Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
First Rent Appeal No.75 of 1986, decided on 22nd March, 1987.
---Word "shall"--When mandatory--Mandatory or directory nature of provision of law--Criteria of performance of public duty and resulting serious consequences and general inconvenience in neglect of such duty--Legislature's intent and purpose--No general rule, held, could be laid down to decide whether certain provision of law was mandatory or directory--Question whether a statute was mandatory or directory would depend upon intent of legislature which has to be ascertained by considering nature of provision, its design and consequences which would follow from construing it one way -or the other--Word 'shall' used in provision, though generally taken in mandatory sense, yet would not mean that in every case it would have that effect--Where provision of statute related to performance of public duty and acts done in neglect of such duty would work serious general inconvenience and at the same time would not promote main object of legislature, such provision would be deemed only to be directory in nature. - [Habib Ahmed. v. Liaquat Hussain P L D 1985 Kar. 741 dissented from].
Habib Ahmed v. Liaquat Hussain P L D 1985 Kar. 741 dissented from.
Mst. Fatima v. Mst. Hanifa 1986 C L C 1613 ref.
---Ss.2(f)(j), 5 & 21(1)--Relationship of landlord and tenant, proof of--Attestation of tenancy agreement whether mandatory--Provision of S.5 specifically providing that tenancy agreement between landlord and tenant has to be in writing and should be duly attested, signed and sealed by concerned Rent Controller or by other competent attesting authority, nowhere indicated consequences of non-attestation of such tenancy agreement--If intention of legislature was that attestation was compulsory and non-attestation would render tenancy agreement nullity, then there was no difficulty for legislature in making specific provision to that effect--Silence of legislature in that respect held, itself indicated that requirement of attestation of tenancy was not mandatory and that non-attestation thereof render it invalidated nor would debar parties from proving relationship of landlord and tenant by producing same in evidence.
---Ss.5, 6 & 15(2)(1) [as omitted by Sind Rented Premises (Amendment) Ordinance (IV of 1984)]--Eviction of tenant after expiry of tenancy period--Requirement--In case of contractual tenancy, Rent Controller is competent under S.15(2)(1) to evict tenant after expiry of tenancy period--Provisions having been omitted by Ordinance (IV of 1984), Rent Controller, held, would be competent to pass eviction order on ground of expiry or-tenancy period alone only before omission of above provisions--Extra-judicial termination or determination of tenancy would not by itself, divest a tenant of his status until eviction order was passed.
---Ss.2(j), 14, 15 & 21(1)--Transfer of Property Act (IV of 1882), S.111--Status of tenant, termination of--Secure status acquired by tenant, held, could not be put to end except by judicial order passed on certain specified grounds provided under Ss.14 & 15--Such status would not come to an end in any of ways mentioned in S.111 of Act IV of 1882, like efflux of time, or by service of notice Tenant would continue to be tenant until eviction order is passed against him.
---Ss.2(f)(j) & 15--Relationship of landlord and tenant after expiry of tenancy agreement, determination of--After expiry of tenancy agreement executed between landlord and tenant, rights and liabilities of tenant, held, would be governed by provisions of Ordinance XVII of 1979 regulating terms as to his eviction.
Ali Amjad for Appellant.
Farooq H. Naeek for Respondent.
Date of hearing: 16th February, 1987.
This appeal has been filed on behalf of the appellant /applicant for setting aside the dismissal order.
The eviction application had been filed on behalf of the applicant who is owner of the building on plot No.A-289, Block 'C' North Nazimabad, Karachi. It is not in dispute that the respondent was inducted as tenant in the said house on 1-5-1984 at a monthly rent of s.1600/-. It is the case of the appellant that an attaining the age of superannuation he retired from the State Bank service with effect from 4-1-1985 as per Staff Order 17 dt. 3-1-1985. It is the case of the appellant that he required the house in question for his personal use. The appellant also served notice dated 11-6-1985 under Section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). As the respondent failed to hand over vacant possession of the premises in dispute, the appellant filed eviction application No.2714/1985 against the respondent on the ground of personal requirement.
The eviction application was contested by the respondent. According to the respondent the said application was hit by Section 14 of the Ordinance and had been filed as a counterblast on refusal the respondent to increase the rent. The application was also hit subsection (2) of Section 14 of the Ordinance. During the pendency he eviction application the respondent moved an application under section 151 CPC read with section 19 of the Ordinance. The case of the respondent as set out in the application is that there exists no relationship of landlord and tenant between the parties. The appellant filed counter affidavit and resisted the application.
The learned Controller on a consideration of the arguments advanced by the learned counsel for the parties, came to the conclusion that the provisions of Section 5 of the Ordinance are mandatory and the agreement dated 1-5-1984 was not attested as required by the provisions of Section 5, as such the application would be incompetent. This view of the Controller is founded on the use of the expression "shall" in that part of the Section by which power is conferred on the Court to accept proof of the relationship of the landlord and tenant between the parties by the original deed duly attested under subsection (1) of Section 5 of the Ordinance. The decision of the Controller is also founded on the decision of this Court in the case of Habib Ahmed v. Liaquat Hussain (P L D 1985 Kar. 741) in which my brother Mr. Munawar Ali Khan, J. (as he then was) held as follow:
"It would be noticed from the subsection (1) of above section that every agreement by which any premises is to be let out has got to be reduced to writing. The use of word "shall" in the said subsection denotes the intention which clearly is that it is mandatory for the parties to have such agreement in writing. In other words the oral agreement in respect of such transaction will have no legal force and hence will not be permitted to be used as the basis for any litigation in respect of any matter including ejectment of tenant under the Ordinance. This is clear for subsection (2) hereinabove which requires the written agreement to be produced and accepted as proof of the relationship of landlord and tenant between the parties."
In the above referred decision, it is further held as under:----
"Thus the learned Rent Controller had no jurisdiction to entertain the ejectment application which could be dismissed for want of written agreement alone."
The relevant Section 5 reads thus:---
(1) The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registrable under any law for the time being in force, it shall be attested by, signed by and sealed with the seal of, the Controller within whose jurisdiction the premises is situated or, any Civil Judge or First Class Magistrate.
(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registrable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registrable, the original deed duly attested under subsection (1), shall be produced and accepted in proof of the relationship of the landlord and tenant".
Interpreting the expression shall mandatory in the aforesaid section, my learned brother Munawar Ali, Khan, J. was of the opinion that as the agreement executed between the parties was not attested as required by subsection (1) which would show non-compliance with the provisions of subsection (1) and therefore the landlord will have to bear the consequences thereto. My learned brother further observed that once an agreement is not attested, the agreement becomes useless and therefore oral agreement in respect of such transaction would have no legal force and would not be permitted to be used as basis for any litigation in respect of any matter including eviction of tenant,
I am unable to accept the contention of the learned counsel for the respondent that the word 'shall' is mandatory. It is well settled that no general rule can be laid down to decide whether a provision is mandatory or directory. The use of the word 'hall' prima facie indicates that the provision is imperative in character.
The use of the word 'shall' though generally taken in mandatory sense does not mean that in every case it shall have that effect. The question whether a statute is mandatory or directory depends upon the intent of the legislature which has to be ascertained by considering the nature of the provision, its design and the consequences which would follow from construing it one way or the other. Further, when the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void, acts done in neglect of this duty would work serious general inconvenience and at the same time would not, promote the main object of the Legislature it has been practised to hold such provisions to be directory only.
Bearing these principles in mind, it may be considered whether the requirement of an agreement in writing to be attested by, signed by and sealed with the seal of the Controller or any Civil Judge or ' First Class Magistrate is mandatory. It is specifically provided that the agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registrable under any law for the time being in force, it shall be attested by, signed by and sealed with the seal of, the Controller or any Civil Judge or First Class Magistrate. It is also specifically provided that the original deed duly attested under subsection (1) shall tie produced and accepted in proof of relationship of the landlord and tenant, there is no, such provision indicating the consequences of non-attestation. The Legislature which took care to provide for the attestation of the agreement did not choose to lay down the consequence's for not attesting the written agreement. If it was the intention that in the absence of any attestation the agreement is a nullity, there was -no difficulty for the Legislature in making a specific provision to that effect. There is thus intrinsic evidence in the section itself which would indicate that the requirement of the attestation of agreement in writing contained in section 5(2) is not mandatory.
It seems that the intentment of the Legislature is not that it used the word 'shall' as imperative as to render the tenancy agreement as nullity in law. It is advantageous to reproduce the following passage from Crawford, on Statutory Construction (Edition 1940, Article 61, P-516).
"The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also while considering its nature, its design and consequences which would follow from construing it the one way or the other".
I find myself unable to agree with the proposition of law laid down in tile above judgment of my brother Munawar Ali Khan, J. This case was noted in Mst.Fatima v. Mst.Hanifa 1986 C L C 1613 and the view taken was not approved by my learned brother Saleem Akhtar, J. This question has been considered by my learned brother Saleem Akhtar, J. in the above decision in which my learned brother has come to the conclusion after giving cogent reasons, which are supported by various decisions of superior Courts discussed by him in the said judgment that the provisions of section 5 are not mandatory and they are procedural in nature and, if the agreement of tenancy in writing is not in terms of section 5, then neither it is invalidated nor the parties are debarred from proving the relationship of the landlord I and tenant by producing such agreement. I am in respectful agreement with this decision of my learned brother Saleem Akhtar, J. for the reasons given by him in his said decision and as such I am of the opinion that the impugned order cannot be sustained.
This case may be considered from another aspect, that is, under the general law relating to landlord and tenant, as contained in the Transfer of Property Act, 1882, a tenant can be sued for eviction at any time after the contractual tenancy stands determined in one of the modes provided in section 111 of the Act, for example, by efflux of the period fixed or by notice to quit etc, and the tenant thus ceases to be tenant. But from the time of the First World War and particularly during the period immediately after the World War, when accommodation became very scarce, it was necessary to give special protections to the tenants against of rent and also eviction in supersession of the ordinary law of landlord and tenant as contained in the Transfer of Property Act. The Sind Rented Premises Ordinance was enforced with effect from 21st November, 1979. Section 6 reads as under:-
"Tenure of tenancy; 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;
Section 15(2)(i) reads as under:----
"(i) the tenancy has ceased to be valid under Section 6";
Section 13 of the Ordinance provides that no tenant shall be evicted from the premises in his possession except in accordance with the provisions of the Ordinance.
The net result is that once the provisions of the Ordinance are available to a tenant, he begins to enjoy some sort of non-ejectability and such status of irremovability cannot be got rid of by landlord except on grounds specified in this Ordinance and therefore, even, if the tenant agreed to a tenancy for a fixed period only, automatically determinable on the expiry of the period so fixed, the Controller would be competent to pass eviction order on the ground of such expiration alone as such expiration of the period as one of the grounds specified in Section 15(2)(i) of the Ordinance but these provisions were omitted by Ordinance No.IV of 1984. Controller would be competent to pass eviction order on the ground of such expiration alone before the omission of the above provisions. In other words, extra judicial termination or determination of tenancy would not, by itself, divest a tenant of his status until an eviction order is passed.
A bare perusal of this provision would leave no manner of doubt that the tenant has now acquired a very much secured status which cannot be put to an end except by a judicial order passed on certain specified grounds provided under Sections 14 and 15 of the Ordinance and does not come to an end in any of the ways mentioned in Section 111, Transfer of Property Act, like efflux of time, or by service of a notice. This Ordinance defines a word "tenant" in section 2(j) of the Ordinance which means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes any person who continues to be in possession or occupation of the premises after the termination of his tenancy.
The relevant provisions make it clear that a tenant would continue to be a tenant until an eviction order is passed in an eviction application on one or more of the grounds specified in the Ordinance and that, until such order, the tenancy continues in law. As is well known, in the case of a contractual tenancy not governed by the Rent Laws, but governed by the provisions of the Transfer of Property Act, only a tenant could never be sued for eviction and who could and was in fact sued was an ex-tenant i.e. whose contractual tenancy has stood determined by the efflux of time, by a notice to quit or the like. Section 15 of the Ordinance provides that where a landlord seeks to evict the tenant otherwise than in accordance with Section 14, he shall make an application to the Controller. Subsection (3) of Section 14 provides that where the tenant has failed to deliver possession of the building under subsection 1, the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner. The Ordinance has made it quite clear that the tenancy is to continue until determined by an eviction order in an eviction application and that pre-application termination of tenancy is of no relevance or the agreement of tenancy in writing is not in terms of section 5. That being so, under the Ordinance, a tenant would be enjoying all the benefits and protections of the Ordinance, in spite-of the termination of his contractual tenancy or in spite of the agreement of tenancy in writing is not in terms of section 5.
Now ,I would like to deal with the merits of the case by referring to the evidence of the parties. It is not in dispute that the respondent was inducted as a tenant in the disputed house vide agreement of tenancy dated 1-5-1984. It was for a period of eleven months commencing from 1-5-1984 to 30-4-1985. It is also not in dispute that the appellant is the owner and landlord of the disputed house. It is also not in dispute that the respondent has been paying rent to the appellant. It is also not in dispute that the tenancy agreement was for a period of 11 months and it expired after the expiry of the agreement of tenancy.
The period of eleven months had expired on 30th April, 1985 and as such the said agreement cannot be relied upon by the respondent, the same has ceased to be in operation. After the said expiry of the tenancy, the tenant is to continue by virtue of the provisions of the Sind Rented Premises Ordinance and not on the basis of the expired agreement; so after the expiry of this agreement the rights and liabilities of the tenant fell to be governed by the provisions of the Ordinance which regulates the terms as to eviction.
For the foregoing reasons this appeal is accepted, the impugned order is set aside and the matter is remitted to the concerned Controller to proceed further with the case from the stage when the eviction application was dismissed and decide the same on merits in accordance with law. Parties through, their counsel are directed to put in appearance before the concerned Controller on 26-3-1987. As the matter is delayed, I direct that the case shall be acceded priority by the Controller and shall be disposed of within two months from 26-3-1987. In the circumstances of the case, there shall be no order as to costs. The above are the reasons of my short order dated 16-2-1987 passed on conclusion of arguments of learned counsel for the parties.
H.B.T./W-3/K Appeal accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer