' Second Rent Appeal, under section 15 (6) of Punjab Urban Rent Restriction Ordinance, 1959, as amended by Act III of 1991, by the occupant of a shop is against the agreed judgment of Rent Controller and that of lower Appellate Court directing his ejectment on the ground that premises in his occupation were bona fide required for self-use of respondent No,3 in second appeal.
2. Facts giving rise to the appeal are briefly these: shop bearing survey No,D/388, situate inside Lohari Gate, Lahore, was a non-Muslim evacuee-owned property. The appellant was in its occupation. On 15-1-1960, shop was transferred to him by a Deputy Settlement Commissioner and Appendix XI issued in his favour. He associated with Mst. Majeedan widow of Nazir Ahmad, and, surrendered his rights in the shop to her by a deed of association executed between them on 25- 10-1960. Association deed was approved by the Settlement Authorities on 26-10-1960. Mst.
Majeedan died on 11-1-1961. Her son Muhammad Yousaf succeeded her and was declared her successor. A P.T.O. And P.T.D. In respect of the shop was issued in his favour. Muhammad Yousaf expired on 26-3-1976, leaving behind him surviving respondents as his successors-in-interest.
3. Respondents acting through Sardar Muhammad Tufail Khan, Advocate, gave notice dated 1-2- 1983 Exh.A.1 to the appellant requiring him to pay rent of the shop in his occupation at the rate of Rs,140 per month with effect from January, 1978, and vacate the shop because of its requirement for self-use of Sheikh Muhammad Azhar. Appellant through his counsel Sheikh Muhammad Ashraf, Advocate, gave reply to the notice. His reply is dated 13-2-1983, and is Exh. A.3 of file. In his reply, appellant admitted his status as tenant of the respondents and stated that the rent per month at the rate of Rs,60 was being deposited in the Treasury .After getting permission from the Rent Controller. It was further stated that rent till March 1983, was paid through Bank receipts and as for the need for self-use of the shop by Sheikh Muhammad Azhar, allegation was controverted.
Respondents gave a rejoinder Exh.A.4 and reiterated their stand and insisted upon payment of rent and vacation of shop by the appellant.
4. On 22-3-1983, respondents as successors-in-interest of deceased Muhammad Yousaf applied to the Rent Controller, Lahore, Urban Area, for eviction of the appellant from the shop in his possession on three-fold grounds i,e, non-payment of rent at the rate of Rs,140 per month since January, 1978; bona fide requirement of the shop for its self-use by petitioner No,3 Sheikh Muhammad Azhar and causing of damage to the shop by the appellant, which had impaired its value and utility. Appellant appeared in Court and submitted his written defence. He stated that Mst. Majeedan widow of Nazir Ahmad had agreed with him by a deed in writing on 2-8-1960 that the appellant shall not be ejected from the shop in question if he paid its rent regularly and had also agreed to pay him Rs,3,600 as costs of furniture etc. In the event, she intended to commence ejectment proceedings against him. It was further stated that notice under section 13-A of the Rent Ordinance was not served upon him, either by Muhammad Yousaf or his successors and, therefore, ejectment application was prematurely filed. As for payment and clearance of rent, it was asserted that rent per month at the rate of Rs,60 was already deposited in the Treasury uptil March 1983, and thus there was no rent default. Likewise, allegations about causing of damage to the shop and its requirement for self-occupation by Sheikh Muhammad Azhar were also controverted. It may be advantageous to observe that the relationship of landlord and tenant between I he parties was neither expressly nor impliedly denied by the appellant in his written statement.
5. On 18-9-1984, an order under section 13 (6) of Rent Ordinance for deposit of rent at tentative rate of Rs,140 per month with effect from January 1978, and future rent at the same rate was passed by the Rent Controller. On 4-2-1985, following issues were settled in the rent case:--
(1) Whether the respondent has committed default in payment of monthly rent of the property in dispute since January 1978? OPA.
(2) Whether the premises in dispute is required bona fide and in good faith for the personal use of the petitioner? OPA
(3) Whether the respondent has impaired the value and utility of the property in dispute? OPA
(4) Whether the application is not maintainable under the law? OPA
(5) Whether the ejectment petition is premature? OPR
(6) Whether notice under section 13 (A) of the Rent Restriction Ordinance (VI of 1959) has been served upon the respondent? OPA.
(7) Whether the application has been filed with mala fide intention? OPA.
(8) Relief.
' Before settlement of issues, appellant had applied to the Rent Controller for amending his written statement to plead denial of relationship of landlord and tenant. It was stated in the application for amendment that the relationship of landlord and tenant had been erroneously admitted by him and that the title-deed to the swop in question was fraudulently obtained. Respondents contested the application for amendment of the written statement. By an order passed on 4-6-1984, Rent Controller dismissed the application for amendment. By yet another miscellaneous application, the appellant applied to the Rent Controller for dismissal of the ejectment petition on the ground that a title-suit was pending adjudication between Nizam Din etc. And the respondents. On 11-7-1985, Rent Controller dismissed this application also. Thereafter, respondents gave evidence of four witnesses including one of them as a party-witness and produced some documentary evidence also. In rebuttal, appellant produced two witnesses and as he did not give further evidence, Rent Controller closed his side of the case.
6. Upon consideration of material brought on record, Rent Controller found that the appellant was not a rent defaulter; that the shop in question was required bona fide, and, in good faith for self- occupation by petitioner No,3; that causing of damage to the shop and its impairment of value and utility was not established; that notice under section 13-A of Rent Ordinance was served and the filing of ejectment petition was not premature. In result of the above findings, Rent Controller directed ejectment of the appellant, vide his order dated 31-1-1987 and gave the appellant, a month to vacate and hand over the possession of the shop to the respondents. Appellant preferred an appeal. It came to be heard by a learned Additional District Judge of Lahore District, who accepted it and after setting aside of the eviction order remanded the rent case for deciding it afresh after taking more evidence. In post remand proceedings, appellant appeared as his own witness as R.W. 3 and denied almost everything hitherto done including the averments in his written statement and the appointment of the Advocate by him. He went to the extent of denying the payment/deposit of rent also. Upon consideration of all the material brought by the parties on record in respect of their respective contentions, Rent Controller again found that the appellant was not a rent-defaulter because he had been paying the rent to the respondents; that the shop in question was bona fide required for self-occupation by Sheikh Muhammad Azhar; that damage to the shop and its diminution in value was not proved; that the ejectment petition was maintainable; that no evidence was given to prove agreement between Mst. Majeedan and the appellant; that service of notice under section 13-A of Rent Ordinance was proved; that no mala fide intention in filing of the ejectment petition could be attributed. Consequent upon above conclusions, Rent Controller again directed appellant's ejectment from the shop on the sole ground of its bona fide requirement for use by one of the respondents and ordered the appellant to vacate it and hand over its possession within three months of his order passed on 31-5-1989. An appeal filed against this decision by the appellant was dismissed on 2-2-1991 by the learned Additional District Judge, Lahore, who while dismissing the appeal gave two months to the appellant for handing over possession to the respondents. Against these two decisions directing ejectment on the ground of self-requirement of one of the respondents, appellant has come up on second appeal to this Court.
7. On behalf of the appellant, his learned counsel vehemently contended that the appellant had denied relationship of landlord and tenant, yet no issue was framed on the denial of relationship of landlord and tenant nor a decision given In the Courts below; that there was an element of fraud involved in the transfer of property in favour of the respondents, which was not inquired into by the Courts below and in that context, it was stated that it was appropriate for the Courts below to have directed the respondents to first establish their title before a Civil Court and then approach the Rent Controller for seeking ejectment; respondents were not proved to be successors-in-interest of Muhammad Yousaf, nor, Muhammad Yousaf, a true successor of Mst. Majeedan and finally, bona fide requirement of the shop for self-use of respondent No,3 was not adequately established.
8. As against the above contentions of learned counsel for the appellant, learned counsel for the respondents objected to maintainability of second appeal and also submitted that findings arrived at in the Courts below were supported from the record and could not be questioned.
9. In the above context, I shall first advert to the contention about the existence of relationship of landlord and tenant between the parties, absence of framing an issue on it, and, effect of its omission on the result of the trial. Upon a close perusal of record, the contention appeared to lose all merits and faded in total insignificance. Upon service of notice in the ejectment application, appellant appeared in Court and appointed Sheikh Muhammad Ashraf, Advocate, to conduct defence on his behalf. Written statement was filed through him. In the written statement, relationship of landlord and tenant was not denied and payment of rent at the rate of Rs,60 per month was pleaded. Further, in the absence of any denial, express or implied, of the relationship of landlord and tenant, Rent Controller passed an order under section 13 (6) of the Rent Ordinance for rent deposit and the appellant also complied with its terms. Prior to it, there are about twenty-nine treasury challans on file showing deposit of monthly rent by the appellant to the credit of Sheikh Muhammad Zafar, one of the respondents. Appellant's witnesses., R.W. 1, R.W. 2, namely, Ghulam Hassan and Muhamamd Siddiq unequivocally admitted that the appellant was tenant of the respondents. R.W.2 deposed about the execution of rent-receipts Exhs. R.1 to R.6 in his presence, which went to prove payment of monthly rent by the appellant to the respondents. In reply notice also, appellant admitted that he occupied the shop as tenant of respondents and paid rent to them. In course of rent proceedings, however, appellant chose to alter his stand and through an application for amendment to the written statement, which was not allowed and then started asserting his own ownership of the shop. He appointed successively four or five advocates at different stages of the rent proceedings. Apart from his sole statement in denial of relationship of landlord and tenant, there was voluminous material on record to establish existence of relationship of landlord and tenant between the parties. Even the evidence of appellant's two witnesses predominantly established that relationship of landlord and tenant subsisted between the parties and its subsequent denial at a later stage of proceedings was a meaningless expression and a belated thought. Much before the commencement of ejectment proceedings, appellant had started depositing monthly rent in the treasury with the permission of the Rent Controller. What did it indicate except that he acknowledged the respondents and their predecessor-in-interest Muhammad Yousaf as his owner-landlord of the shop. Also, there is a photo copy of P.T.D. Present on rent file. Since there was no issue between the parties on the point of relationship of landord and tennat, the title documents were not put in evidence. Original P.T.D. Has been shown to the Court in course of hearing of the second appeal. Further, there are receipts showing payment of property tax by the respondents and Muhammad Yousaf. Entries in Form PT-I recorded respondents as owners of the shop and appellant in its occupancy. In face of all this evidence, a further probe into the title of the respondents for a binding decision on it is beyond the scope of summary inquiry as envisaged by Rent Laws. Appellant has already taken his title dispute with respondents in a suit for declaration of ownership rights, before a Civil Court at Lahore. Therefore, having admitted the relationship of landlord and tenant and paid rent also, appellant was clearly estopped and precluded to deny the title of the respondents. For the purposes of this appeal, it is sufficient to say that there was no element of fraud in title of the respondents. In this view, it was not necessary to frame a separate issue on the point of relationship of landlord and tenant and its omission was not fatal to the ultimate decision. Also, no prejudice is shown to have been caused to the appellant. As for self-need of the shop for use of Sheikh Muhammad Azhar, there is a finding of fact by the Courts below, which is not susceptible to a further review. The finding does not suffer from an error of non- reading or misreading of record. There is no fallacy in the appraisement of evidence either.
10. Having dealt with issues on merits relating to existence of relationship of landlord and tenant and self-requirement of the shop for the use of one of landlords and resolved against the appellant, I propose to revert to the preliminary objection raised on behalf of the respondents about the competence of second appeal under the amended Rent Laws. By Punjab Ordinance (XIII of 1990), promulgated on 6th June, 1990, right of second appeal in the case of a "non-residential building" was restored under section 15(6) of Rent Ordinance 1959, which reads as follows:- "(6) In the case of a "non-residential building", a person aggrieved by an order passed on appeal by the appellate authority may, within 30 days from the date of the said order, prefer an appeal in writing to the High Court."
Subsections (7) and (8) are not being reproduced because those are unnecessary for the purpose of the reference. By Ordinance XIII of 1991, promulgated on February, 23, 1991, the provisions relating to second appeal in respect of a "non-residential building" were repeated verbatim. By Act III of 1991, known as Punjab Urban Rent Restriction (Amendment) Act, 1991, substantial amendments were made in section 15 of the Rent Ordinance including giving of right of second appeal to the High Court in the case of a "non-residential building." The amendments came in force on 16-3-1991.
Prior to the enforcement of the above Act, as said above, the Governor of the Punjab had issued Ordinance on the lines as indicated above. The question falling for consideration and decision is, whether right of second appeal conferred in course of pending proceedings shall be available to the parties to them or that the right shall apply only to the proceedings commenced after its enforcement. My learned brother, Malik Muhammad Qayyum, J. Referring to and relying upon certain decided cases took the view that the amended legislation was prospective and applied to only those cases, which were commenced after its enforcement and held it inapplicable to pending cases. Upon careful examination of rules of interpretation of statutes and some decided cases to which reference shall be made presently, it is my misfortune to differ with my learned brother because despite profound respects for his Lordship's learning and knowledge of law, I have not been able to subscribe to his view. It is by C now a well-established statement of law that institution of a lis carried with it the implication tha' t right of appeals then in force are preserved to the parties till the rest of the career of the lis. But the rule is not without exceptions. One such exception known to law is when by a competent enactment, such right is taken away either expressly, or impliedly retrospectively. Another exception is that when right of appeal would be lost if the Court or Tribunal to which the appeal then lay, that is, at the commencement of the lis is subsequently abolished altogether without a substitute. For reference, see Gundapuneedi Veeranna and others v. Gundapuneedi China Venkanna and others AIR 1953 Mad. 878 (Full Bench). Different considerations shall prevail where a right of appeal or a further right of appeal hitherto non-existing or taken away is given or restored in course of proceedings. A distinction should be drawn between the case where the right of appeal is taken away and the case where a right of appeal or a further right of appeal is given. Interference with the rights of parties is clearly of a different nature in the two cases. The right of appeal is a positive and substantive right and it accrues at the time of filing of suit or commencement of lis, but absence of a right of appeal cannot be called a right at all. The prohibition of the right of appeal by law at the time of institution of the suit or commencement of lis does not amount to a substantive or existing right accruing to the parties. It is a mere negation of such right. If the law chooses to give or confer such a right during the pendency of the case, there is no principle of law, which prevents it from doing so and no rule of finality is interfered with. In Debi Prasad v. M. Phundan Lal and others AIR 1942 Oudh 291, a Full Bench of the Court subscribed to the view that a right of appeal conferred during the currency of the litigation unless expressly provided otherwise was available to the parties involved in that litigation. On this point, Bennett, J. Observed:-- ' appears to me to be dear therefore that the question whether a second appeal lies under the Encumbered Estates Act, where the first appeal was filed before but decided after 30th September 1939, when the amending Act introducing a second appeal came into force, cannot be decided upon the principle that the rights of the parties are determined, both for the purpose of appeal and for other purposes by the law as it stood when the suit was instituted. And I am inclined to agree with Medeley, J. That a distinction should be drawn between the case where the right of appeal is taken away, and the case where another right of appeal is added. The interference with the rights of the parties is dearly of a different nature in the two cases. If the right of second appeal were taken away while the first appeal was pending both parties would have, I think a greater sense of grievance than they would have if a second appeal were added during the pendency of the first.
Indeed I do not think that in the second case they would feel any sense of grievance at all. On the contrary, there having been no decision which they could regard as final, they would in the first case feel that they had lost a right, while in the second case they would feel that they had gained one. Both parties would normally have similar feelings in the matter so long as the litigation was pending. But the position would be quite different if under the law as it stood when the decision of the first appellate Court was given the parties had no reason at that time to expect that the matter would be carried further, and a second appeal was added after that decision. The unsuccessful party gains and the successful party loses a right by the change in the law if it is held that a second appeal lies."
' Madeley, J. With whom Agarwal, J. Also agreed, expressed similar views. In Govindram Seksaria v.
Commissioner of Income Tax (Central) Bombay AIR 1943 Bombay 122, Beaumount, C.J. Dealing with a similar question at page 125 of the judgment observed:- "The position is that assessm ents under section 23(4), Income Tax Act, 1922, were not appealable, until the Act was amended on Ist April 1939, when, for the first time, such orders became appealable. Seeing that the order in this case was made on 3rd January 1940, I confess that it seems to me rather difficult to see why the order is not appealable. But the Commissioner contends that the right of appeal conferred by the Amendment Act does not extend to any assessm ent which was pending at that date, and for that he relies on two decisions of the Privy Council and one decision of the High Court of Rangoon. In (1905) A.C. 369 the Privy Council were dealing with a statute which had put an end to appeals to the Privy Council, and they held that a right of appeal is a substantive right, and not a mere matter of procedure, and that in the absence of clear language the statute should be construed as not applying to appeals in suits pending when the statute was passed. The Privy Council held that a man filing a suit is entitled to say 'I have a right to carry my grievance to the highest tribunal,' that is a substantive right, not lightly to be taken away, and they held that it was not taken away by the statute in that case. In 54 I.A. 421, the Privy Council applied the same principle to a statute granting a right of appeal. They held that a statute granting a right of appeal also dealt with rights, and not procedure, because it put an end to the family of certain orders, but the Privy Council were there dealing with an order actually made before the right of appeal was given, and they held that in the absence of clear words the statute should not be construted as giving a right of appeal against subsisting order.
' In 4 Rang. 221 the principle of that case was applied to a suit pendin g when the statute was passed, in which no order had been made. Whether that was a legitimate extension of the principle established by the Privy Council, I am not altogether sure. It is one thing to say that a man filing a suit has a vested right to take his case to the highest tribunal then permissible; it is going rather further to say that if and when he obtains a decision from a Court from which at the moment there is no appeal he will have a vested right to treat order as final, although an appeal is permissible when the order is passed."
11. Words in legislative amendment restoring right of further appeal to the High Court, in my opinion, rre explicit and very clear. The amendment takes effect forthwith. There is no indication in it that it would not attract itself to pending cases nor that it shall apply only to those set of cases which were filed after its enforcement. At the time of amendment, there were and are thousands of ejectment cases pending in subordinate Courts. Tenancy had issued hue and cry for restoration of a further right of appeal to the High Court, which previously existed but was taken away. Legislature bowed to the pressure and rationale of demand for second appeal and thus by amending the law gave right of second appeal to the High Court in respect of "non-residential buildings" only. In my opinion, the language used clearly attracted itself to the cases which were in the process of being finalised and not those which had already been finally decided under the hierarchy of Rent Laws then existing, before the amendment made in section 15 of the Rent Ordinance came in force. In this view of the matter, which proceeds on a beneficial construction of the statute, I regret my inability to follow the reasoning and conclusions of my learned brother in the case of Sh.
Muhammad Sadiq and another v. LA. Khan 1991 MLD 1205 and hold that right of second appeal given during the currency of rent proceedings was available to the appellant. However, since the appellant has not succeeded on merits, his appeal is dismissed and he is allowed one month to vacate and hand over the possession of the shop in question to the respondents. However, civil suit instituted by the appellant and pending in the Civil Court shall be decided on its merits in accordance with law. There shall be no order as to costs in this Court. Records shall be returned.