AMANULLAH KHAN LEGHARI vs ADIB SHAIKH AHMED

1. F.R.A. No,423 of 1995, was filed to challenge the order of the 1st Senior Civil Judge and Rent Controller, Karachi East, passed in Rent Case No,76 of 1991. The appeal was dismissed for non- prosecution on 18-1-2001. On 7-5-2001, C.M.A. No,989 of 2001 was filed for restoration of the appeal under Order IX, rule 13, Civil Procedure Code read with section 151, Civil Procedure Code. On 17th April, 2001, the Sindh Rented Premises (Amendment) Ordinance, 2001, was published in the Sindh Government Gazette, whereby section 21 of Sindh Rented Premises Ordinance, 1979 was amended and the District Judge having jurisdiction in the area was substituted for the High Court as the Appellate Authority. A new section No,21-A was also inserted, which provided that all appeals filed under this Ordinance and pending in the High Court immediately before the commencement of Sindh Rented Premises (Amendment) Ordinance, 2001, shall stand transferred, to the District Judge having jurisdiction as provided in subsection (1) in section 21, for disposal. This section contained a proviso that the appeals fixed for judgments shall be disposed of by the High Court. Now the question is about the status of the appeals which stood disposed of, for non-prosecution, on the date of commencement of the amending Ordinance. Mr. Naimur Rehman, learned counsel appearing for the appellant, submitted that by virtue of section 21-A of the amending Ordinance, only pending appeals have been transferred to the District Judges, while the present appeal was not pending. He submitted that per force he has to approach this Court for restoration, because the appeal has not been transferred to the District Court. His contention is that section 21-A, inserted by the amending Ordinance, does not exclude jurisdiction of the High Court to entertain an application under Order IX, Rule 13, Civil Procedure Code.

2. Mr. Rizwan Ahmed Siddiqui, learned counsel appearing for the respondent, submitted that the appeal stood disposed of and now the High Court has no jurisdiction to pass an order in it. The amending Ordinance contains a commencement clause which states "it shall come into force at once". Insertion of this clause reflects lack of knowledge of the principles of legislative drafting, on the part of the drafter. Words "at once" used in the clause do not specify the moment when the.

3. Ordinance is to come into force. This is not when the drafter prepares the draft, nor at any stage before the competent authority---Governor signs the Ordinance. It is also not clear if these words mean the moment when the Governor signs the Ordinance. An Ordinance is promulgated through publication in the official Gazette and this Ordinance has been published in the Sindh Government Gazette on 17th April, 2001. An Ordinance comes into force on its promulgation, and this does not, necessarily, require a commencement clause. But if it is deemed necessary, the commencement clause should mention that it shall come into force on publication in the Gazette or on its promulgation. However, a commencement clause in a Bill or Ordinance is not always necessary. It is usually required when the commencement is subject to any future eventuality, or different provisions are to be enforced on different occasions. An Ordinance comes into force on its promulgation, on the authority under which it is issued. Similarly an Act comes into force, except expressly provided otherwise, as soon as it is assented to by the President or the Governor, as the case may be, under Articles 75 and 116 of the Constitution, a Bill becomes law when assented to by the President or the Governor. This amending Ordinance came into force on 17th April, 2001, on its publication in the Sindh Government Gazette and on that date, by virtue of amendment in section 21 of the Sindh Rented Premises Ordinance, 1979, the High Court ceased to be the 'appellate authority' for rent appeals under this Ordinance. The drafter of this Ordinance again omitted to consider this fact and inserted a contradictory provision in the form of the proviso to section 21-A which states that the appeals fixed for judgment shall be disposed of by the High Court. Since on promulgation of the amending Ordinance, the High Court ceased to be 'appellate authority' by virtue of amendment in section 21.

4. It could not dispose of the appeals which were fixed for judgment. It is the responsibility of legislative drafter to avoid contradictory provisions and it should not be left to the Courts to find out reconcilable interpretation.

5. Through the amending Ordinance, the appeals pending in the High Court have been transferred to the new appellate authorities comprising the District Judges having jurisdiction. The Ordinance is silent about the appeals already disposed of, but it is unambiguous that after this amending Ordinance, the High Court ceased to be the appellate authority in respect of the appeals under Sindh Rented Premises Ordinance, 1979. The High Court, consequently, has no jurisdictional capacity to order restoration of an already disposed of appeal or to hear the appeal after its restoration. Jurisdiction was given by the Sindh Rented Premises Ordinance which has been taken away expressly by the amending Ordinance. The contention of Mr. Naimur Rehman that the High Court has jurisdiction to entertain an application for restoration of a rent appeal is not tenable because even otherwise Order IX, rule 13, Civil Procedure Code is not applicable to the rent appeals. The powers of Civil Court given to the Appellate Authority under the Ordinance have been mentioned in section 20 of the Sindh Rented Premises Ordinance, 1979 and that exclude use of powers under Order IX, Rule 13.

6. In view of this legal position, it is clear that disposed of rent appeals have been treated by the amending Ordinance as disposed of matters for all purpose. If the High Court has no jurisdiction to hear the appeal itself. It also cannot order restoration of such an appeal. The application for restoration of the appeal is, therefore, dismissed.

7. A copy of this order be forwarded to Secretary, Law Department, Government of Sindh for guidance. The office shall not entertain restoration applications in the rent appeals under Sindh Rented Premises Ordinance, 1979 already disposed of, unless the Supreme Court takes a different view or the law is amended for the purpose.