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First Rent Appeal No. 48 of 1982, decided on 23rd August, 1983.
-- O. VII, r. II-Sind Rented Premises Ordinance (XVII of 1979), Ss. 3 (2), 13 & 14-O. VII, r. II, C. P. C. not applicable to pro ceedings under Sind Rented Premises Ordinance (XVII of 1979), hence order purported to have been passed under Ordinance cannot be treated or equated with decree in terms of O. VII, r. II, C. P. C. as if it was passed by a Civil Court in order to entitle party to file a civil appeal.
-- Ss. 20 (a) (b) (c) (d), 21, 3 (2), 13 & 14-Rent Controller and appellate authority has power of Civil Court in respect of matters enumerated in cis. (a) (b) (c) (d) of S 20 and not for any other purpose-Right of appeal-Confined to cases mentioned in S. 21 which expressly bars against interim order -Order of Rent Controller on rent application being an interim order and not disposing entire case, held, appeal under S. 21 was not competent against such order Appeal lies against final order in circumstances
-- "Of" "belonging"-Connotation.
Chamber's Twentieth Century Dictionary, 1950 Edn. , Black's Law Dicticnary, Fifth Edn. ; Concise Oxford Dictionary, New Edn. (1977 Edn.) and Oxford Paperback Dictionary, 1979 Edn. ref.
-- S. 3 (2)-Notification No. VIII (3) SCJ/75, dated 27th July, 1980 Word "of" in notification means associated or connected with or in occupation of schools and colleges-Notification, held, includes premises in occupation of schools and colleges though on rental basis.
S. 3 (2)-Notification No. VIII (3) SCJ/75, dated 27th July 1980- Effect of notification-Rights and obligation of landlord and tenant to be governed by Transfer of Property Act, 1882-Upon issuance of notification Rent Controller ceased to have jurisdiction over rent application and, therefore, order of Rent Controller being without jurisdiction, set aside-Transfer' of Property Act (IV of 1982). [Jurisdiction].
Mst. Khadija Merchant v. The K. M. C. through Mayor 1983 C L C 535 and Adnan Afial v. Capt. Sher Afzal P I, D 1969 S C 187 ref.
-- Ss. 13 & 14-Default by tenant-Tenant, Provincial Government, raising plea that under practice obtaining landlord used to pass on advance receipt for rent as per Rules of Government and that landlord did not pass on said receipt for period of default-Landlord admitting position in cross-examination - Held: Tenant under law has no right to impose any additional obligation on landlord which was not provid ed under Ordinance or agreement between parties-Order of Rent Controller, finding tenant in default concurred by High Court in appeal.
Province of Punjab through the Secretary to the Government of Punjab, Education Department v. Civil Judge, Lahore and others 1982 S C M R 692 ref.
-- Ss. 13 & 14-Bona fide personal need of landlord-Landlord requiring possession of premises with tenant for his own and two sons' bona fide personal need as they wanted to start business in said premises-Landlord in rent application, suppressing material fact that his sons had two separate shops in their possession-Evidence produced by landlord not inspiring confidence-Finding of Rent Controller that landlord needed premises for bona fide personal use reversed by High Court in circumstances.
All Aslam Jafary for Appellants.
Rehman Ali Naqvi for Respondent.
Date of hearing : 16th August, 1983.
This appeal is directed against the orders, dated 7th February, 1982 and 3rd December, 1981.
The relevant facts leading to the filing of the above appeal are that the respondent filed the above rent, application on 8th February, 1979 for eject ment on two grounds namely, default and personal requirement. The subject-matter of the rent application was let out by the respondent to Tameer Nao School. After the nationalization of the Schools under M.L R. 118, the control and the management of the above School was taken over by the appellants and, therefore, the above rent application was filed by the respondent against the appellants. While the above rent application was pending, the Secretary to the Government of Sind, Home Department, issued a Notification No. VIII (3) SOJ/75, dated 29th July, 1980 under sub section (2) of section 3 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) exempting the premises belonging to the councils constituted under the Sind Local Government Ordinance, 1979 and the premises of the Schools and colleges. It may be advantageous to produce herein below the above notification which reads a; follows :--
Karachi, the 29th July, 1980.
No. VIII (3) SCJ/75.-In exercise of the powers conferred by sub section (2) of section 3 of the Sind Rented Premises Ordinance, 1979 and in. supersession of all Orders issued previously, the Government of Bind, are pleased to exempt the premises belonging to the councils constituted under the Sind Local Government Ordinance, 1979 and the premises of the Colleges and Schools, taken over under Martial Law Regulation, 118 of 1972, from the application of the said Ordinance.
Secretary to Government of find."
Upon issuing of the above notification, the appellants filed an application under Order VII. rule I1, C. P. C. read with section 3 (2) of the Ordinance for rejection of the above rent application on the ground that the premises of Colleges and Schools were exempted from the application of the provisions of the said Ordinance. However, the learned Rent Controller by his order, dated 3rd December, 1981 dismissed the above application and proceeded with the rent application and allowed the same on both the grounds i. e. efault and personal requirement. The appellants being aggrieved by the above orders have filed the present appeal.
2. In support of the above appeal Mr. Ali Aslam Jafferi ]tamed counsel for the appellants has urged as. follows :
(i) That in view of the above notification, dated 29th July, 1980 gazetted on 9th October, 1980, the learned Rent Controller had ceased to have jurisdiction in respect of the subject-matter of the rent application and, therefore, the impugned orders are without jurisdiction.
(iii) That even on merits the findings of the learned Rent Controller on the question of default as well as the personal requirement art not sustainable.
On the other hand Mr. Rehman Ali Naqvi learned counsel for the respondent had contended as follows :-
(i) That since the order passed by the learned Rent Controller upon the appellants' application under Order VII, rule 11, C.P-C- Was a decree, the appellants should have filed an appeal against the above order instead of raising a ground in this appeal.
(ii) That in any case only those properties were exempted for the application of the Ordinance, which were owned by the schools and colleges and not which were taken on rent by the previous managements.
(iii) That the findings of the learned Rent Controller on the grounds, namely, default and personal requirement are two accordance with the evidence on record and are in consonance with law.
3. It may be advantageous to take up the question, whether the order passed by the learned Rent Controller on the appellants' application finder Order VII, rule 11, C. P. C. read with section 3 (2) of the Ordinance can be treated as decree entitling the appellants to file an appeal. In this regard it may be pertinent to reproduce herein below sections 20 and 21 q the Ordinance, which read as follows
"20. Power of Civil Court.-(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) in respect of only the matters, namely :-
(a) Summoning and enforcing the attendance of any person and examining him on oath ;
(b) Compelling production or discovery of documents ;
(c) inspecting the site ; and
(d) issuing commission for examination of witnesses or documents.
21. Appeal.-(1) Any party aggrieved by an order, not being an interim Order, made by the Controller may within thirty days of such Order, prefer to an appeal to the High Court.
(2) The appellate authority may pending the final disposal of the appeal, grant injunction staying further proceedings or action on the Order of the Controller
Provided that no injunction shall be granted if the appeal has been preferred from the Order under section 14.
(3) The appellate authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate Order, which shall be final."
It may be noticed that under the above-quoted section 20, the Rent Controller and the appellate authority have been given power of a Civil Court in respect of the matters enumerated in the above-quoted clauses (a) (b) (c) and (d) and not for any other purpose. Strictly speaking Order VII, rule 11, C. P. C. is not applicable to rent proceedings under the Ordinance. It must, therefore, follow that an Order purported to have bee passed under the above provision cannot be treated or equated with decree to terms of Order VII, rule 11, C. P. C. as if it was passed by a Civil Court in order to entitle a party to file a civil appeal. Furthermore, under the Ordinance the right of appeal is confined to the cases mentioned in the above-quoted section 21 of the Ordinance which expressly bars an appeal against an interim Order. The above Order, dated 3rd December, 1981 passed by the learned Rent Controller on the application filed by the appel lants was in nature of an interim order as it dad not dispose of the entire rent proceeding. I am, therefore, inclined to hold that even under section 21 .of the Ordinance, the appeal was not competent. I am, further, incline to hold that the appellants are entitled to raise this plea in an appeal fil against the final Order.
4. Reverting to the question, whether on account of the above notifica tion, dated 29th July, 1980 under section 3 (2) of the Ordinance, the learned Controller ceased to have any jurisdiction, it may be pertinent to reproduce herein below section 3 of the Ordinance which provides as follows :-
"3. Applicability.-(1) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government situated within an urban area, shall be subject to the provisions of this Ordinance
Provided that nothing contained in sections 8 and 9 shall apply to building for a period of ten years immediately after it has been wholly built or rebuilt and has become ready for occupation.
(2) Government may, bye notification, exclude any class of premises, or all premises, in any area from operation of all or any of the provisions of this Ordinance."
It may be noticed that under subsection (I) of the above-quoted section 3, it has been provided that notwithstanding anything contained in any law for the time being in force all premises other than those owned or requisitioned under any law by or on behalf of the Federal or Provincial Government situated within urban area, shall be subject to the provisions of the Ordinance. It further provides that nothing contained in sections 8 and 9 shall be applicable for a period of 10 years, to a building which has been wholly built or rebuilt and has become ready for occupation. Whereas subsection (2) empowers the Government by a notification to exclude any class of premises or all premises in any area from operation of all or any of the provisions of the Ordinance, in the instant case the Government has issued the above-quoted notification under the latter subsection, namely sub section (2) as observed hereinabove. The moot point is, as to whether this notification exempted only the premises which were owned by schools and colleges but also which were occupied by the schools and colleges on rental basis. It has been contended by Mr. Ali Aslam Jafferi that the contents of the above notification clearly indicate that the premises which were in occupation of the nationalized Schools and Colleges even on rental basis were exempted and not only the premises which were owned by them. In furtherance of his above contention, he has pointed out the use of different phraseology as regards councils and schools and colleges, namely," the premises belonging to the councils" and "the premises of the schools and colleges". Whereas it was vehemently urged by Mr. Rehman Ali Naqvi learned counsel for the respondent that the word "of" is synonymous with the word "belonging" and, therefore, the premises which belonged to the schools and colleges were exempted and not the premises which were on rent. It may be observed that the Rent Controller in his above order, dated 3rd December, 1981 has relied upon the definition of the word "of" given in Chamber's Twentieth Century Dictionary 1950 Edition which is as follows :-
"OF. OV, Prep: From or out from, belonging to out of, among Proceeding from, son is the litany and nicene Creed : owing to with ; over : concerning dncing (B. and Pr : Bk) some time by, from on or over."
On the basis of the above definition, it has been concluded that as the word "of" also connotes the meaning "belonging", the word "of" used in the above-quoted notification is to be construed as belonging.
5. It may be advantageous to quote herein below that the definition o the word "of" given in the well-known dictionary namely Black's La Dictionary (Fifth Edition), and the Concise Oxford Dictionary New Edition (1976 Edition) and the Oxford Paperback Dictionary 1979 Edition which as follows :-
"(1) Black's Law Dictionary, 5th Edn.-Of. A term denoting that fro which anything proceeds; indicating origin, source, descent, and the like ; as he is of noble blood. Associated which or connected with usually in some casual relation, efficient, material formal of final. The word has been held equivalent to after at, or belonging to possession of manufactured by residing at; from."
(2) Oxford Concise Dictionary 1979th Edn.-"Of (ov or, when stressed ov) prep. connecting its n. or pron. with preceding n., a., adv., or v., and indicating relations roughly classified as follows .....................
(3) Oxford Paperback Dictionary, 1979 Edn.-"Ofprep. indicating relationships
(1) belonging to or originating from.
(2) concerning, told us of his travels.
(3) composed or made from, built of brick ; a farm of 100 acres.
(4) concerning, with reference to, never heard of it.
(5) for or involving or directed towards, love of one's country.
(6) so as to bring separation or relief from, cured him of smoking.
(7) during, he comes of an evening."
From the above-quoted definition of the word "of " given in the above dictionaries, it is evident that the word "of" has wider connotation a compared to the word "belonging" and it includes anything "associated with or connected with" and also includes "belonging to or in possession of". The use of the two different words in the same notification, namely, "belonging" and "of" clearly indicates that they were intended to convey two different meanings. I am, therefore, inclined to hold that in the above notification the word "of" means associated or connected with or in occupation of the schools and colleges. It must, therefore, follow that the above notification includes the premises in occupation of the schools and colleges though on rental basis.
6. Mr. Ali Aslam Jafferi has referred to the case of Mst. Khadija Merchant v. The K. M, C. through Mayor 1983 C L C 535, in which a learned Single Judge .of this Court while construing the above notification held that the above notification was applicable to pending cases as the same related to procedural law and no party has any vested right in particular remedy conferred by Statute. Reliance was placed on the case of Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187, wherein the Hon'ble Supreme Court held that the question relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence pertain to procedure. It was held that the law providing change of forum is retrospective being a matter of procedure only provided it does not affect the existing rights. The above Karachi and Supreme Court cases are on fours applicable to the present case. Learned counsel for the respondent was unable to point out that any respondent's existing right was affected by the above change of forum. On the contrary respondent has been placed on better footing on account of the above notification as the effect of the above notification would be that the rights and obligations .between the appellant and the respondent would be governed by the general law, .namely, Transfer of Property Act. The provisions of Sind Rented Premises Ordinance are always considered a providing. constraints on the' normal rights of landlord under the general law. For the aforesaid reasons I am, therefore, of the view that upon the issuing of the above notification, dated 29th July, 1980 the learned Rent Controller had ceased to have jurisdiction over the subject-matter b the rent application and, therefore, the final order is not sustainable in law.
7. As regards the merits of the case, it may be observed that it is an admitted position that the rent after 30th.June, 1978 was not paid. The plea raised by the appellants was that under the practice obtaining, the respondent used to pass on advance receipt for receiving the Tent as per rules of the Government and that he did not pass on the said receipt for the above period. The above fact has also been admitted by the respondent in his cross-examination. The question, is, as to whether in the above circumstances, it can be said that the default was committed by the appellants. Mr. Rehman Ali Naqvi learned counsel for the respondent has relied the upon the case of Province of Punjab through the Secretary to the Government of Punjab, Education Department v. Civil Judge, Lahore and others 1982SCMR 692 in which the Hon'ble Supreme Court while declining to grant leave repelled a similar argument advanced before it in the following words :-
"3. The only ground urged by the learned counsel for the petitioner before us was that there was wilful default in payment of rent because according to the practice of the Department, a bill has to be prepared and presented for passing to the Audit Office. But the Audit Office insists on a certificate from the Excise and Taxation Department showing the Assessed Annual Rented Value of the premises in ques tion being submitted alongwith the bill. And since the respondent/landlord failed to supply a copy of such a certificate the petitioner paid him rent at the rate of Chart 50% per month for about 9 months. But as the Certificate was still not supplied by the respondent the petitioner/defendant in accordance with its usual practice, withheld the payment of the rent altogether.
4. We have considered this contention and have also gone through the judgment of the three Courts below before which the same conten tion had been urged unsuccessfully. We must express our surprise at the stand taken by the petitioner. It is evident, as observed by the learned Courts below that there is nothing in section 13 of the Urban Rent Restriction Ordinance which makes any distinction between a private tenant and Government Department as a tenant. The Government Departments are required to pay rent to the landlord like any other private tenant and would be equally liable to ejectment on default in payment of rent in accordance with law. As tenants, a Government Department and a private citizen are both obliged to tender rent to the landlord. Similarly both are liable to ejectment on default of payment of the rent in accordance with law. It is not open to the Government Department to take the premises on lease and impose conditions of its own on the landlord as in the present case. It is required to pay him the rent and in doing so the Department is doing him no favour, as it is their duty, in law, to tender rent to the landlord. The fact that the building had been hired to run a school makes it all the more obligatory on the respondents to have exercised greater vigilance in paying the rent in time."
The above Supreme Court case on all fours. is applicable to the instant case. The appellants under law had no right to impose any additional obligation on the respondent which is not provided under the Ordinance or under any agreement entered into between the parties and which is no inconsistent with law. I am, therefore, inclined to concur with the finding of the learned Rent Controller on the question of default.
8. Referring to the ground of personal requirement, it has been vehemently urged by Mr. Ali Aslam Jafferi that the above ground has not been satisfactorily proved. The respondent has made following averments in paras. 9 and 10 of the rent application as to the personal requirement :-
"9. That the applicant has been residing in the -upper portion with his family members. One married daughter of the applicant along with her husband and children has also been residing with the applicant. One son of the applicant has already been married and he has got 5 children. The marriage of the other son of the applicant is going to be performed in near future and all the arrangements in this regard have been completed, but on account of proper accommo dation it is being delayed.
10. That the applicant requires the premises in possession of the opponents for his and his two sons bona fide personal use as they want to start business in the said premises."
It may be observed that in the above para. 10 of the rent application, it was inter alia averred that the applicant requires the premises in possession of the appellants for his own and his two sons bona fide personal use as they want to start business in the said premises. However, the respondent in his cross-examination admitted that both the sons have separate shops in their possession and they have been running their business there. The above, material fact was suppressed by the respondent in the rent application. The evidence on the above point produced by the respondent does inspire confidence. I am, therefore, not inclined to concur the finding of the learned Kent Controller on the question for personal requirement. The above finding is, therefore, hereby reversed
9. Since I have held that upon the issuance of above notification, dated 29th July, 1980 the learned Rent Controller has ceased to have jurisdiction, the appeal is to be allowed. I, therefore, allow the appeal and set aside the order under appeal on the ground of being without jurisdiction. In the circumstances of the case there will be no order as to costs.
M. Z. M. Appeal allowed.
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