SALEEM AKHTAR, J.---This appeal, with special leave of this Court, challenges the judgment of the learned Judge in Chamber of the High Court of Sind whereby the respondent's appeal against the order of the Controller who had dismissed the ejectment application was allowed.
2. The dispute relates to a building bearing No.20-CL. 6, Civil Lines, Karachi, which was rented out to the appellants on 26-4-1976. The respondents filed ejectment application under section 14 of the Sind Rented Premises Ordinance (hereinafter referred as 'the Ordinance') on the plea that they have attained the age of 60 years and bona fide require the premises for their own personal use. It may be mentioned that respondent No.2 attained the age of 60 years in the year 1963 while respondent No.3 attained the age of 60 years on 18-9-1975. Respondents Nos.2 and 3 served a notice under section 14 of the Ordinance but as the premises was not vacated the respondents filed application for ejectment on 16-7-1983. The learned Controller rejected it against which the respondents filed an appeal in the High Court of Sind which was allowed by the impugned judgment. Leave was granted to examine the nature, the extent and the scope of the retrospectivity of the provision to section 14 of the Sind Rented Premises Ordinance, 1979, as originally enacted and as substituted by Ordinance XII of 1980 in the light of the decision in Mumtazuddin Ahmed v. Sultan Jehan Begum, C.P.L.A. No.34 of 1984.
3. The issue in this appeal requires interpretation of section 14 of the Ordinance. Section 14 as originally enacted reads as follows:----- "14. Delivery of vacant Possession.--(l) Notwithstanding anything contained in this Ordinance or any other law for the the being in force, the landlord of a building who is a widow or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such the as may be specified in the notice, not being earlier than to months from the receipt thereof: Provided that nothing in this subsection shall apply where more than six months have elapsed since the landlord has retired or attained the age of sixty years or, as the case may be, has become widow or orphan.
(2) The landlord shall not be entitled to avail the benefit of sub-section (1) if he is in possession of a building owned by him in any locality.
(3) Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary."
Thereafter, amendment was made by Ordinance XII of 1980 by which the first proviso was substituted by the following proviso: "Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of 60 years or, as the case may be, has become widow or orphan."
4. Mr. S. S. Pirzada, the learned counsel for the appellants, contended that as the original proviso provided a period of six months for exercising right under section 14 by landlords who had attained the age of 60 years on the commencing day and the right not having been exercised till the expiry of six months, a vested right was created in favour of the appellants not to be ejected in pursuance of section 14. Mr. Farooq Naik, the learned counsel for the respondents, contended that as by the original proviso a clog had been imposed on the respondents no vested right was created in favour of the appellants. A perusal of the statutory history of section 14 will show that sub-section
(1) provided that notwithstanding anything contained in the Ordinance or any other law the landlord who is due to attain the age of 60 years within the next six months or has attained the age of 60 years' could claim ejectment under section 14. But by the original proviso landlord who had attained the age of 60 years before the promulgation of the Ordinance was required to invoke this right within six months. Therefore, the right vested in the landlord was clogged by the proviso by placing the the limit. The right itself was not wiped out. When the original proviso was deleted and substituted by present one the clog was removed and the restriction was placed that it cannot be invoked if the landlord has rented out the building after he has attained the age of 60 years .
Therefore, any landlord who has attained the age of 60 years and after the accrual of right under section 14 rents out the building he will be deprived of the remedy provided under section 14. In this regard reference can be made to Bakhsh Illahi v. Asif Ali and others (1985 SCMR 291), where the following observation was made:-- "Now the provision under discussion is new having no previous parallel in any of the legislation on the subject and is indeed a departure from the previous legislation in this field. The manifest object of the law--maker appears to be to facilitate the specified class of persons, namely, widows, minor orphans whose both parents are dead, salaried employees due to retire within the next six months or those who have already retired and persons who are due to attain the age of sixty years, within the next months or who have attained the age of sixty years to obtain possession of rented premises belonging to them by means of the summary procedure. In the case of this special class of landlord the law presume the urgent need of the landlord in the contingencies set out, on the happening of which the right thereby created is accrued. This intention is clear from subsection (2) of section 14 which has the effect of withholding the benefit created by this provision if the landlord is in occupation of a building owned by him in any locality. The object of section 14, therefore, seems to be to relieve this class of landlords from the rigorous of an elaborate inquiry, as to the good faith of their plea for requirement of the premises for personal use and to put them in possession thereof in the shortest possible the.
The clear intendment of the law as it stood before the amendment was that the landlord was required to invoke the benefits of subsection (1) of section 14 within a period of six months from the date of retirement or attaining the age of sixty years or becoming a widow or orphan. Apparently there could be no ambiguity regarding the interpretation of subsection (2) as construed in the foregoing part of this judgment at that the. The disqualification contained therein clearly referred to the date when the contingencies mentioned in subsection (1) in its main enacting part happened, with the result that if at that the the landlord was in occupation of a building owned by him in any locality, the special privilege conferred by subsection (1) did not accrue to him and the purpose of the proviso to subsection (1) only was to provide a the limit for the subsistence of the privilege for a period of six months if the privilege did accrue. In this context of the legislative background, the only change brought about by the amendment was to remove the the limit originally stipulated and exclude the application of subsection (1) in case the landlord rents out a building after the accrual of the right and forfeit the same. In fact subsection (2) visualizes the situation where a landlord is already in occupation of a building of his own when the rights conferred by subsection (1) accrue or continue to vest and the proviso to subsection (1) as amended deals with the situation after the accrual of the rights where the landlord rents out a building after the happening of the contingencies mentioned above."
The learned counsel for the respondent has referred to Muzaffar Ali v. Tauqir Alam Akhtar and others (PLD 1983 Karachi 445) in which it was observed that:---- "by substituting the new proviso in place of the old one the embargo put by the old proviso on the right of the landlord which was otherwise available to him under the main section was removed and he became entitled to exercise that right subject only to those conditions which were now laid down in the newly-added proviso."
In these circumstances the question of vested right on deletion of the old proviso to section 14, subsection (1) does not arise.
7. The learned counsel for the appellant contended that the deletion of the original proviso to subsection (1) of section 14 has the effect of repeal and as no steps were taken by the respondent during six months the vested right cannot be taken away. The learned counsel referred to Bindra on Interpretation of Statutes, 1985, 8th Edition, page 159, Kr. Ramanathan Chettiar by partner in Kr.
Lakhshmanan Chettiar v. N. M. Kandappa Gowndan (died) and others, (AIR 1951 Madras 314) and Bhagat Ram Sharma v. Union of India and others (AIR 1988 SC 740), which support the contention that deletion has the effect of repeal and results flowing from repeal will be applicable. In this regard reference was also made to section 6 of the General Clauses Act as well. It is a settled principle that where any provision is repealed and replaced by another provision then unless the intention is clear such amendment will not affect the vested right. But where the substituted provision indicates to the contrary, as in the present case, the vested right, if any, cannot remain unaffected. The amendment made in section 14 by adding a new proviso in place of the original proviso clearly indicates an intention contrary to the effect that any right has been saved. In fact by removing the embargo placed on the general right of the landlord conferred by section 14(1) the scope has been widened and even those category of persons who otherwise in view of the old proviso could not have invoked section 14 were entitled to exercise this right subject to the limitations provided by the substituted proviso and other subsections. Reference can be made to Mirza Akbar Ali v. National Bank of Pakistan (1986 SCMR 321).
8. The question whether the provision is prospective or retrospective should not detain us although a lot of controversy has been generated on this aspect of the case. We are, however, of the view that section 14(l) will be applicable to persons who have attained the age of 60 years before the promulgation of the Ordinance. We may here refer to an unrepdrted judgment of this Court in Mumtaz Ahmed v. Mrs. Sultana Jehan Begum (CPSLA No.34 of 1981) relied upon by Mr. Farooq Naik where it was observed:-- "The second contention of the learned counsel for the petitioner was that the respondent landlady had rented out another flat to one Mansoor in the year 1974 and she was, therefore, under the proviso to section, 14, reproduced hereunder, not entitled to have recourse to summary eviction procedure:-- 'Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of 60 years or, as the case may be, has become widow or orphan.'
The argument overlooks the fact that the respondent landlady had no right to seek summary eviction on the ground that she had attained the age of sixty years when she rented out another flat to one Mansoor, for the Ordinance was enacted in the year 1979 and the proviso referred to above, was added in the year 1980. To accept the argument of the learned counsel would mean to give retrospective effect to the Ordinance, which is not its intent and it must, therefore, follow that the limitation contained in the said proviso will operate upon facts coming into existence after the landlady had become entitled to seek summary eviction under subsection (1) of section 14 of the Ordinance."
9. The learned counsel for the appellants contended that respondents Nos.2 and 3 having let out the demised premises to the appellants after having attained the age of sixty years stood debarred from availing the benefit of section 14 of the Ordinance and waived and acquiesced in their right, if any, and are estopped from invoking section 14. While elaborating this argument reference was made to the principles of interpretation applied to section 14 in Hassan Askari Rizvi v.
Muhammad Aziz (PLD 1989 SC 1) which calls for strict interpretation while Rana Muhammad Akram through Legal Heirs v. Tufail Ahmed and others (1991 SCMR 1688) and Iqbal Yousuf v. Kishwar Jehan (1991 SCMR 864) favour a liberal interpretation. -In this regard reference can also be made to Bakhsh Illahi (supra). Once a landlord is qualified to invoke section 14 a liberal interpretation should be given in a manner that remedy may not be frustrated on technical grounds. According to the learned counsel for the respondents renting out the premises by a landlord who has attained the age of 60 years before the promulgation of the Ordinance will not debar him from invoking section
14. The learned counsel referred to Hassan v. Fancy Foundation (PLD 1975 SC 1) where material changes made in section 13 of West Pakistan Urban Rent Restriction Ordinance were held to be prospective and not retrospective and it was observed as follows: "There, however, appears to be substance in the second limb of the argument of the appellants' learned counsel, namely that in the circumstances of the case, the advantage under newly- inserted subsection (5-B) will be available to the appellants. The subsection will come into operation in these cases after the ejectment of the appellants and reconstruction of the building which have yet to take place. 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 enactment of the subsection. The following English cases are in point.
Section 2 of the Poor Removal Act, 1846 provided: 'No woman residing in any parish with her husband at the the of his death would be removed ...From such parish for 12 calendar months---next after his death, if she so long continues a widow.''
In R. v. Inhabitants of St. Marry White Shappel (1848 12 QB l20), it was sought to remove within 12 months' period a woman, whose husband had died before the Act passed, on the ground that to make the section apply in such a case was to construe it retrospectively, the right to remove being vested right which had occurred on the man's death.
Lord Chief Justice Denman, however, observed 'that the statute is in direct operation prospective, as it relates to future removals only and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from the antecedent to its passing.'
The case of Re. (A Solicitor's Clark) (1957) 1 WR 1219 is even more instructive. In that case, the clerk was convicted in 1953 on four charges of larceny, but the charges did not relate to money or property of his employer or his employer's client and so an order prohibiting the solicitor from employing him could not be made under the provisions of section 16 of the Solicitors' Act, 1941. The Solicitors' (Amendment) Act, 1957, by section 11 amended section 16, so as to include convictions of larceny irrespective of ownership. Lord Chief Justice Goddard held in that case that the amendment was not a true retrospective provision. With reference to the amendment it was observed ' it enables an order to be made disqualifying a person acting as a solicitor's clerk in the future and what happened in the past is cause or reason for the making of the order but the order has no retrospective effect...'This Act simply enables a disqualification to be imposed for the future and in no way affects anything done by the appellants in the past."
The learned counsel has referred to In R. v. Inhabitants of St. Marry, White Shaffle (1848) 12 QB 120. In re: School Board Election. For Farish of Aulborough Bourke and others v. Nutt (1894) 1 QBD 725. In re: Athlumney 1898 QBD 547 and Kraljevich v. Lake View and Star Limited, 70 CLR 647 (High Court of Australia). Following the observations in Fancy Foundation (supra) we are of the view that section 14 is prospective.
10. It was next contended that as no period for filing ejectment application has been prescribed under section 14 it should be filed within a reasonable the. The thrust of the argument was not as the ejectment application was filed on 16-7-1983 it was beyond reasonable the and should be rejected. Admittedly the Ordinance has not fixed any period of limitation for filing application under section 14. The limitations to the right conferred by section 14(1) of the Ordinance are provided by the proviso to it and subsection (2). Therefore, any limitation which is not provided by the Ordinance cannot be imposed which will amount to frustrating the remedy made available to special class of landlords. In Hafiz Abdul Malik v. Muhammad Ilyas (PLD 1989 SC.356) leave was granted to consider whether the appellant who had attained the age of sixty years in 1968 and filed ejectment application in 1983, was entitled to evict the tenant under section 14 of the Ordinance. It was held: "The present rent application was filed by him on 25th June, 1983, and that under section 14 of the Ordinance since there was no the limit fixed, the application of the appellant, for the eviction of the respondent was maintainable and he should have been granted the benefit of the provisions of the said section."
The principle and interpretation as enunciated in this judgment is in consonance with the object and intention of the Statute. No landlord can be debarred from invoking section 14 on the plea that he had attained the age of sixty years before the promulgation of the Ordinance or that he has filed ejectment application after a long the from attaining the age of sixty years.
11. The next contention was that from 1-9-1980 the tenancy was from month to month and as rent was accepted every month the respondents shall be deemed to have rented out every month. On this premises as they have attained the age of sixty years, they are debarred from filing application under section 14. By accepting rent every month new tenancy is not created. In Muhammad Khan and others v. Yaqoob Ali and others, (1988 SCMR 1524) it was observed that: by mere alteration of terms of tenancy new tenancy is not created. The rent is accepted every month either under the agreement or as provided by the Ordinance. By such acceptance of rent the existing tenancy remains in operation and does not make way for a new tenancy every month.
12. The appeal is, therefore, dismissed. As the appellant is running a school in the demised premises in order to avoid any loss of education to the students we allow the appellant to vacate and hand over vacant possession on or before 31-12-1992. .