IDREES AHMAD AND OTHERS vs Hafiz FIDA AHMAD KHAN AND 4 OTHERS

' ZAFFAR HUSSAIN MIRZA, J.-These are three civil appeals and two civil petitions for leave to appeal in which a common question of law has arisen for determination, although in some of these cases other points may also be raised as grounds of appeal. We, therefore, propose by this order to dispose of the common question in the first instance.

2. The proceedings in all these cases were commenced under the Sind Urban Rent Restriction Ordinance, 1959, which was repealed and repeated by the Sind Rented Premises Ordinance, 1979, with effect from 21-11-1979. The orders were passed originally by the Rent Controller in all these cases before the repeal of the Ordinance of 1959 and in each case an appeal before the first Appellate Authority was pending on the date of the repeal which was decided later on. The aggrieved party in each case thereafter filed a second appeal before the High Court of Sind, which was disposed of by judgment which in each case is impugned in this Court.

3. The legal question that requires to be determined, is, whether a second appeal was competent before the High Court from the judgment of the Appellate Authority in a first appeal under subsection (3) of section 15 of Sind Urban Rent Restriction Ordinance, 1959, which was pending immediately before the repeal of the said Ordinance. The repealing Ordinance of 1979 contained a saving clause in respect of pending proceedings under the former Ordinance in section 27 which was in the following terms :- " (1) The Sind Urban Rent Restriction Ordinance, 1959, is hereby repealed.

(2) All appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance."

' On 21-1-1980, by Sind Ordinance II of 1980, section 27 was amended with retrospective effect from the date of the main Ordinance and the following two subsections were added to it :- "(3) All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance.

(4) Notwithstanding the provisions of subsection (2) all orders made in pursuance thereof and order made under the Ordinance mentioned in subsection (1) in any proceedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provisions of section 22."

4The substance of the controversy in these cases relates to the effect of repeal of the Ordinance of 1959, on the right of second appeal available to a parry thereunder, on the conclusion of pending first appeal after the date of repeal. In other words the question is whether the repeal destroyed such right of appeal by virtue of the disappearance of the statute which gave it, from the statute book. The scheme of section 15 of the repealed Ordinance was that the action for eviction of a tenant initiated in the Court of the Controller which formed the original forum over which was created a graded structure of forums of appeal, namely the District Judge at the level of first appeal and the High Court at the apex level of second appeal. This structure in the new Ordinance has been altered and slashed down to only one appellate forum, that is, a direct appeal is now provided from the original Court of Controller to the High Court. The intermediate forum of District Judge has been done away with. The new dispensation, therefore, does not provide for an appeal from the District Judge's Court to the High Court, as that forum has been abolished. Thus, since the repealing Ordinance only provide for one appeal from an order passed by the Rent Controller directly to the High Court, there apparently is no room for an appeal to the High Court from an appellate order passed by the District Judge in a pending appeal. But precisely for this reason, as stated above, the question has arisen whether notwithstanding the repeal of the Ordinance of 1959, an aggrieved party could still avail of the right to remedy by filing a second appeal by virtue of the provisions of the said Ordinance.

5. The general rule as to the effect of repeal of a statute, was postulated as early as 1829 by Lord Tendered 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 obliterate 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 whilst it was an existing law." This rule came to be statutorily recognised in section 38 (2) of the Interpretation Act 1889. 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 statues. Thus by the force of clauses (c) and (e) of section 6 of the General Clauses Act, unless a different intention appears 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 proceeding 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 (1). 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 International Airlines Corporation v.

Messrs Pak Saaf Dry Cleaners (2), 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 in the litigating parties on the date of C the commencement of the liv, is, therefore, not open to challenge, unless of course the repealing enactment, either expressly or by necessary implication, curtails such rights in any manner.

5-A. This brings us to the consideration of the Sind Rented Premises Ordinance, 1979, in order to examine whether there is such curtailment or if any to what extent. Now this Ordinance 1979 is prospective in operation and does not, therefore, overreach and destroy rights of the parties accrued under the repealed Ordinance by any such effect. However, section 27 expressly deals with the effect of repeal of the previous Ordinance on the pending proceedings. On a careful analysis of this section it would appear that two categories of pending proceedings were separately dealt with. In the first category were placed all appeals and such cases before a Controller as are fixed for argument or judgment and it was laid down that, notwithstanding the repeal of the old Ordinance under which such appeals and cases may have been instituted, shall be disposed of in accordance with the said Ordinance. The other category was of the residual cases instituted under the old Ordinance, which were pending before a Controller immediately before the commencement of the new Ordinance, which were to be continued and disposed of in accordance with the provisions of the new Ordinance. Orders made and proceedings taken in any such cases were given effect as ordered and proceedings under

(1) (1905) A C 369 (2) PLD 1981 SC 553 the new Ordinance. This residual category apparently related to pending proceedings before the Controller in which arguments were not heard or cases not fixed for judgment. This intention clearly was not to interfere with the rights of the parties in regard to appeals which would include first appeals pending before the Appellate Authority under the old Ordinance and cases pending in the Court of the Controller which had reached a stage after the hearing of the arguments. All such cases were left to be governed by the provisions of the repealed law, but in regard to cases other than those mentioned above a different intention was manifested and the application of the old law was excluded, with the result that all rights to remedy existing under the repealed law were wiped off.

6.Mr. Khalid Anwar who argued against the proposition that the right of second appeal from the Court of the Appellate Authority survives, presented a somewhat noval argument. According to him subsection (4) of section 27 was crucial to the question in issue. He pointed out that the pending appeals were to be continued and disposed of in accordance with the repealed Ordinance, by virtue of the express provisions contained in subsection (2) of section 27. In the premises he contended that the orders passed in such appeals, having effect as orders passed under the new Ordinance, in terms of subsection (4), such orders were governed only by the new dispensation and since no right of second appeal was given therein, it could not be argued that a second appeal would lie from an order passed in such first appeal. The crux of his argument was that in such pending appeals orders are not passed under the old law but by virtue of the mandate contained in the new law, therefore, section 6 of the General Clauses Act did not come to the rescue of a party claiming such a right to a second appeal. The argument although ingenious has no merit. Subsection (4) of section 27 merely provides for execution of orders ultimately passed in cases which were removed from the operation of the new Ordinance and provides that orders passed in such cases shall be executable in the manner provided by the new Ordinance. This was necessitated in view of the change grading the execution of orders passed by the Controller or appellate Courts in the new Ordinance. Under the Ordinance of 1979, by virtue of section 17 such an order was to be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. Under the new Ordinance, however, section 22 provided that such orders shall be executed in such manner as may be determined by the Controller or, as the case may be, the Appellate Authority. In view of this change of forum and indeed the manner of execution, a necessity arose to make pro- E vision for excitability of such orders which were passed in the pending cases disposed of in accordance with the old Ordinance, to be executed in accordance with the new Ordinance. In our opinion the clear effect of subsection (2) of section 27 was to leave all the right of appeal intact in regard to cases falling in the categories dealt with by that subsection and it would be anomalous to construe subsection (4) in the manner contended for, because that would leave a particular class of cases, namely, first appeals disposed of by the Appellate Authority to be final and conclusive without reaching the High Court. The obvious intention under the scheme envisaged in the new Ordinance was that the proceedings would attain finality with the orders passed in appeal by the High Court.

7.For all these reasons we are inclined to the view that the right to remedy by way of second appeal vesting in the parties remained intact and undisturbed by anything in the new Ordinance and, therefore, we hold that second appeals were competent in all these cases. This . Legal issue having] been disposed of the cases will now come up for hearing as to the rest of the points that may be urged.