M.A. QAYOOM Versus ROSHAN SULTAN
This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) read with section 2(2) of Military Courts Validation of Orders Ordinance 1980 is directed against the order passed by the President Summary Military Court 'G' Karachi, dated 24th October, 1977 ordering the eviction of the appellant from the disputed premises bearing Flat No.28 of Jehangir House, Hussain D'Silva Gardens, Nishtar Road, Karachi.
2. The facts of the case as stated in the memo of appeal and at the bar are these. The Flat No.28 of Jehangir House was let out to the appellant by the respondent on a monthly rent of Rs.550. Upon promulgation of the Martial Law the respondent approached the President Summary Military Court for eviction of the appellant. A notice of hearing was issued by the said Court to the appellant on 15‑10‑1977 for appearance on 22‑10‑1977. The President Summary Military Court 'G' vide his impugned order referred to above recorded a decision for the eviction of the appellant from the said premises as stated above.
3. The appellant thereupon filed a Revision before the Martial Law Administrator under section 8 of MLO on 29‑10‑1977. Since no order was passed by the revisional authority on the above Revision Application, the applicant filed a Writ Petition being C.P. No. 39/78 in this Court on 9‑1‑1978. In the meanwhile the Governor of Sind promulgated Ordinance 1 of 1980 whereby it was provided in subsection (1) of section 2 as under:‑‑
"2. Validation of certain orders, etc.‑‑(1) Notwithstanding any order, judgment or decision of any Court, an order passed by a Military Court at any time on or after the sixteenth day of August 1977, in any proceedings under Martial Law Order No.29 made by the Martial Law Administrator Zone IC' shall be deemed to have been passed under the Sind Rented Premises Ordinance, 1979, as if the said Ordinance were in force at the time when such order was passed and shall have, and shall be deemed always to have had, effect accordingly."
When the petition came up for hearing before the High Court it was dismissed as the appellant had a right to file an appeal under the Sind Rented Premises (Amendment) Ordinance, 1980, (Ordinance II of 1980) promulgated on 21‑1‑1980. It is in these circumstances that this appeal has been filed by appellant against the order of the President Summary Military Court 'G' Karachi.
4. The learned counsel for the appellant assailed the impugned order before me on the following grounds:
(i) That the order is without jurisdiction inasmuch as the respondent being neither a widow nor a retired government servant had no right to file an application before the Summary Military Court. He also contends that the order is bad in law for having been passed in violation of principle of natural justice inasmuch as no chance of hearing was given to the respondent in that neither the application moved before the Summary Military Court by the respondent was supplied to him nor was he allowed to lead any evidence on the point.
The appellant on certain presumptions undoubtedly filed objections before the Summary Military Court but they were not strictly in reply to the application made as the copy thereof, as already stated, was not made available to the appellant. He states that the impugned order does not even made a mention of the grounds on which the application was presented before it. He also lashed an attack on the impugned order by contending that it is' absolutely bald and does not give any reason whatsoever for arriving at the conclusion that the appellant was liable to be evicted from the premises in question. He placed reliance on a decision of Lahore High Court reported in PLD 1975 Lah. 1385 wherein the expression "hearing" has been explained in order to show that no hearing was legally given to the appellant.
5. Mr. Khalilur Rahman, learned counsel for the respondent, on the other hand, contended that the application for eviction before the Military Court was actually made under section 2(f) of the MLO 20 which provides that "where the agreement between the landlord and the tenant had already terminated", an application before a Summary Military Court can be presented. He stated that it was on 1‑4‑1976 that an agreement of lease was executed between the appellant and the respondent No.l for one year. It expired on 31‑3‑1976 and hence the application was entertainable under section 2 (f) of MLO 20. He also drew my attention to the objections filed by the appellant before the Summary Military Court 'G', a copy of which was filed in the constitutional petition, wherefrom it appears that a copy of the application was made available to the appellant. With regard to the execution of the agreement dated 1‑4‑1976 he submitted that the respondent had in her counter‑affidavit filed in the above constitutional petition referred to it and a copy thereof was also filed. In order to show that the tenancy agreement had been executed between the parties and that it had stood terminated at the time of filing the case before the Summary Military Court he also referred to another annexure to the constitutional petition a letter dated 31‑7‑1977 from the respondent to the appellant wherein it is stated that "the tenancy agreement' had already expired and the rent for the last two months is overdue". The counsel then contended that the notice of this appeal has been served upon the appellant after remand of the case from the Supreme Court at an address of P . E. C . H . S . which clearly indicates that the respondent is not personally residing in the disputed premises. Making his submission with regard to the validity of the impugned order, the learned counsel submitted that the matter was heard by a Summary Military Court and a proper chance of adducing of the evidence and passing of a detailed order could not be expected as it is done by civil Courts. He sought to support his contention by referring to sections 5 and 6 of MLO 20 and further submitted that the requirement of law had been duly complied with.
6. In reply the learned counsel for the appellant contended that no doubt a copy of the agreement dated 1‑4‑1976 was filed in the constitutional petition but its execution was denied by the appellant and hence no reliance can be placed on the document. He further stated that even if it is taken into consideration then the agreement stood terminated on 31‑3‑1976, namely, earlier than the promulgation of the MLO 20, hence the appellant had become the statutory tenant. In this view of the matter clause (f) of subsection (2) of MLO 20 did not come into play. He further contended that the grounds on which the eviction was sought are not given in the impugned order nor there is any other document prevalent on record on the basis of which it could be ascertained that the respondent had in fact filed the application under section 2 (f) of MLO 20. On the contrary, he emphasised that the President Summary Military Court has made a reference in the impugned order that the entire arrears of rent may be paid which gives an indication that the ejectment was sought on the ground of default. He urged that the ground of default could not be agitated before the Summary Military Court. In order to further strengthen his submission he drew my attention to a statement made by the respondent in the counter‑affidavit filed in C.P.D‑39/78 wherein she has deposed:
"I submitted an application to Martial Law Authorities for ejectment of the petitioner on the ground of personal requirement of the above said flat and also default in payment of agreed rent."
7. M. Khalilur Rahman at this juncture pointed out that the agreement dated 1‑4‑1976 has also been referred in the earlier part of this counter‑affidavit which indicates that it was on the ground of termination of tenancy that the application was made.
8. Having heard the arguments of the learned counsel for the parties and upon perusal of the relevant provisions of law I am clearly of the opinion that the impugned order cannot be sustained for reasons more than one. In the first instance, there is no definite statement made in the impugned order that the application was in fact made under section 2 (f) MLO 20, secondly, the specific mention in the impugned order about the payment of arrears of rent clearly gives 'an impression that it was made on the ground of default. This fact thus finds support, as rightly pointed out by the learned counsel for the appellant, from the statement of the respondent made in her affidavit‑in‑rejoinder filed in C.P.D‑39/78 to which a reference has already been made above. Moreover, the impugned order is absolutely bald and does not give or assign any reasons for reaching the conclusion that the respondent‑applicant before the Summary Military Court was entitled to the relief prayed for. Since the law has made the orders of the Summary Military Court appealable under the Ordinance it is expected that the appellate Courts must be in a position to ascertain from the impugned order their validity, reasonableness and propriety. Unless reasons are assigned it is practically impossible for the appellate Courts to judge the propriety, legality and validity of the impugned orders passed by the Summary Military Court.
9. With regard to the objections raised by the learned counsel for the appellant that no hearing was allowed to the appellant, I am of the opinion that the proceedings having taken place in a summary manner before the Summary Military Court no such grievance can be made out in this behalf particularly when the appellant had filed objections before the Summary Military Court. At any rate from the objections filed there is nothing discernable that any objection was raised with regard' to the application for ejectment having not been made available to the appellant or that a further time was sought for to meet the case as set up against the appellant. This ground, therefore, does not find favour with me and I repeal it.
10. The upshot of the above discussion is that the impugned order suffers from patent illegality and, therefore, it cannot be allowed to stand and it is accordingly set aside. The parties shall, however, bear their own costs.
M.Y.H/M‑376/K Appeal allowed.