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Civil Revision Application No. 29 of 1963, decided on 29th March 1963.

Repeal of Karachi Small Causes Court Act (IV of 1929) tender which vested right to take proceedings for ejectment had accrued‑Right not taken. away unless such intention is clear from repealing enactment.

Application under S. 18 filed before repeal of Act by Provincial Small Causes Court (Amendment) Ordinance (LI of 1962)‑Right to sue accruing under S. 23 can be enforced even after repeal of Act.

The Colonial Sugar Refining Company Limited v. Irving 1905 A C 369 ref.

Words "except in accordance with the provisions of this section"‑No method of ejectment valid except that provided in section‑Order obtained by landlord under S. 18, Karachi Small Causes Court Act, 1929 infructuous after its repeal by Provincial Small Causes Court (Amendment) Ordinance, 1962‑Karachi Small Causes Court Act (IV of 1929), Ss. 18, 23 & 24‑Pro vincial Small Causes Court (Amendment) Ordinance (LI of 1962), S. 7.

Fazalbhoy for Appellant.

A. C. Joshi for Respondent.

Date of hearing : 27th March 1963.

The facts out of which this revision petition has arisen, briefly stated, are as follows :‑

2. Respondent Mr. C. R. Machado, who claims to be the landlord of the property in dispute, after obtaining a certificate from the Rent Controller under subsection ( ) of section 10 of the Karachi Rent Restriction Act, 1953, before it was amended by Ordinance No. XLVIII of 1962, filed an application in the Court of Small Causes at Karachi, under section 18 of the Karachi Small Causes Court Act on the 1st May 1961, for ejectment of the petitioner, S. M. Hamid Ali, who was said to be occupying this property as his tenant. The Karachi Small Causes Court Act was repealed with effect from the 7th June 1962 and its place has been taken by the Provincial Small Cause Courts Act. In the last mentioned Act there is no provision corresponding to section 18 of the repealed Act.

3. The respondent's application under section 18 of the Karachi Small Causes Court Act was heard and disposed of by the Additional District Judge, Karachi, who was also exercising powers of a Judge, Small Causes Court, on the 8th January 1963. One of the pleas raised by the petitioner, in that case, was that as the Karachi Small Causes Court Act had been repealed with effect from the 7th June 1962, the relief asked for by the respondent, in the application under section 18 of the aforesaid Act, could not be granted to him. This plea did not find favour with the Court and, relying on section 6 of the General Clauses Act, it was held that in spite of the repeal of the Karachi Small Causes Court Act, the application under section l8 of that Act, which had been filed before the Act was repealed, could be granted and the petitioner's ejectment under the aforesaid provision of law could be ordered. As a result of this finding, the respondent's application was granted on the 8th January 1963 and the petitioner was ordered to be ejected from the property in dispute.

4. On the same date on which the petitioner's ejectment was ordered, namely, the 8th January 1963, he gave an application under section 24 of the Karachi Small Causes Court Act to obtain an order for stay of his ejectment, in anticipation of a suit for compensation for "trespass" as defined in section 23 of the Act. This application was refused by the Court by means of the following order passed on the 22nd January 1963 :‑

"The K. S. C. C. Act has been repealed on 7 6‑62. Hence no suit under section 24 of the same Act could be filed now. The application under section 18 of the above Act was filed prior to the repealing of the said Act hence it was to be decided under the provisions of that Act as provided by section 6 of General Clauses Act. I have therefore no power to grant stay under the provisions of an Act which is no more in force. This application is therefore rejected."

5. It is against this order that the present revision petition has been filed.

6. The petitioner's contention is that in accordance with section 23 of the Karachi Small Causes Court Act a suit for trespass, within the meaning of that Act, could be filed even before an order of ejectment of a tenant is passed under section 18 of that Act and, therefore, as the application under section 18 of the Act had been filed before the repeal of the Karachi Small Causes Court Act and as on the filing of that application a right had accrued to the petitioner to file a suit for compensation for trespass, that right can be enforced by him even now, in spite of the repeal of the Karachi Small Causes Court Act, because the repealing law did not take away that right expressly or by necessary implication. Sections 23 and 24 of the Karachi Small Causes Court Act, which have a bearing on the disputed question, are worded as follows :‑

"23. Liability of applicant obtaining order when not entitled. Nothing herein contained shall be deemed to protect any applicant obtaining possession of any property under this Chapter from a suit by any person deeming himself aggrieved thereby, when such applicant was not at the time of applying for such order as aforesaid entitled to the possession of such property.

Application for order in such case an act of trespass.‑And when the applicant was not, at the time of applying for any such order as aforesaid, entitled to the possession of such property, the application for such order, though no possession is taken thereunder, shall be deemed to be an act of trespass committed by the applicant against the occupant.

24. Stay of proceedings on occupant giving security to bring suit against applicant. Whenever on an application being made under section 18 the occupant binds himself, with two sureties, in a bond for amount as the Court thinks reasonable, having regard to the value of the property and the probable costs of the suit next hereinafter mentioned, to institute without delay a suit in the Chief Court against the applicant, for compen sation for trespass and to pay all the costs of such suit in case he does not, prosecute the same or in case judgment therein is given for the applicant, the Court shall stay the proceedings on such application until such suit is disposed of.

If the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order, if any, made under section 20."

7. The learned counsel for the petitioner, in support of his contention, relied on a case of the Privy Council reported as The Colonial Sugar Refining Company Limited v. Irving (1905 A C 369) at page 372 at which their Lordships made the following observations :‑

"As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well‑known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."

The observations made by their Lordships of the Privy Council, in this reported case, apply with full force to the present case, although in that case the question was of the 8 abolition of the right of appeal, while in the present case the question is whether the right to institute a suit to claim compensation for trespass, as defined in section 23 of the Karachi Small Causes Court Act, has survived the repeal of that Act. The right to file a suit under this provision of law being a substantive right and being not a matter relating to procedure only, it could be taken away by the Legislature, but the intention had to be expressed in clear words, or it could be gathered from the language used by necessary intendment. It was not intended that the Act repealing the Karachi Small Causes Court Act was to apply retrospectively and, therefore, as the application under section 18 of the Karachi Small Causes Court Act had been filed before that Act was repealed and as even before the application under section 18 was granted, the petitioner had a right to file a suit to claim compensation for trespass, as defined under section 23 of that Act, that right continues vest in him and can be enforced, although the Act under which the right had accrued is no longer in force. The view of the case taken by the trial Court, namely, that after the repeal of the Karachi Small Causes Court Act no proceedings under section 24 of that Act can be taken is, therefore, erroneous.

8. The matter, however, does not conclude here, because the provisions of the Karachi Rent Restriction (Amendment) Ordinance (XLVIII of 1962) having not been taken into account and as will be presently seen, one result of the amendments made by that Ordinance is that under section 10 of that Act the ejectment of a tenant in possession of a premises can be made only in accordance with the provisions of that section and an order of ejectment obtained under section 18 of the Karachi Small Causes Court Act can be of no avail to the landlord now. This is how subsection (1) of section 10 of the Karachi Rent Restriction Act, 1953, as amended by the Karachi Rent Restriction (Amendment) Ordinance XLVIII of 1962 reads :‑

"A tenant in possession of a premises shall not be evicted therefrom except in accordance with the provisions of this section."

The words which have been underlined by me above are very, significant and clearly indicate that no method of ejectment of a tenant in possession of a property can be valid, except that in section 10 itself which, as amended, empowers the Rent Controller alone to order ejectment of a tenant on certain specific grounds. If the order obtained by the landlord under section 18 of the Karachi Small Causes Court Act is no longer operative, no question of filing a suit to claim compensation for trespass, as C was envisaged by section 24 of the Karachi Small Causes Court Act would arise, and, consequently, the power conferred on the Court under that provision to stay proceedings of ejectment, in anticipation of the filing of a suit can no longer be exercised. On this view of the matter, I hold that the order of ejectment obtained by the respondent having become infructuous, the Court could not pass an order of stay of those proceedings under section 24 of the Karachi Small Causes Court Act and, hence, no question of remanding this case arises.

9. For reasons given above, I dismiss this revision petition, but make no order as to costs.

K. B. A./A. H.

Petition dismissed.

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