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First Rent Appeal No. 503 of 1983, decided on 29th September, 1986.

---Ss. 6 & 15(2)(i) (a) [as repealed by Sind Rented Premises (Amendment) Ordinance (IV of 1984)--West Pakistan General Clauses Act (IV of 1956), S.4--Tenancy for a fixed term--Right of ejectment on termination of such tenancy under Ss.6 & 15 of Ordinance Sections 6 & 15(2)(i) of Ordinance repealed by Sind Rented Premises (Amendment) Ordinance--Effect Proceedings in High Court on date of such repeal whether saved--Right to seek eviction on expiry of fixed term of tenancy was conferred by S. 15(2)(i) of Ordinance XVII of 1979 which ceased to be operative by reason of its deletion by Ordinance IV of 1984 without providing for any saving--When the clause conferring right of eviction was deleted and proceedings under the clause were pending on date of such repeal, landlord would have no accrued right to survive the repeal of S.15(2)(i) of Ordinance (XVII of 1979) and pending proceedings would not be saved.

(1922) 2 K B 422; Abbott v. The Minister for Lands 1895 Law Reports (AC) 425; Director of Public Works and another v. Ho Po Sang and others 1961 (2) A E R 721; Free Lanka Insurance Co. Ltd. v. Ranasingha 1964 A E R 457 and Khushiram Atmaram Jaisinghani v. Custodian of Evacuee Property, West Pakistan Karachi and others PLD 1965 S C 453 ref.

--S. 15(2)(i) [as repealed by Sind Rented Premises (Amendment) Ordinance (IV of 1984)] Ss. 3 & 4 & S. 21--Appeal against eviction- Effect on its competency after repeal of S. 15(2)(i) of Ordinance XVII of 1979--Hearing of appeal under the procedural law of rent, being in the nature of a re-hearing and provisions of S. 21 of Ordinance XVII of 1979 has conferred upon High Court, power to allow further inquiry--Appeal being continuation of proceedings, once an appeal has been admitted against an order, matter would become sub judice again and thereafter, High Court would have seisin of the whole case--Provisions of Ordinance IV of 1984 having thus repealed Ss. 6 & 15(2)(i) of Ordinance, 1979 conferring right of eviction, it was a case of simple repeal without providing for any saving--Ground of eviction on expiry of fixed term tenancy no longer being available was set aside by High Court in appellate rent jurisdiction in circumstances.--[Appeal (civil)].

Lachmeshwar v. Keshwar Lal A I R 1941 F C 5; F.A. Khan v. The Government of Pakistan P L D 1964 S C 520; East Pakistan v. Muhammad Hussain Mia P L D 1965 S C 1; Mukerjee v. Ram Ratan AIR 1936 F C 49 and Sayeedur Rahman v. Chief Election Commissioner, Dacca and others P L D 1965 S C 157 ref.

Naraindas for Appellant.

Kh. Mahfoozur Rehman for Respondent.

Date of hearing: 31st August, 1986.

This first appeal is directed against the order, dated 5-5-1983 passed by IInd. Senior Civil Judge/Rent Controller, Karachi, whereby he allowed the Eviction Application No.5334 of 1981 filed by the respondent and directed the appellant to hand over the possession of the premises in question to the respondent within ninety days from the date of the order.

The facts giving rise to this appeal are that the respondent is landlady of Bungalow No.10-H, Block 2, P.E.C.H. Society, Karachi and the appellant acquired tenancy of a portion of the ground floor of the said bungalow from the respondent at the monthly rent of Rs.600 besides Sui gas, electricity, water and conservancy charges under written tenancy agreement, dated 15-6-1981. It was averred in the eviction application that the said agreement was for a period of eleven months from 1-1-1981 to 30-11-1981. It was further averred that the said agreement expired on 30-11-1981 and thereafter the tenancy ceased to be valid. It is the case of the respondent that she served a legal notice, dated 30-11-1981 stating therein that the respondent did not want to extend or renew the said agreement and it was for a fixed period. It is the case of the respondent that the appellant failed to vacate the premises in question hence she filed the eviction application. The appellant resisted the eviction application.

The respondent led her evidence in support of the eviction application but the appellant did not lead any evidence in rebuttal.

After hearing, the arguments of the learned counsel for the parties, the learned Controller gave his finding in the affirmative and ordered eviction of the appellant by his order, dated 5-5-1983 which had been challenged in this appeal.

Mr. Naraindas C. Motiani, the learned counsel for the appellant has contended that the landlady is not entitled to file an eviction application on the ground that the tenancy ceased to be valid under section 15 (2)(i) of the Sind Rented Premises Ordinance, 1979.

On the other hand Mr. Khawaja Mahfoozur Rehman the learned counsel for the respondent has submitted that the eviction application was competent under section 15(2)(i) notwithstanding the repeal of section 6 and clause (i) of subsection (2) of section 15 of the Ordinance.

A question of some importance arises for decision in this appeal. It concerns the consequence of the repeal or deletion of section 6 and clause (i) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979 by sections 3 and 4 of the Sind Rented Premises (Amendment) Ordinance No.IV of 1984. The Ordinance 1979 provides provisions for regulation of relations between landlords and tenants and protect their interest in respect of rented premises within urban areas. Sections 14 and 15 thereof specifying grounds for filing eviction application and also specify the procedure by which the right to seek eviction is to be exercised.

In order to appreciate the effect of appeal it is necessary to notice at this stage certain facts regarding the legal position prevailing on that date and earlier. The Sind Rented Premises Ordinance, 1979 was enacted on 21st November, 1979. Section 6 thereof provides that no tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy. The provision provides that nothing in this section shall affect any tenancy existing immediately before coming into force of this Ordinance. It has been specifically provided under section 13 that no tenant shall be evicted from the premises in his possession except in accordance with the provisions of the Ordinance. Section 15(2) provides that the Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that the tenancy .has ceased to be valid under section 6. The said section 6 and clause (i) of subsection (2) of section 15 were repealed by Ordinance No.IV of 1984 with which I am concerned in this appeal.

The provisions of section 6 and section 15 (2)(i) have been repealed by Ordinance No.IV of 1984 and the repealed Ordinance does not embody any saving provision. The question that arises is whether proceedings pending before the Controller or appeal pending in this Court on the date of such repeal would be saved and the case and appeals could be disposed of as if section 6 and clause (i) continued to be in force.

The right to seek eviction was conferred by section 15 (2) (i) of the Ordinance. This was a special provision. The clause ceased to be operative by reason of its deletion by Ordinance No.IV of 1984. Till then eviction application could be filed under clause (i) of subsection (2) of section 15 of the Ordinance, tried and disposed of. That was a right available to the landlord because relevant clause of that section was in force as stated earlier. This was in force by its own right and not because of any other provision or clause in the Ordinance. When once the Clause was deleted and proceedings under the clause are pending on the date of such repeal whether they could 'be continued under that clause has to be decided with reference to the provisions of the repealing Ordinance read alongwith section 4 of the Sind General Clauses Act, 1956 corresponding to section 6 of the General Clauses Act, 1897. Section 4 of the Sind General Clauses Act provides for the effect of repeal. That reads thus:-

Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect;

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) 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 proceedings, or remedy may be instituted, continued or enforced, and any penalty imposed as if the Repealing Act had not been passed."

The bare reading of this section shows that unless a different intention appears in the Repealing Act or Ordinance any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act or Ordinance as if that Act or Ordinance was in force at the time of repeal. In other words, whenever there is a repeal of an enactment the consequences laid down in this section will follow unless, as the section itself says a different intention appears in the repezling statute. In the case of simple repeal there is scarcely any room for expression of contrary opinion. But when the repeal is followed by the fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act or Ordinance but only for the purpose of determining whether they indicate a different intention. The question is whether the new Act or Ordinance expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 4 of the General Clauses Act, therefore, will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. I have already observed that the deletion under sections 3 and 4 (1) of Ordinance 1984 was a simple repeal without providing for any saving.

The learned counsel for the- respondent has submitted that the respondent had a right to obtain possession of the premises in dispute by filing an eviction application and that it was a right which accrued to the respondent on the date of execution of tenancy agreement. I do not think that the respondent had an accrued right which would survive the repeal of that provision.

In Hamilton Cell v. Whili (1922)2 K.B. 422, Atkin, L.J. said that "the provision of .section. 38 (2) (c) of the English Interpretation Act corresponding to section 6 (e)'the General Clauses Act, was not intended to preserve abstract rights conferred by the repealed Act. It applies only to the specific rights given to an individual upon the happening of one or other of the events specified in the Statute". The Court held in that case that a tenant's general right to compensation for disturbance would not survive the repeal of the Agricultural Holdings Act, 1908. But, where a landlord, before the repeal, had given his tenant notice to quit, the tenant had acquired a right which would 'accrue' when he quitted his holding the right to receive compensation. In Abbott v. The Minister for Lands 1895 Law Reports (A.C.) 425 the appellant claimed that as a purchaser of Crown Land in New South Wales in 1871 he became entitled under the Crown Lands Alienation Act, 1861 to make further purchases of Crown Lands adjoining his original holdings. The Act of 1861 was repealed by the Crown Lands Act, 1884 which, however, provided that notwithstanding the repeal 'all rights accrued' by virtue of the repealed enactment should remain unaffected. The Judicial Committee held that the mere right existing, at the date of the repealing Statute to take advantage of the Provisions of the Act repealed was not a right accrued within the meaning of saving clause. In Director of Public Works and another v. Ho Po Sang and others 1961 (2) A E R 721, the Privy Council has had to consider the question. It was held that the Director of Public Works had given a Crown lessee notice of his intention to grant a rebuilding certificate, which would enable the lessee to recover vacant possesion for the persons in occupation of the premises, did not confer any right to the certificate on the lessee. Since various conditions had remained to be fulfilled -before the certificate could be granted so that the lessee had no more than a hope that it would be granted. Lord Morris of Borth-Y-Cest said in the judgment of the Board:

"It may be, therefore, that, under some repealed enactment, a right has been given but that, in respect of it, some investigation or legal proceeding is necessary. The right then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. On a repeal, the former is preserved by the Interpretation Act'. The latter is not."

In Free Lanka Insurance Co. Ltd. v. Ranasingha 1964 AER 457, Lord Evershed in the Judgment of the Board said that the distinction between what was, and what was not, "a right" must often be one of great fineness and the Court held that a claim given by the Ceylon Motor Car Ordinance, 1938 to an injured person again7t the other party involved in an accident was "something more than mere hope or expectation that he had in truth a right within the contemplation of section 6 (3) (b) of the Interpretation Ordinance, under section 133 of the Ordinance of 1938 although that right might fairly be called inchoate or contingent".

In Khushiram Atmaram Jaisinghani v. Custodian of Lvacuee Property, West Pakistan and Karachi and others P L D 1965 SC 453 while explaining section 6 of the General Clauses Act, Mr. B . Z . Kaikaus, J. for the Supreme Court has observed as under:-

"Reliance is placed on clause (e) of this section and it is urged that any proceeding which could have been taken if the Act remained in force can be taken if it is repealed. It will be observed however that clause (e) refers to 'such right, privilege, etc. as aforesaid' and this has reference to clause (c) in accordance with which any 'right, privilege, obligation or liability' which has already accrued or been incurred, remains unaffected. For the application of clause (e), therefore there has to be a right and then a 'legal proceeding in respect of such right. This does not appear to be applicable 'to a case where the only possible right which can be said to have accrued is the right to prefer. a particular legal proceeding in respect of substantive rights which have already accrued under a repealed enactment and would not cover a case where only a procedural right is granted."

I do not, however, think that the right of the respondent landlady to obtain possession of the premises in dispute was an accrued right within the meaning of section 6 (3) of the General Clauses Act which would survive the repeal of the premises of section 6 and section, 15 (2) (i).

Mr. Khawaja, the learned counsel for the respondent, has contended that when hearing an appeal this Court is only concerned to see whether or not the order of eviction was in conformity with the law as it stood at the time that eviction order was given. His contention is that as the Ordinance of 1984 had not been enacted at the time when the Controller decided the eviction application, this Court is not competent to give relief to the appellant in terms of sections 3 and 4 of the new Ordinance.

Mr. Naraindas, on the other hand, has submitted that section 6 and clause (i) of subsection (2) of section 15 were deleted by sections 3 and 4 (i) of the new Ordinance. His contention is that the appellant is entitled to the benefit of sections 3 and 4 (1) of tae new Ordinance though it had been enacted only after the date of the decision of Controller in this case.

It is well-settled legal position that the eviction order of the Controller had been appealed against, the matter became sub judice again and thereafter, this Court had seisin of the whole case. The hearing of an appeal is under the procedural law of rent of the country in the nature of a rehearing. Section 21 of the Sind Rented Premises Ordinance has conferred upon this Court the power to allow further enquiry. I am of the view that the appeal is a continuation of the proceedings. In this connection, I would make reference to Lachmeshwar v. Keshwar Lal A I R 1941 FC 5. It was held in that case that the hearing of an appeal being in continuation of the original proceedings, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. It was further held that the Appellate Court was competent to take into a-count legislative changes since the decision under appeal was given and its powers were not confined only to see whether the lower Courts decision was correct according to the law as it stood at the time when its decision was given. In F.A. Khan v. The Government of Pakistan P L D 1964 SC 520, the Hon'ble Court held at page 529 as follows:-

"In respect of the nature of an appeal the following proposition may be regarded as established:

(i) when an appeal is filed the matter becomes sub-judice and is reheard by the appellate Court which does not act merely as a Court of error;

(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court;

(iii) the original and appellate proceedings are steps in one proceedings."

In Province of East Pakistan v. Muhammad Hussain Mia P L D 1965 SC 1, the Hon'ble Supreme Court held at page 14 as under:-

"On the filing of the appeal the entire matter -became reopened and sub-judice and had to be decided in accordance with the law then prevailing."

In the case of Mukerjee v. Ram Ratan A I R 1936 FC 49, Lord Thankertin observed that the duty of a Court is to administer the law of the land at the date when the Court is administering it: This adds significance to the fact that their Lordships in that case did not deal with the judgment of the Patna High Court on its merits, but dismissed the appeal on the strength of a provision contained in an enactment which was passed only during the pendency of the appeal before His Majesty's Council.

In the case of Sayeedur Rahman v. Chief Election Commissioner, Dacca and others P L D 1965 SC 157, the Hon'ble Supreme Court laid down the following dictum:-

"We therefore, entertain no doubt that the Act of 1963 is retrospective in the sense that it applies to proceedings pending at the time when the Act came into force. Accordingly it only remains to consider whether this Court in the exercise of its appellate jurisdiction can substitute for the judgment and order of the High Court a judgment or order in accordance with the law as now exists without discussing the law as it existed at the time when the High Court had seisin of the case. Once an appeal has been admitted against the decree or order of the High Court, the matter becomes sub judice again and thereafter this Court has seisin of the whole case. This Court, therefore, can take into account the provisions of the new Act which repealed the Act of 1957 and grant relief accordingly ever though the judgment of the High Court had been correct according to law as it then stood."

In these circumstances I am of the opinion that I should follow the; law as laid down in the above cases.

I am of the opinion that the Ordinance of 1984 was a case of simple repeal without providing for any saving.

For the aforesaid reasons I accept this appeal and set aside the impugned order dated 5-5-1983. Consequently the eviction application filed by the respondent stands dismissed. In the circumstances of the case the parties will bear their own costs. The above are the reasons for my short order dated 31-8-1986 accepting the appeal on the conclusion of the arguments.

A . A . / H-4/ K Eviction set aside.

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