the ground that he required the shop in good faith for the use of his son. The petitioner contested the petition and on the rectitude of the proviso to section 13(3) of the Rent Restriction Ordinance questioned its maintainability. It was pleaded that the tenancy being for a specified period the respondent was not entitled to file the ejectment petition before the expiry thereof. This controversy is reflected by issue No,2. The Rent Controller by his judgment dated 9-10- 1984 answered this issue in favour of the petitioner and dismissed the ejectment petition. The respondent went in appeal which was accepted by an Additional District Judge and case remanded to the Rent Controller on 16-3-1985. The petitioner then invoked the writ jurisdiction of this Court. His Writ petition No,1277/1985 was accepted on 25-1-1986 and the case sent back to the learned District Judge, Lahore to render a decision afresh on issue No,2,with the further direction that if this issue was decided in favour of the respondent the case would be sent back to the Rent Controller to record a finding on the issue regarding bonafide personal need of the landlord. As a result of the post-remand hearing the learned District Judge accepted the respondent's appeal by his judgment dated 9-3-1986. He held that the tenancy was for a specified period which ended on 30-11-85, but the cause of action matured during the pendency of the ejectment petition which could not he dismissed for the reason that at the time of the institution, the period of tenancy had not expired. The petitioner has now come to this Court again under Article 199 of the Constitution.
2. I have heard the learned counsel for the parties. Both of them largely concentrated on the maturity of cause of action during the pendency of the litigation. Some case law for and against their respective contentions, was also cited but these precedents do not relate to the proviso in question. It is, therefore, idle to burden this judgment with the discussion of these decisions. The learned counsel for the petitioner, however, referred to the following paragraph from Maxwell on Interpretation of Statutes, 12th Edition, page 328:-- "Where the act or thing required by the Statute is a condition precedent to the jurisdiction of a tribunal, compliance cannot he dispensed with and, if it be impossible the jurisdiction fails. It would not he competent to a Court to dispense with what the legislature has made the indispensable foundation of its jurisdiction."
' It was argued that when the tenancy is for a specified period, the expiry thereof is the condition precedent for invoking the jurisdiction of the Rent Controller for eviction of the tenant on the ground of bona fide personal need and as in the instant case this condition was not satisfied the Rent Controller acted without jurisdiction in entertaining the respondent's ejectment petition. In other words the maturity of cause of action during the pendency of the ejectment petition could not cure the initial defect. I disagree with the learned counsel. There is no cavil with the proposition of law enunciated in the paragraph cited by him but it has no application to the case in hand. The reason for this disagreement can be gathered from the succeeding paragraphs of this judgment.
3. The sole point involved in this case is the interpretation of the proviso aforesaid which is reproduced below: "Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period.'
A question arises whether this provision is mandatory or merely directory. It has often been said that if a provision is mandatory an act done in breach thereof will be invalid but if it is directory the act will be valid if the enactment is complied with substantially. In other words mandatory provision must be obeyed exactly and its non-compliance is not curable. It is not easy to determine whether a provision is mandatory or merely directory. The study of the case law on the subject does not lead to formulation of any universal rule, except that it depends upon the intention of the legislature. The language alone, often is-not decisive and regard must be had to the context, subject-matter, and the object of the statutory provision and the consequences which would follow from construing it one way or another. With this test in view, it seems to me that under the Rent Restriction Ordinance, the Rent Controller's Tribunal has been established to determine expeditiously controversies arising between the landlord and tenant, and to restrict the increase of rent of certain premises. Right to evict a tenant on the ground of bona fide personal need is conferred on the landlord under section 13(3) of the Ordinance. However, when the tenancy is for a fixed period, by virtue of the proviso the enforcement of this right is deferred till the expiry of such period. Admittedly, in this case the cause of action matured during the pendency of the litigation.
Despite maturity of cause of action, and fulfilment of the condition precedent for commencement of ejectment proceedings namely, the expiry of the specified period of tenancy, during pendency of the ejectment petition, I see no good ground to hold the initial defect as uncurable; compel the parties to have another round of litigation and thus thwart the object of the Statute. If the object of the Statute is defeated by treating the proviso as mandatory it must be construed as directory.
4. In ascertaining the nature of the Statute another test 'usually applied is that when consequences of nullification on default to comply with a provision are stated in the Statute itself, such provision should be interpreted as mandatory. Reference in this connection may be made to the following observations appearing in Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134:-- " As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."
' Obviously the non-compliance with the proviso is not visited by any penalty.
5. In this behalf another usual mode of ascertaining the intention of the legislature is, that ordinarily when a command is clothed in a negative form, it is I to be treated as a legislative device to make the Statute imperative. But this rule is not without exception. Section 256 of the Govt. Of India Act, 1935 couched in negative words and in a prohibitory form was construed by the Federal Court in Biswa nath Khemka v. Emperor AIR 1945 FC- 67 as directory. Direction relating to solemnization of marriages between Presbyterians and Catholics, though using negative words but not followed by consequence that the marriage in breach of those directions, shall be invalid was in Catterall v.
Sweetman 1845 9 Jur 951(954) construed as directory. (See Crais on Statute Law 6th Edition,page 263). This decision was followed by the Supreme Court of India in the case of Lila Gopta v. Laxmi Narain AIR 1978 SC 135 and a marriage contracted in violation of the proviso to section 15 of Hindue Marriage Act, 1955, worded in prohibitory language, was not treated as void. These precedents, which can be multiplied seemingly, lead to the result that general inconvenience resulting from holding a provision as imperative outweighs the effect of the negative words and use of such words is subservient to the object intended to be achieved by a particular provision. This would further persuade me to hold that the proviso is not imperative in character and the maturity of right of action during the pendency of I the ejectment proceedings, overrides the negative language employed therein.
6. It is noteworthy that prohibitory command conveyed by the proviso is primarily directed towards the landlord and creates a clog on his right to launch ejectment proceedings against his tenant, continuance of whose tenancy for a specified period he himself consented. The jurisdiction of the Rent Controller to entertain the ejectment petition, violative of the proviso is not expressly barred.
The institution of the ejectment petition by the respondent giving rise to the instant writ petition, therefore, did not suffer from any jurisdictional defect. The only person intended to be benefited by the proviso is the tenant in whose favour the lease for a specified period exists and no consideration of public policy is involved. He can renounce the benefit of law and waive off the default of filing the application during the continuance of the period of lease. This would also whittle down the asperity of prohibition conveyed by the proviso.
7. The proviso fell for consideration in the case of Sh. Fazal Muhammad v. Sheikh Muhammad Shafi 1983 CLC 261, and this appears to be the only reported judgment on the matter in issue. At least I could not lay hand on other decision. The learned Single Judge who dealt with this case took the view.
" It states that where the tenancy is for a specified period agreed upon between the landlord and the tenant the landlord shall not be entitled to apply before the expiry of the period of lease. I am afraid I cannot accept the contention of the learned counsel. No doubt on the day when respondent No, 1 moved the application for eviction the plea of personal need was not available to him but then the period of lease expired while the proceedings were still pending before the Rent Controller. The.... Even if respondent No, 1 had not taken the said plea in the application as originally filed he could have moved the Rent Controller for the amendment of his application to incorporate the same as soon as the period of lease expired. In that event the objection now taken by the petitioner would have no foundation whatsoever. In the circumstances it becomes a matter entirely of a technical significance that instead of taking the said plea when the proceedings were pending before the Rent Controller it was advanced at the time when the application for eviction was initially filed. It will hardly be in the interest of justice that I should interfere with the order of eviction in the exercise of writ of Justice merely to uphold a technical objection and thus force the parties to another round of litigation. On the other hand it seems more appropriate to assume that the application of eviction insofar as the plea of personal need is concerned was filed on the day when the period of the lease expired."
' I respectfully follow this reasoning and hold that due to maturity of cause of action during the pendency of the ejectment petition, it can proceed and the view taken by the learned District Judge is in conformity with law.
8. For all these reasons, this writ petition having been found without any merit, is dismissed but the parties are left to bear their own costs.