1. ' Appellant Bank is the tenant of the respondents in respect of Shop No, 12 on ground floor measuring 897.135 sq.Ft. And 177.58 sq.Ft. On the mazanine floor of Plot No, 286, K.E.B. Artillery Maidan Quarters, Karachi since 1954. On each occasion a lease agreement was executed for a period of three years with a clause for renewal of the lease for a further period of three years but the last lease executed on 11-5-1981 without renewal clause expired on 15-3-1984 whereafter the appellant Bank is holding over the demised premises without any lease. The first, lease was executed on 29- 5-1954 w,e,f, 16-3-1954 stipulating that the premises were rented out for the purpose of carrying on banking business and the appellant was allowed to make alterations, attach fixtures and erect additional structures etc. To suit the special requirement for carrying out the business of banking.
2. Before renewal of the last lease, respondents informed the appellant that on expiry of the period of lease it would not be renewed and that they shall hand over vacant possession of the premises to the respondents.
3. ' Respondents sought ejectment of the appellant Bank on the ground of expiry of lease and bona fide requirement of the premises for their own use and use of their children as they wanted to open a departmental store in the demised premises.
4. ' Appellants resisted ejectment and submitted that the tenancy was continuous from the year, 1954 last lease being in fact a continuation of the previous lease deeds with a mere enhancement in rent. They denied that any commitment or statement was made by either of the parties that upon expiry of the lease executed on 11-5-1981 premises shall be vacated by them. They denied personal requirement of the respondents and added that this ground had been advanced for eviction on their refusal to enhance rent at an exorbitant rate demanded of them.
5. ' Both the parties adduced evidence, respondent No,2 examined himself and his daughter Zohra Begum while the appellant Bank examined their attorney Siraj Baqar Jafri.
6. ' On averments of the parties, learned Controller settled the following issues for determination:
(1) Whether applicants after expiry of tenancy period are entitled to seek ejectment of the opponents, without proving good faith?
(2) Whether applicants require the premises in question for their personal bona fide use and occupation and for their children?
(3) What should the order be?
7. ' Upon assessm ent of evidence and hearing the counsel for the parties, learned Controller answered both the issues in favour of the respondents and allowed eviction application vide judgment dated 25-2-1987 which has been impugned in this appeal.
8. ' Mr. I.H. Zaidi, learned counsel for the appellants contended with vehemence that this was a case of long term tenancy commencing as far back as 1954 clause (iii) whereof provided for renewal at the option of the appellants. He contended that before the expiry of lease, appellants vide their letter dated 3-1-1981 Exh. A/12 had enclosed therewith a draft for renewal of lease for a further period of three years which as usual contained a renewal clause but in the fair lease agreement this clause was ommitted and they signed the same in good faith believing that this agreement also included a renewal clause. On the other hand, learned counsel for the respondents referred to the exchange of correspondence between the parties tending to show that before the expiry of lease in 1981 respondents had categorically informed the appellants in candid terms that they were prepared to enter into a fresh lease for a further period of three years from 16-3-1981 on the same terms and conditions except renewal clause for any further term. First letter dated 10-1-1981 ExhA/13 was sent to the appellant Bank in response to their letter dated 3-1-1981 Exh. A/12. In reply to this letter, appellant Bank sent a draft lease agreement Exh. A/18 to the respondents without any renewal clause unlike earlier lease agreements. The lease agreement Exh.A/19 was finalized and registered on llth May, 1981 for a period of three years commencing from 16-3-1981, which candidly negates the stand taken by the appellants at this stage. Apart from the respondents evidence signifying that they had notified the appellants that the lease would no longer be renewed as they needed the premises for their own use and for use of their children, appellants, frankly admitted that in the year 1981 a draft for renewal of lease was sent to the respondents by the Bank in which there was no clause stipulating that lease would be renewed for another three years. He fairly admitted exchange of correspondence between the parties including execution of lease agreement Exh. A/19 by an attorney of the Bank. In the light of overwhelming evidence on record, I am not impressed by the contention raised on behalf of the appellants that they had signed the lease agreement in good faith believing that it contained a renewal clause or that the draft agreement sent by them to the respondents contained a renewal clause for a further period of three years.
9. ' Mr. Zaidi, learned counsel appearing for the appellant next contended that section 6 as well as clause (i) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) having been omitted by Amendment Ordinance IV of 1984 with effect from 30th July, 1984, ground for eviction that the tenancy had ceased to be valid, was no more available to the respondents.
10. ' Section 6 before its omission read as under: "6. Tenure of tenancy.---No tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy."
11. ' Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of the Ordinance.
12. ' In consonance with this provision of law clause (i) of subsection (2) of section 15 of the Ordinance provided among other grounds that Controller shall make an order directing the tenant to put the landlord in possession of the premises if he was satisfied that the tenancy had ceased to be valid under section 6.
13. ' In support of his contention, Mr. Zaidi has referred to Hansraj v. Mrs. Zahida Ali (1987 M LD 179) and Waris Imam v. Kanwar Maqsood Ali Khan (1987 M LD 877), while learned couiisel for the respondent has relied upon Khushiram Atmaram Jaisinghani and others v. Custodian of Evacuee Property, West Pakistan and Karachi and others (PLD 1965 SC 453) and Abdul Sattar v. Muhammad Umar (1989 CLC 469).
14. ' In the first case cited on behalf of the appellants it was held by a learned Judge of this Court that right to seek eviction on expiry of fixed term of tenancy conferred by section 15(2)(i) of Ordinance XVII of 1979 ceased to be operative by reason of its deletion by Ordinance IV of 1984 without providing for any saving. When the clause conferring right of eviction was deleted and proceedings under the clause were pending on date of such repeal, landlord would have no accrued right to survive the repeal of section 15(2)(i) of Ordinance (XVII of 1979) and pending proceedings would not be saved.
15. ' In Waris Imam's case decided by the same learned Judge it was held that Rent Controller would be competent to pass eviction order on the ground of such expiration alone before the omission of the above provisions. In other words extra-judicial termination or determination of tenancy would not, by itself, divest a tenant of his status which cannot be put to an end except by a judicial order passed on certain specified grounds provided under sections 14 and 15 of the Ordinance and does not come to an end in any of the ways mentioned in section 111, Transfer of Property Act, like efflux of time, or by service of a notice.
16. ' In Khushiram Atma Ram case with reference to section 6 of clause (e) of the General Clauses Act, it was held that clause (e) refers to "such right, privilege etc., as aforesaid" and this refers to clause
(c) in accordance with which any "right, privilege, obligation or liability which has already accrued or been accrued' remains unaffected. In the application of clause (e) therefore there has first to be a right and then a legal proceeding in respect of such right. This does not appear to be applicable to a case where the only possible right which can be said to have accrued is the right to prefer a particular legal proceedings. From its wording clause (e) would apply to legal proceedings in respect of substantive rights which have already accrued under the repealed enactment and would not cover a case where only a procedural right is granted.
17. ' In Abdul Sattars case, a learned Single Judge of this Court dealing with the repeal of sections 6 and 15 (2) (i) of the Ordinance during pendency of proceedings held that repeal of section 6 was neither retrospective nor a matter of procedure. It was held that landlord was entitled to relief in view of agreement of tenancy despite repeal of section 6.
18. ' For proper understanding and analysis of the legal position it is necessary to refer to section 6 of the General Clauses Act, 1897. The relevant provision reads as under: ' Section 6. Effect of repeal.---Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not---
(a) .........................................
(b) .........................................
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.Or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act, or Regulation had not been passed.
19. ' A glance at the above-referred provision of law would reveal that the right accrued to a party on the date of repeal of section 6 of the Ordinance would remain intact and unaffected notwithstanding the circumstance that there is no express provision in the repealing Ordinance saving the pending proceedings. A right to seek eviction of a tenant on the ground of expiry of tenancy would thus be protected and saved in spite of repeal of section 6 of the Ordinance. In Hansraj case referred to above, learned Single Judge was influenced by the circumstance that the repealing Ordinance did not provide for any saving in respect of the pending proceedings. In Waris Imam's case neither the provisions of section 6 of the General Clauses Act nor Division Bench judgment of this Court in the case of Muhammad Bachal v. Deputy Rehabilitation Commissioner, Hyderabad and others (PLD 1962 (W.P.) Kar. 889) and the judgment of the Supreme Court in the case of Idrees Ahmad and others v. Fida Ahmad Khan (PLD 1985 SC 376) dealing with the effect of repeal of a statute were considered. In the Division Bench judgment it was ruled that the general principle is that where a statute affects existing rights its provisions are not to be held as retrospective in operation, unless a clear intention to the contrary is manifest. In the Supreme Court case dealing with effect of repeal of a statute in terms of clauses (c) and (e) of section 6, General Clauses Act their Lordships of the Supreme Court held that right of appeal given under repealed enactment is such a right which survives the repeal unless repealing enactment either expressly or by necessary implication curtails such right in any manner. The proposition that all the rights to remedy by way of appeals or otherwise under an enactment stand vested and accrued in the litigating parties on the date of the commencement of the is, therefore, not open to challenge, unless of course the repealing enactment either expressly or by necessary implication, curtails such rights in any manner.
20. ' It may be observed that the ejectment application against the appellant Bank was filed on 9-4- 1984 whereas the repeal took place w,e,f, 30-7-1984. On the date of institution of the ejectment application, thus respondents had a right to seek ejectment which could not be defeated as the amendment brought by the legislature was not retrospective in operation. Even by necessary intendment or implication it could not be validly said that the amendment brought all pending proceedings to an end with the repeal of section 6 of the Ordinance. Respectfully following the rule laid down in the Division Bench judgment as well as the Supreme Court authority, I see no merit in the contention raised on behalf of appellant that the respondents could not seek eviction on the ground of expiry of tenancy after the repeal of sections 6 and 15 (2) (i) of the Ordinance.
21. ' There is, however, another aspect of the matter, namely, the proviso to section 6 of the Ordinance as it stood before its repeal. This provision is in the nature of an exception to the rule contained in section 6 of the Ordinance. The exception is to the effect that this section shall not affect any tenancy existing immediately before coming into force of this Ordinance. The Ordinance came into force w,e,f, 21st November, 1979 before which date relation between landlords and tenants were regulated by the provision of West Pakistan Urban Rent Restriction Ordinance, 1959. Tenancy in favour of the appellant Bank, however, commenced in March, 1954 which was renewed from time to time. There was a valid and continuing tenancy agreement between the parties on the date of enforcement of this Ordinance which would bring the case within exception clause. Since there was a valid tenancy existing immediately before coming into force of the Ordinance, it would, therefore, be immaterial whether section 6 of the Ordinance remained intact or was repealed and the entire discussion thus becomes of academic nature. For this reason, respondents could not press this ground into service for ejectment of the appellant Bank and I hold accordingly.
22. ' Adverting to the ground of personal requirement, it would appear from a narrative of this judgment that the respondent had informed the appellant Bank as far back as January, 1981 followed by subsequent letters and absence of renewal clause in the lease agreement that the lease would not be extended beyond 15-3-1984 as they needed the premises for their own use and for use of their family members.
23. ' Respondent Sultan Ali as well as his daughter Mst. Zohra Begum in their evidence have demonstrated their bona fide need requirement of the premises for opening a departmental store in the premises. No doubt, respondent Sultan Ali admitted that he is running a Printing Press and that he has no intention to close down the said business but he categorically stated that the demised premises are needed for opening a departmental store. He has two sons, namely, Abdul Rehman and Feroze who are partners with him in the press while his daughter Mst. Zohra Begum is employed with Jaffar Brothers. The fact that his sons are his business partners in the Printing Press would not be sufficient to deprive them of their plan to open a departmental store in the premises.
24. Even daughter of the respondent, namely, Mst. Zohra Begum stated that she had no place to start her business and therefore, she was compelled to serve initially in Agha Khan Hospital and that she would start departmental store in the premises with help of her brother Feroze Sultan Ali Sajan.
25. ' Learned counsel for the appellant Bank strenuously contended', that both the sons as well as daughter of the respondent were well set and did not need the premises for their own use but in the context of overwhelming evidence on record, I am unable to agree with this view. Bona fides of the respondents can be inferred from the circumstance that in early 1981 they had decided to have the premises vacated in March, 1984 in order to settle their children in the disputed premises. There is no circumstance to indicate that their demand and requirement was tainted or motivated by bad faith. No other circumstance has been pointed out to show that the requirement of the respondents was not bona fide or that they did not need the disputed premises for their own use in good faith. There is plethora of authorities in favour of the view that landlord is the best judge to determine the manner in which he should use his property. In my view, respondents have established their need and requirement for the premises in good faith beyond any shadow of doubt and in fact no restriction can be placed on their fundamental right to enjoy their properly to the best of their choice.
26. ' There is thus no merit in this appeal which is hereby dismissed. In view of the commercial nature of the business undertaken by the appellant Bank, I would direct that they shall hand over vacant possession of the premises on or before 1st July, 1995.