1. ' ANWARUL HAQ, J.-This order will dispose of Civil Appeals bearing Nos. K-24, K-25 and K-26 of 1972, which have arisen out of the same order of the High Court of Sind & Baluchistan at Karachi and raise identical questions of law and fact.
2. ' The respondent Hakimuddin owns a building bearing survey No, 7/2, situ ate on Victoria Road, Karachi. On 15-10-60 he applied to the Rent Controller for the grant of a certificate under section 10 of the Karachi Rent Restriction Act, 1953, against the appellants on the ground that the main tenant had sublet the premises to other parties, and that the landlord desired to reconstruct the property for which plans had been duly approved by the Karachi Development Authority. The learned Rent Controller granted the necessary certificate by his order dated 4-9-1961. However, this order was set aside in revision on 15-12-1962 by the learned Chief Judge, Small Causes Court, Karachi.
3. ' Thereafter, the landlord filed Writ Petition No, 286 of 1963 in the High Court of West Pakistan at Karachi, but the same was dismissed on 5-9-1963 on the ground that the petition was not maintainable in law in view of section 13 of the West Pakistan Rent Restriction Ordinance, 1959 which had been made applicable to Karachi with effect from the 1st of July 1963 on the repeal of the Karachi Rent Restriction Act, 1953.
4. ' Consequently, the landlord filed an ejectment application on 9-10-1963 under section 13 of the aforesaid Ordinance alleging, inter alia, that the tenant had sublet a considerable portion of the property, and that he wanted to reconstruct the property. The application was resisted by the present appellants on several grounds, including the contention that the application was barred on account of the order made by the Chief Judge, Small Causes Court, Karachi, on the 15th of December 1962, recalling the certiticate previously obtained by the landlord from the Rent Controller, Karachi, under section 10 of the Karachi Rent Restriction Act, 1953.
5. ' During the pendency of the landlord's application against the appellants, clause (vi) of subsection
(2) of section 13 of the Ordinance was amended by West Pakistan Ordinance No, XXI of 1965 promulgated on 8-6-1965, stipulating that the building or rented land is reasonably and in good faith required by the landlord for reconstruction or erection of a building on the site. The other requirement regarding the obtaining of the necessary sanction for the said construction from the local body concerned was left intact. The learned Rent Controller rejected the landlord's application on the grounds that it was barred under section 14 of Ordinance X XXVIII of 1962 in view of the previous order of the learned Chief Judge, Small Causes Court, Karachi, dated the 15th of December 1962 ; and that the landlord had failed to prove that his intention to reconstruct the property was reasonable and in good faith as required by the amended clause. It appears that the learned Rent Controller did not frame any issue on the question of subletting, nor did he record any finding in this behalf.
6. ' The landlord's appeal against this order of the Rent Controller was accepted by the learned Additional District Judge, Karachi, on the 13th of March 1967. He held that the application for ejectment under section 13 of the Ordinance was not barred by the previous proceedings resulting in the order of the learned Chief Judge, Small Causes Court, Karachi, dated the 15th of December 1962 ; and that the amendment introduced in clause (vi) of subsection (2) of section 13 of the Ordinance on 8-6-1965 had no retrospective application to pending applications for ejectment, and that all that the landlord had to prove was that he intended to reconstruct the property and had obtained sanction of the local authority for this purpose. He went further and held that even otherwise the landlord had succeeded in proving that his requirement for reconstructing the building was reasonable and bona fide, with the result that the application had to be allowed even under the amended law. On this view of the matter, the learned Additional District Judge set aside the order of the learned Rent Controller and directed the appellants to hand over vacant possession to the landlord within two months.
7. ' Aggrieved by this order in first appeal, the present appellants filed separate second appeals in the High Court which were dismissed by a learned Single Judge, by his order dated the 25th of February 1971. He affirmed the findings recorded by the learned Additional District Judge on all the material issues arising in the case. Finally, he observed that the appellants were not entitled to the benefit of the newly inserted provisions contained in subsection (5-B) of section 13 of the Ordinance as this new provision had to be read together with the amendment made in clause (vi) of subsection (2) of section 13 of the Ordinance, and both were not retrospective. He expressed the view that although an application for restoration of possession under subsection (5-B) had to be made after the building had been reconstructed, yet a claim under this subsection was not independent of the ejectment application filed under clause (v3) of subsection (2), and would, therefore, be governed by the law as it stood on the date of the institution of the landlord's application for the ejectment of the appellants.
8. ' Having failed before the learned Single Judge, the appellants filed appeals under clause 10 of the Letters Patent, which were dismissed by a Division Bench of the High Court on 19-10-1971. The findings and views of the learned Single Judge as regards the merits of the case and the retrospective application of the relevant provisions of the West Pakistan Rent Restriction Ordinance, 1959, as introduced by the amending Ordinance on 8-6-1965, were endorsed.
9. ' Leave to appeal was granted in all these cases mainly to consider the question whether Ordinance XXI of 1965, promulgated on the 8th of June 1965, which amended clause (vi) of subsection (2) of section 13 of the Rent Restriction Ordinance and added a new subsection (5-B) to section 13 of the West Pakistan Rent Restriction Ordinance, 1959, was retrospective in operation so as to enable the appellants to take advantage of the amended law.
10. We find that precisely the same question fell for decision in Civil Appeals No, K-3 to K-12 of 1972 decided by the Full Court on the 30th of May, 1974 reported as Hassan and others v.Fancy Foundation (1). It was held that the two amendments to section 13 of the principal Ordinance were matters of substantive law as distinguished from procedural matters, and accordingly the amended clause (vi) of subsection (2) of section 13 was to operate prospectively so as not to govern pending cases. It was further held that subsection (c-B) of section 13 would, however, be available to the tenants, ejected from the property to be reconstructed, for the reason that the subsection will come into operation in these cases after the ejectment of the appellants and reconstruction of the building which had yet to take place It was observed that "in that sense the application of subsection (5-B) in favour of the appellants in these cases would be prospective even though some of the events, namely, the initiation of the proceedings for eviction of, the appellants, had already taken place prior to the enactment of the subsection." In coming to these conclusions, reliance was placed on the well-established principle that in general, when substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights.
11. ' The learned counsel for the parties in the present appeals conceded that the dictum in the precedent case applies here with full force. They did not accordingly address any argument on the question of law as formulated in the order granting leave to appeal.
12. ' It was, however, submitted by the learned counsel for the respondent-landlord that the appellants would not be entitled to the benefit of subsection (5-B) of section 13 of the Ordinance, as they had been found guilty of subletting. Learned counsel for the appellants, on the other hand, contended that the order of the Chief Judge, Small Causes Court, dated the 15th of December 1962, operated as res judicata on the question of subletting, and it had to be held that there was no such breach of tenancy on the part of the main tenant, and, therefore, the appellants had a right to be put back in possession in terms of the newly inserted subsection (5-B) aforesaid.
13. ' It seems to us that both the contentions are misconceived. We have already stated earlier that no issue was framed by the learned Rent Controller on the question of subletting and no finding was recorded in that behalf. The same is the position with the orders made by the learned Additional District Judge and the High Court. All the Courts below have confined their attention only to the question of the landlord's right to have the building vacated for the purpose of reconstruction. In these circumstances, it is neither necessary, nor possible, for us to decide in the present proceedings whether the appellants are indeed entitled to the benefit of subsection (5-B) of section 13 of the Ordinance. All that is necessary for us to say is that, in view of the decision in the case of Hassn and others v. Fancy Foundation, referred to above, the appellants would be entitled to apply for re-instatement in the property in terms of subsection (5-B) and it would be for the Rent Controller concerned to decide whether the appellants fulfil the conditions contemplated by this provision.
14. ' As a result, the appeals fail and are hereby dismissed, but in view of the legal questions involved, we make no order as to costs.
15. ' The appellants are allowed four months' time to deliver vacant possession of the premises to the landlord.