ABDUL SATTAR Versus MUHAMMAD UMAR

1. This first rent appeal is directed against the order dated 3‑5‑1987 passed by Ilnd Senior Civil Judge, Karachi (West).

2. Brief facts are that Muhammad Umer, landlord filed Rent Case No.1908/1981 under section 15 of the Sind Rented Premises Ordinance, 1979, in which he stated that period of tenancy expired in February, 1981 and in terms of the agreement he is entitled to have the vacant possession. The Rent Controller allowed the rent application by an order, dated 3rd May, 1987. The appellant, being aggrieved, has filed this first rent appeal.

3. I have heard Mr.Abdul Lateef A.Shakoor, Advocate for the appellant. The contention of the learned counsel is that rent application has become infructuous in view of .the Ordinance, dated 30‑7‑1984, whereby section 6 was deleted. He has referred to the cases reported in 1987 M L D 179, 1987 M L D 877,PLD1982SC396,PLD1981 SC340and1986CLC1613.

2. Mr. Mustafa Lakhani, appearing for the respondent, argued that at the time of agreement, law was clear and section 6 of the Sind Rented Premises Ordinance was in existance, therefore, the appellant cannot take the benefit of the repeal of the Ordinance. He has referred to the cases reported in P L D 1971 SC253,PLD1969SC599,PLD1985SC376,1986CLC1613andPLD 1965 S C 453.

4. The relationship and the rate of rent is not disputed. The tenancy agreement dated 1‑4‑1980 is not disputed but it is averred that agreement was not attested as required by provisions of section 5 of the Sind Rented Premises Ordinance, 1979. The tenancy was for 11 months from 1‑4‑1980 to 29th February, 1981. The. rent case was filed on 20th April, 1981 by the time tenancy agreement has expired. The agreement is attested by 1st Class Magistrate. It has been produced as Exh.4, therefore, appellant cannot get the benefit of section 5. Under clause (4) of the agreement the appellant, on the expiry of 11 months, was to hand over the vacant possession to the landlord.

5. Now I come to the cases cited by Mr.Abdul Lateef A.Shakoor. In case of Hans Raj v. Mrs. Zahida Ali reported in 1987 M L D 179, it has ‑been held that when the clause conferring the right of eviction was deleted and proceedings under this clause were pending on the date of such repeal, the landlord would have no accrued right. In the case of Syed Waris Imam v. Kanwer Masood Ali Khan, reported in 1987 M L D 877, it has been held that Rent Controller is competent to pass eviction order on the expiry of tenancy, but before the omission of the provisions. The reliance is placed on P L D 1965 S C 453. In case of Mst. Jaleesa Begum v. Iqbal Ahmed Oureshi reported in P L D 1982 S C 396, it has been held that with the repeal of the Repealed Act: the protection itself disappeared. In case of Muhammad Ramzan v. Ch. Bashir Ahmed reported in P L D 1981 S C 340, it has been held that section 30 of the Displaced Persons Act having been repealed, the petitioner was not entitled to any notice of protection.

3. Mr. Mustafa Lakhani, appearing for the respondent contended that the amendment in the enactment could only be applicable and affect the procedure and not the vested right. In case of Mian Rafiuddin and others v. Chief Settlement and Rehabilitation Commissioner and 2 others, it has been decided as under:‑‑

4. "By the said Notification, which is of general application, the Central Government prescribed certain entirely new conditions of eligibility for claiming transfer of industrial concerns and cinema houses, but the Notification itself did affect transfer of any particular industrial concern or cinema house. The question then arises whether these new conditions of eligibility prescribed by the said Notification will be applicable in the appellants' case which was pending for adjudication at the time of making of the Notification or whether they affected their right of action. It is well‑settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of procedure or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, page 400 is as follows:

5. `It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action.'

6. There is a long line of authorities in support of this proposition of law. It is not necessary to refer to all these decisions, for I think it would be sufficient to quote some passages from a recent judgment of this Court in Adrian Afzal v. Sher Afzal, which was delivered by my Lord the Chief Justice. These passages which clearly restate the well‑settled legal principles run thus:

7. `The general principle with regard to the interpretation of statutes as laid do an in the well‑known case of the Colonial Sugar Refining Company Limited v. Irving 1905 A C 369 is that' if the matter in question be a matter of procedure only', the provisions would be retrospective. `On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then `in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either `by express enactment or by necessary intendment' given the legislation retrospective effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Limited (1875) 1 Ch. D 48, where it was observed that as a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect precedure and do not extend to rights of action, they have been held to apply to existing rights.'

8. With regard to matters of procedure it was observed in the same judgment as follows:‑‑

9. `Nevertheless, it must be pointed out that if in this process (i.e., in giving retrospective effect to new law relating to matters of procedure) any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then, the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute'."

10. On this point the case of Nabi Ahmed and another v. Home Secretary, Government of West Pakistan and 4 others, reported in P L D 1969 S C 599, is also relevant. In case of Idrees Ahmed and others v._Haji Fida Ahmed Khan and 4 others, reported in P L D 1985 S C 376, it has been held as under:‑‑

11. "5. The general rule as to the effect of repeal of a statute, was postulated as early as 1829 by Lord Tenterden thus: `When an Act of Parliament is repealed it must be considered (except as to transactions past and closed) as if it had never existed. The effect of repealing a statute is to oblaerate it as completely from the records of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law.' This rule came to be statutorily recognised in section 38(2) of the Interpretation Act, 1889.

12. In the Law of our country analogous provision to that effect exists in section 6 of the General Clauses Act, 1897. The effect of repealing an Act passed after these statutes of general application is now governed by the saving provisions of these statutes. Thus, by the force of clauses (c) and (e) of section 6 of the General Clauses Act, unless a different intention appear from the repealing enactment, the repeal ipso facto will not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; affect any investigation, legal proceedings 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 enactment had not been passed. On the question whether a right of appeal given under the repealed enactment is such a right which survives the repeal we have the leading judgment from the English jurisdiction in The Colonial Sugar Refining Company Limited v. Irving. In this case although the right of appeal from the Supreme Court of Queensland to his Majesty‑in‑Council given by the repealed law, had been taken away by the repealing enactment, which provided only an appeal from the Supreme Court of Queensland to the High Court of Australia, yet the Act not being retrospective; the Privy Council ruled that a right of appeal to the King‑in‑Council in a suit pending when the (repealing) Act was passed and decided by the Supreme Court afterwards was not` taken away. The principles enunciated in this case have held the field in this country and have been consistently followed by this Court. In a recent pronouncement of this Court Pakistan

13. International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners, reference was made to the cases of this Court in which these principles laid down by the Privy Council were approved and it was observed that this proposition of law has now been firmly deep rooted. in our legal system'. The proposition that all the rights to remedy by way of appeals or otherwise under an enactment stand vested and accrued to the litigating parties on the date of the commencement of the lis, is, therefore, not open to challenge, unless of course the repealing enactment, either expressly or by necessary implication, curtails such rights in any manner.'

14. 6.When the rent application was filed, section 6 of the Sind Rented Premises Ordinance, 1979 was in existence and it has been omitted in the year 1984 and at that time the rent application was pending and no such point was raised in the written statement, which was filed on 31st July, 1982. The repeal of section 6 was not retrospective and repeal is not a matter of procedure. As such the respondent is entitled to relief in view of the agreement as stated above. The Rent Controller has rightly decided the case in favour of the respondent.

15. For the reasons stated above, this appeal is dismissed.

16. H.B.T./A‑464; K A peal dismissed.