Mst. AMINA BEGUM AND Other vs Mehar GHULAM DASTGIR

1. MUHAMMAD AKRAM, J.-This is a petition for special leave from the order dated 28th of February ; 977, passed by a learned Judge of the Lahore High Court at Lahore whereby he dismissed in limine the S. A. O. No. 133 of 1977 filed by the petitioners herein against the respondent.

2. Briefly the relevant facts are that the Evacuee Shop No. 150, situated in Block No. 3, Main Bazar, Sargodha, was transferred to the respondent and the P. T. O. For it was also issued to him on the 8th of February 1965. On 7-5-1966 he sent the notice required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to the predecessor-in--nterest of petitioners Nos. 1 to 11 and petitioner No. 12. Afterwards on the 14th of November 1966 he filed the petition under section 13 of the Urban Rent Restriction Ordinance, 1959 for their ejectment from the premises on the grounds that they had failed to regularly pay or tender the monthly rent due from them, had impaired the value and utility of the rented premises and also because he bona fide wanted to reconstruct the shop in question. The respondents controverted these allegations and contested the application for their ejectment.

3. On the 5th of April 1972, after the necessary enquiry, the learned Rent Controller, Sargodha found that the petitioners did not commit any default in the payment of the rent due from them nor did they damage or impair the value and utility of the premises on rent with them. Moreover, in the opinion of the learned Rent Controller, this was an old dilapidated shop and was bona-fide required by the respondent for reconstructing the same. On this last mentioned ground therefore, the Rent Controller directed the ejectment of the petitioners. The appeal of the petitioners against the order was dismissed by the Additional District Judge, Sargodha on the 6th of January 1977. He agreed with the Rent Controller in holding that the respondent bona fide wanted to reconstruct the shop which was not in good shape. They also failed in second appeal which was dismissed in limine by a learned Single Judge of the High Court on the 28th of February 1977. Hence this petition for special leave.

4. For the first time before the High Court however, an altogether new objection was raised for the petitioners in the second appeal. It was argued that the shop having been transferred to the respondent under the Displaced Persons (Compensation and Rehabilitation) Act, the petitioners were entitled to the statutory protection against their ejectment for six years and that therefore, the Rent Controller had ab initio no jurisdiction to entertain and proceed with the ejectment petition, as filed against them on 14-11-1966, on this last mentioned ground that the premises in dispute was bona fide required by the respondent for reconstructing the same. But in repelling this contention the learned Single Judge observed that the property was transferred to the respondent in 1965 and he had served the statutory notice under section 30 of the Act on the petitioners and their predecessor --in-interest in 1966. Afterwards, in 1966 be filed the application for their ejectment under section 13 of the Urban Rent Restriction Ordinance, 1959 which was not decided until 1972. In the circumstances in the opinion of the learned Judge in Chambers, even if the petitioners had any such protection, it had ended by efflux of time during the pendency 'of the proceedings before the Rent Controller, which had lingered on for more than six years.

5. The cause of action had thus matured against the petitioners during the pendency of those proceedings and therefore, the order of ejectment could be passed against them provided the landlord had otherwise a good case against them on the merits. In arriving at this conclusion the Court relied on Manzoor Ahmad Khan v. Sayed Maqsood A.I (PLD 1975 Lah. 1521). The Court found that in the instant case there was overwhelming evidence in order to arrive at the conclusion that shop in dispute was an old and dilapidated one and that the respondent required the shop in good faith and reasonably for reconstruction and further remarked that if this case were to commence de novo after eleven years of the litigation, the result on account of this accepted position on the merits of the issue relating to reconstruction, would not be different. At any rate, in the opinion of the Court, on account of the amendment in the relevant law repealing the Displaced Persons (Compen--sation and Rehabilitation) Act, even this protection was withdrawn and was no more available to the tenants of these properties.

6. We have heard the learned counsel for the petitioners in this petition. He has laid stress before us to contend that the ejectment petition, as filed by the respondent on the 14th of November 1966 on the ground that the premises was required by him for reconstruction was ab initio incom--petent and should have been dismissed as such. Indeed, according to the learned counsel the admitted facts are that the P. T. O. For the property was issued to the respondent on 8-2-1965. The statutory notice of the transfer was served on the petitioners and their predecessors on or about 7-5-1966 and the petition for their ejectment was filed before the Rent Controller on 14-11-1965, inter alga, on the ground that the respondent required the shop reasonably and in good faith for its reconstruction. On these admitted facts, in support of his objection the learned counsel relied on the proviso (b) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, to contend that the respondent as transferee of the evacuee shop could not get the petitioners ejected for a period of six years from the date of the notice of the transfer and therefore, the Rent Controller had no jurisdiction to entertain the petition prematurely for their ejectment on this ground. In this connection the learned counsel strongly relied on the reported case in Abdul hashir v. Muhammad Rafig Khan Sherwani (PLD 1974 Kar. 451) in his favour.

7. But in the instant case, as already stated above, the learned Judge in Chambers in this connection observed that if the appellant had any such protection for period of six years, it had elapsed during the pendency of the proceedings before the Rent Controller, while the cause of action had thus matured in favour of the respondent in the meantime and relief could be suitably moulded taking into consideration the subsequent develop--ment in order to avoid multiplicity of litigation and shorten the proceedings in the interest of justice.

8. PLD 1971 SC 82) this Court observed that the ordinary rule is that the rights of the party must be determined as on the date of the suit and not on the basis of rights which accrued to them after the institution of the suit. However, in Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698) this Court expressed the opinion that it was not bound to take notice of events subsequent to the institution of the suit though it has discretion to do so. Similarly in Karamat All and another v. Muhammad Yunus Haji and others (PLD1963SC191) the relevant facts were that the plaintiff-appellant had brought the suit for a simple declaration and failed to sue for the consequential relief for the delivery of the possession evidently in order to avoid the payment of ad valorem court-fee. In spite of this, this Court in folio Ning the dictum of the Judicial Committee of the Privy Council in Muhammad Zahoor .911 Khan v. Mst. Thakooranee Rutta Koer (11 MIA 468) and Charan Das and others v. Amir Khan and others (AIR 1921 PC 50), allowed the amendment as in the particular circumstances of the case it would have been plainly inequitable to refuse such a relief and result in great hardship to defeat the right merely on a technical ground. In Lachmeshvvar Praszd Shukul and others v. Keshwar Lai Chaudhuri and others (AIR 1941 FC 5) it was held that where the facts were not in dispute and the accrual of a cause of action subsequent to the suit was under the terms of a statute of which the Courts must take notice, a formal amendment of the plaint was unnecessary, for the Court was bound to administer the law of the land at the date when it gave its decision on a dispute. The dictum in the case was followed in Lakshmi Ammal and others v. Narayanaswa mi Naicker and others (AIR 1950 Mad. 321). In that case on a detailed review of the case-law it was observed that the ordinary rule is that a Court should give its decision on the facts and circumstances as they existed at the date of the institution of the suit or at the date of any subsequent amendment of the pleadings and should not take notice of events or decisions which have happened after such date. But if a cause of action not available on the date of the suit accrues during its pendency, the Court in its discretion may grant an amendment of the plaint so as to enable the plaintiff to include the fresh cause of action. Where however, the facts are not in dispute and the accrual of a cause of action subsequent to the suit is under the terms of a statute of which the Courts must take notice, a formal amendment of the plaint is unnecessary, for the Court is bound to administer the law of the land at the date when it gives its decision on a dispute.

9. An appeal being in the nature of a rehearing of the case the Court in second appeal can consider the effect of legislation which came into force after the disposal of the suit by the trial Court and during the pendency of the appeal in the appellate Court. In Abdullah Bhai and others v. Ahmad Din (11 MIA 468) an argument was advanced before the Supreme Court to the effect that the suit was premature and should have been dismissed on that ground. But in repelling the contention the Court observed :- "The suit had been filed on 17-1-1958 that is long before 31-12-1959 on which date the period of the licence was to terminate. The- trial Court had dismissed the suit. The Additional District Judge on appeal had decreed it on a date when the period of the licence had expired and the appellants had a right to possession. It was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. We would not be prepared at this stage to dismiss the suit on this technical ground to direct the appellant to file a fresh suit."

10. "We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered."

11. It was pointed out by Mr. Justice Gray in Mills v. Green ((1895) 159 U S 165) that the right to take notice of the subsequent events is not only a power but may also some--times be the duty of the Court to do so.

12. "Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made." "we cannot agree with him (Subordinate Judge), as he has overlooked the elementary rule that a plaintiff who seeks possession must show that at the date of the suit he was entitled to such relief". Similarly in Rangayya Naidu v. Bassana Simon and others (AIR 1926 Mad. 594) it was held that a party suing for possession must show that on the date of the suit he was entitled to the relief and a suit for redemption of a usufructuary mortgage, which is premature, cannot be decreed on the period of the mortgage expiring during the pendency of the suit. In such a case the only course is to dismiss the suit with liberty to bring a fresh one on a proper cause of action.

13. But this view was not followed and even dissented from in some other and also more recent cases from the Madras High Court. In Doraisami Pillai v. Chinnia Goundan (AIR 1918 Mad. 272) the Court observed to drive the plaintiff in every such case to a fresh suit would impose undue hardship on the litigants in India. In Appalasuri v. Kannamma Nayurala (AIR 1926 Mad, 6) on a full discussion of the earlier reported cases, the Court held that "events that happen even after the filing of the suit including those that add to the title of the plaintiff may be taken notice of "and that the amendment ought, as a general rule, to be allowed to avoid multiplicity of proceedings. In Thimmayya v. Siddapa (AIR 1925 Mad. 63) it was held that although the plaintiff had no right of suit at the date of institution, but he acquired the right through inheritance before the disposal of the suit, the right of suit could be recognised even without formal amendment. In A. N. Shah v. A.

14. Annapurnamma (AIR 1959 Andh. Pra. 9) it was strenuously contended for the appellants that as the lease had expired only two years after the institution of the suit, she was not entitled to claim any relief on that fresh cause of action. But the Court was not impressed by the contention and held that the amendment was properly allowed by the trial Court in that behalf. In arriving at the conclusion the Court observed that : "It is now well-settled that in proper cases the Court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice". The Court on a detailed examination of the case-law was of the opinion that the reported case in Ramgayya Naidu v. Basanna Shnon was no longer good law and also did not follow the ratio in Ramanandan Chetti v. Pulikutti Serwai as its.

15. Authority was qonsiderably shaken by the several decisions to the contrary.

16. Indeed in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice.

17. PLD 1963 Lah. 390) a Full Bench of the former West Pakistan High Court at Lahore, observed that even assuming that the tenant was entitled to the statutory protection under the proviso (b) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act at the time of the institution of the ejectment petition by the landlord, it had lapsed during the pendency of the proceedings in January 1962 and therefore "his (tenant's) objection ceased to be valid, even if it was well-founded to start with". These observations are no doubt pertinent although on facts this case is distinguishable from the one in hand.

18. PLD 1971 Pesh. 236) the provisions contained in section 17 of the Cantonments Rent Restriction Act (X of 1963), which in effect corresponds with section 13 of the Urban Rent Restriction Ordinance, 1959, read with the proviso (b) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 came under discussion before a Division Bench of the High Court of Peshawar in almost similar circumstances and the Court observed that "this development, which has taken place during the pendency of the proceedings, can be taken due notice of by this Court, con--sequently it would be wholly unjust to dismiss the eviction application at this stage on a technical ground that when it was filed the period of six years had not expired". In support of this view the Court relied on the observations reproduced above from the judgment of this Court in Abdullah Bhai and others v. Ahmed Din.

19. But a learned Single Judge of the High Court of Sind & Baluchistan in Abdul Bashir v. Muhammad Rafiq Khan Sherwani (PLD 1974 Kar. 451) has dissented from the ratio laid down by the Division Bench of the High Court of Peshawar in aforementioned case. In this case the evacuee premises in dispute was transferred to the appellant and on 30-1-1961 he served a notice on the respondent as required under section 30 of the Displaced Persons (Com--pensation and Rehabilitation) Act, 1958.

20. Afterwards on 8-5.1965 he filed the ejectment application against the respondent on the grounds that he was defaulter in the payment of the rent due from him and also because he required the premises for his own personal use. But the Rent Controller dismissed the application on both the grounds. He also failed on appeal rejected by the appellate authority. In the second appeal also the High Court concurred with the authorities below in holding that the respondent was not a defaulter in the payment of the rent and therefore, not liable for ejectment on this ground.

21. He accordingly argued that the period of six years for which the protection was afforded to him under the law having already expired the tenant was therefore, liable to be ejected from the premises. But the learned Judge in Chambers repelled the contention and refused to rely on the decision by the Peshawar High Court in the reported case of Messrs Waheeduddin & Sons v.

22. Controller of Rents. According to him the observations (reproduced above) by this Court in the case of Abdullah Bhai and others v. Ahmad Din were made in respect of a suit instituted upon a licence for a fixed period and they were hardly apposite in the context of the relevant provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. Iii his opinion :- "In the case of a tenant who is entitled to protection under clause (bi of the proviso to subsection

(1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, not only is the transferee landlord debarred from ejecting the tenant on the ground of requiring the premises for his personal occupation so long as the period of protection has not expired, but even after the expiry of the said period, he can only eject the tenant in accordance with the provisions of the law regulating the relationship of landlord arid tenant. In this connection the provisions of subsection

(4) of the above section are relevant."

23. The learned Single Judge, further observed that a bare perusal of this subsection (4) of section 30 of the Act makes it clear that the provisions of the Urban Rent Restriction Ordinance, 1959, at least regarding the ejectment of a tenant, would not become applicable in respect of a tenant entitled to protection under subsection (1) of section 30 of the aforesaid Act until the period of protection has expired or when the protection is lost. If the relationship of a transferee-landlord and a tenant entitled to protection under the aforesaid Act is only to be regulated under the Ordinance after the expiry of the period of protection or when the protection is lost, the landlord cannot apply under the Ordinance before the expiry of that period or before the tenant has lost the protection. In other words such an application could not be entertained by the Controller during the subsistence of the protection. The making or entertainment of such an application would be a proceeding under the Ordinance and since the Ordi--nance is not to apply during the subsistence of the protection, such proceedings would be in contravention of the express provisions of section 30 of the Act. The learned Judge in Chambers observed that the provisions in subsection (4) of section 30 of the Act were not brought to the notice of the learned Judges of the Peshawar High Court in Messrs Waheeduddin & Sons v. Controller of Rents. In conclusion therefore, be refused to entertain the ejectment application filed on thin ground by the appellant against the respondent during the subsistence of the period of protection extended to him against any such action and dismissed it as premature and incompetent.

24. Act, 1958. It is ab initio incompetent and must necessarily be dismissed as premature even after the period of protection enjoyed by the tenant has already expired or the protection was otherwise lost. According to this view there is no other option for the Rent Controller and the appellate authority . In such a case. But this view propounded by the learned Judge in Chambers runs counter to observations made by this Court in Abdullah Bhai and others v. Ahmad Din to the effect that it was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. In my opinion in principle the ratio laid down in this authority is fully attracted to the facts in the instant case. However, the learned Judge in Chambers has distinguished this case, although with due deference, if I may venture to say so, without any difference. It further appears to me that his attention was also not drawn to the pertinent observations by the Full Bench of the High Court of West Pakistan in Akhtar A.I Pervez v. Akhtar Rehman to the effect that the statutory protection under the proviso (b) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 in favour of the tenant had lapsed during the pendency of the proceedings and therefore his objection in this connection ceased to be valid, even if it was valid in the beginning. Similarly in Manzoor Ahmad Khan v. Syed Maqsood All, also a case under section 13 of the Urban Rent Restriction Ordinance' 1959 read with the provisions contained in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, reliance was placed on the ratio laid down by this Court in the above-cited authority in Abdullah Bhai and others v. Ahmad Din and it was held that the ejectment application which was premature when it was filed but the cause of action respecting which had arisen during its pendency could be entertained and proceeded with after the cause of action had thus matured.

25. I have considered this aspect of the case. Needless to recall here that the appellant had filed the ejectment application against the respondent on the two-fold grounds that he was a defaulter in the payment of the rent due from him and also because the landlord required the premises for his personal use. Therefore, per se on these averments the application a laid under section 13 of the Ordinance for the ejectment of the respondent was competent and could to entertained. It could not be held on these allegations that The ejectment application was ab initio incompetent, and dismissed straightaway without any enquiry into them. Indeed, in this C connection the statutory protection granted to the occupants of the evacuee property is not absolute and is dependent upon the fulfillment of certain obligations cast on them as provided in subsection (3) of section 30 of the Act. It lays down that nothing in proviso (b) to subsection (1) of section 30 shall apply to a tenant-

(i) who has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by Registered Post (acknowledge--ment due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer ; or

(ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop or any part thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop, who in any Urban Area within the same town or city, owns a house or shop, as the case may be."

26. Therefore, in accordance with these provisions, a tenant who is a defaulter in the payment of the rent due from him is deprived of the protection against his ejectment to which be was entitled under proviso (b) of sub--section (1) of this section and in accordance with subsection (4) on the loss of this protection ordinary law of the land including the provisions D contained in the Urban Rent Restriction Ordinance are attracted and shall come into play to regulate the relations between the parties. This was even conceded by the learned Judge in Chambers in his judgment under discussion. However, with due deference to him, in these circumstances I would like to add that on the two-fold allegations in the ejectment petition that the tenant was a defaulter in the payment of the rent due from him and also because the landlord reasonably and in good faith required the premises for his personal use and occupation, it could not be. Held that the petition as laid did not disclose any cause of action, or was ab initio incompetent and could not be entertained. Indeed the Rent Controller was bound to hold an enquiry into the merits of these allegations under the Ordinance. In the circumstances it could not be legitimately held that the right to sue on those allegations had accrued to the landlord only after the institution of the ejectment petition against his tenant. In the light of the law already discussed . Above, the Rent Controller and the appellant authorities under the Ordinance, in exercise of the discretion vested in them, are not precluded to allow any bona fide amendments and take note o subsequent events in order to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten) the proceedings.

27. Now reverting to the facts in the instant case before us, to start with the ejectment application was filed by the respondent against the petitioners, on the grounds that they had committed default in the payment o rent, bad impaired the value and utility of the premises and also because he wanted to reconstruct the shop in question. On these allegations therefore, this application as laid was competent and could be enquired into. During the pendency of the application even the statutory period of protection against the ejectment of the petitioners under proviso (b) to subsection (1) of section 30 had also elapsed and the High Court in exercise of the discretion vested in it found that the shop in dispute was old and dilapidated one. Actually on a complaint the condition of the structure bad been declared as dangerous and in that connection Municipal Committee had also launched proceedings against the landlord and the tenants. In the opinion of the High Court there was overwhelming evidence available on the record to arrive at the finding that the landlord reasonably required the premises in good faith for reconstruction and that there was no justification for interference with the concurrent findings of fact recorded by the authorities below in that behalf. In this connection the Court further observed that the ejectment application was filed in the year 1566 and was eventually decided by the Rent Controller after six long years in the year 1972. If the case were to commence afresh after the 11 years of this litigation by the 28th of February 1977 when the impugned order was passed by the High Court, the result on account of the accepted position on the merit of this issue would not be any different.

28. For the foregoing reasons we see no force in this petition which is hereby dismissed.

29. S. A. H.