1. ' The appellants have impugned order dated 4-9-1994 of learned Rent Controller Karachi (South), whereby they have been directed to hand over vacant possession of the premises in question to the respondents within 60 days from the date of said order. The facts relevant for decision of this appeal are as follows.
2. ' The respondents namely, M/s. Eastern Express Co. Ltd., on 23-2-1978 had filed eviction application against the appellants M/s. Yasmin Plastic Industries, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on the grounds of default in payment of rent and bona fide personal use. In view of subsection (3), of section 27 of the Sindh Rented Premises Ordinance, 1979 hereinafter called the Ordinance, which was promulgated on 21-11-1979, this matter is to be decided by invoking the provisions of the Ordinance. The case of the respondents is that the appellants are their tenants in respect of Godown No, B/5, situated on Moulvi Tamizuddin Khan Road, Karachi, at monthly rent of Rs,150 p.m. And that they had not paid rent since March, 1976. Prior to this, the respondents had instituted eviction proceedings against the appellants on the ground of non-payment of rent, being Rent Case No,1595 of 1975 before the Rent Controller, but the matter was compromised on the undertaking given by the appellants that, in future, they would pay rent regularly and in time. However, they did not keep their words and again committed default in payment of rent, as such, the respondents had filed these proceedings. It is also the case of the respondents that they had sent a letter to the appellants for increasing rent on the ground of excess levy of taxes by the various authorities, but the latter neither acknowledged it, nor paid rent even at the old rate of Rs,150 p.m. The respondents have claimed that due to manifold increase in their business activities, they require the premises in question for their personal bona fide use.
3. ' The appellants resisted the claim of the respondents and denied to have committed any default in payment of rent. They admitted of being tenant in the premises, but challenged the status of the respondents as its owners. They in fact, have taken conflicting pleas. On one hand they maintained that the respondents had declined to accept rent at the aforesaid rate and were pressurising them to enhance it and on the other disputed their title in respect of the premises in question.
4. ' From the pleadings of the parties, learned Rent Controller had settled the following Issues:
(1) Whether the rent application is not maintainable?
(2) Whether the opponents had committed default in payment of rent w,e,f, March 1976 till the filing of the present case?
(3) Whether the premises in question are required by the applicants for their personal bona fide need?
(4) Whether there exist relationship of landlord and tenant between the parties?
(5) What should the Order be?
5. ' The respondents at the initial stage of trial had submitted the affidavit of one Abdul Aziz Arain, but later on with permission of the Court, filed the affidavit-in-evidence of Ziauddin Ahmed Zia, who was cross-examined. The appellants on their behalf submitted the affidavit-in-evidence of one Farooq, who in spite of repeated chances did not appear in Court for cross-examination, as such, learned Rent Controller, by order dated 20-10-1993, closed the side of the appellants.
6. ' On assessm ent of the evidence brought on record, learned Controller decided Issues Nos.1 to 4 in favour of the respondents. Consequently, he allowed the eviction application by the order which has been challenged in this appeal.
7. ' Respondent's witness Ziauddin Ahmed Zia, in his affidavit-in-evidence, stated that he is the Administrative Manager of the respondents and has been authorised by the Board of Directors to appear in Court, and to testify on their behalf. He asserted that the appellants did not pay rent from March, 1976 and they were habitual defaulter. He mentioned that K.P.T. Raised taxes and the appellants were approached to increase rent, but with no result. According to him, the respondents are carrying on the business of Clearing and Forwarding together with storage and containerization service and they need the premises for their personal bona fide use. He has also given necessary details about the business of the respondents. He was cross-examined and his evidence on material points was not shattered.
8. ' It stands proved from the record that the appellants had committed wilful default in payment of rent for about 21/22 months. Factum of default is proved without any shadow of doubt. Also, it has been established that the respondents require the premises for their personal bona fide use. Since the appellants have not produced their witness for cross-examination, therefore, the affidavit of said witness loses all its force as a probative piece of evidence and cannot be taken into consideration. It being so, the finding of the learned Rent Controller on the above points cannot be assailed.
9. ' Mr. A. Rauf learned counsel for the appellants at the time of argument, in fact, has not seriously challenged the findings of the learned Rent Controller on the points of default and personal bona fide use, but laid much emphasis on the plea that the property being of K.P.T. The proceedings could not be initiated before the Rent Controller. Precisely stated the argument is that since the Governor of West Pakistan had exempted the properties belonging to K.P.T. From operation of the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, the. Rent Controller could not proceed with the matter and all the proceedings right from the beginning were illegal, and without any lawful authority. He has produced a copy of the Notification, which is dated 27-2-1967, and its contents are as follows: "No, Judl-I-17(7)/60-Kar.--In exercise of the powers conterred by section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to exempt the properties belonging to the Karachi Port Trust from the operation of the provisions of the said Ordinance."
10. "By Order of the Governor of West Pakistan."
11. ' Learned counsel in support of his contention relied upon the cases (1) Province of Sindh through Secretary, Education Sindh Secretariat, Karachi and 2 others v. Nisar Ahmed 1983 CLC 1905. (2) Mrs. B.S. Khan v. Pakistan State Oil Co., Ltd. 1986 CLC 1935. In order to appreciate the points raised by learned counsel for the appellants it would be advantageous to quote the section 3 of the Ordinance, which speaks about its applicability. It is as follows: "3. Applicability.--(1) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitional under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this Ordinance.
(2) Government may, by notification, exclude any class of premises, or all premises in any area from operation of all or any of the provisions of the Ordinance."
12. ' Adverting to the first case cited by learned counsel for the appellants, it is noted that on 29-7-1980 Home Department, Government of Sindh had issued a Notification exempting the premises belonging to the councils constituted under the Sindh Local Government Ordinance, 1979 and the premises of the Colleges and Schools, taken over under M.L.R. 118 of 1972 from the application of the Ordinance. In this case, the moot point was as to whether the notification exempted only the premises which were owned by the Schools and Colleges but also occupied by the schools and colleges on rental basis. It was held that, in view of said notification, learned Rent Controller had ceased to have jurisdiction over the matter and the final order passed by the Controller was not sustainable in law. Learned counsel submitted that though this notification was for the purpose School and Colleges etc., but the dictum laid down in this matter is fully applicable to the instant case.
13. ' In the second case of Mrs. B.S. Khan Government of Sindh had issued a Notification dated 15-3- 1981 which is as follows: "No, VIII (3)501/75.-- In exercise of ,the powers conferred by subsection (2) of section 3 of the Sindh Rented Premises Ordinance, 1979 and suppression of all orders issued previously, the Government of Sindh are pleased to exempt the premises belonging to Karachi Port Trust, Karachi, from the application of the -Sindh Ordinance."
14. ' Relying upon the aforesaid case, learned counsel submitted that in view of said Notification dated 15-3-1981 the proceedings before the Rent Controller were coram non judice, void ab initio, and the Rent Controller was not competent to assume jurisdiction, and proceed with the matter.
15. ' The aforesaid case is not attracted to the circumstances of this case. In the said reported case, as is evident from the observations of the Court at page 1939, two letters dated 8-3-1982 Exhs. 0/6 and 0/7 showed that the lease in favour of the applicant was not renewed by K.P.T. And attorney had submitted those letters in his evidence. It was observed that notification provided exemption to the land belonging to K.P.T., as such, the lessee (Mrs. B.S. Khan could not invoke jurisdiction of the Rent Controller in respect of said land. In the instant case, learned counsel for the respondents has produced two copies of the lease deeds in favour of the respondents. The first one shows that the lease was granted by K.P.T. To the respondents for 50 years, commencing from January 1922. The second lease was for another 50 years effective from 9-1-1972. Thus, for all practical purposes, the respondents have legal right to use said premises for their benefit, including to let out the same on rent. Karachi Port Trust Authorities are not a party to these proceedings, nor they had any objection over the premises having been rented out to the appellants. Had they any objection, they would have challenged the act of the respondents before the Competent Court having jurisdiction in the matter.
16. ' It is significant to note that the appellants had not urged this point before learned Rent Controller, and even in the memo. Of appeal it was not specifically raised, but in haste on its last page in handwriting it was added that "even otherwise rent laws are not applicable upon the properties owned by K.P.T."
17. The notification dated 27-2-1967 reproduced earlier ceased to be operative when the Ordinance, 1979 was promulgated, as it did not emanate therefrom. This gets support from the fact that a fresh notification was issued under the Ordinance. The Notification dated 15-3-1981, quoted above, could not be retrospective i,e, it could not be effective from the date the eviction application was filed. On this point, a reference can be made to the case of Muhammad Nazir Ahmed v. The Lyallpur Improvement Trust, Lyalpur 1979 CLC 170 decided by Saad Saood Jan, J. (as he then was), wherein the following was observed: "3. The principles quite clear that a statute unless it expressly provides is not to be construed in a manner so as to affect proceedings which were pending at the time of its enactment. This principle is fully applicable to notifications issued under a statutory authority. I am, therefore, in agreement with the learned counsel for the appellant that the notification by which the properties vesting in Improvement Trust were taken out of the purview of the West Pakistan Urban Rent Restriction Ordinance did not affect the proceedings which had already been instituted and were pending disposal. The learned Additional District Judge, therefore, erred in dismissing the application of the appellant for the fixation of the fair rent on the basis of the said notification."
18. Under the circumstances, I hold that the Rent Controller had the jurisdiction in the matter.
19. Accordingly, the appeal is dismissed with no order as to cost. The appellants are directed to hand over vacant possession of the premises in question to the respondents within three months from now.