2012 S C M R 248
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ
JAVED KHAN ABBASI---Petitioner
ZUBAIR ASLAM and others---Respondents
Civil Petition No.1430 of 2011, decided on 17th October, 2011.
(On appeal from the judgment dated 8-7-2011 of the Islamabad High Court, Islamabadpassed in W.P. No.2346 of 2008).
(a) Islamabad Rent Restriction Ordinance (IV of 2001)---
----Ss. 1(2), 2(k) & 17---SRO No. 83(RE)/02 dated 19-7-2002---Constitution of Pakistan, Art. 185(3)---Ejectment petition---Default in payment of rent by tenant, ground of---Ejectment order passed by Rent Controller was upheld in appeal and constitutional petition by Appellate Court and High Court respectively---Tenant's plea was that ejectment petition filed on 29-1-2003 was not entertainable by Rent Controller as jurisdiction to decide same vested in him subsequently through notification dated 29-6-2004 issued under S. 1(2) of Islamabad Rent Restriction Ordinance, 2001---Validity---Federal Government for the purposes of Islamabad Rent Restriction Ordinance, 2001 had specified urban areas by S.R.O. No. 83(RE)/02, dated 19-7-2002 issued under S.2(k) thereof and had extended thereto jurisdiction of Rent Controller through notification dated 29-6-2004 issued under S.1(2) thereof---Demised premises was situated within such specified urban area---Rent Controller had decided ejectment petition after having acquired jurisdictionduringitspendencythroughsuchnotificationdated 29-6-2004---Supreme Court dismissed petition for leave to appeal in circumstances.
Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 The State v. Muhammad Jamil and Muhammad Alam v. The State; Managing Director Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi 2005 SCMR 89 rel.
----Tribunal/court lacking jurisdiction to entertain a lis at time of its institution could decide the same subsequently, if acquired jurisdiction during its pendency---Principles.
Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Managing Director Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi 2005 SCMR 89 rel.
(c) Islamabad Rent Restriction Ordinance (IV of 2001)---
----Ss. 2-J(ii) & 17---Ejectment petition---Denial of relationship of landlord and tenant by respondent on ground that after death of his father, his brother remained in possession of suit premises---Validity---Suit premises was rented out to father of respondent---Notice of ejectment petition was served upon respondent at suit premises--- Respondent's brother had not come forward to protect his possession over suit premises by claiming to be its tenant---According to S. 2-J(ii) of Islamabad Urban RentRestriction Ordinance, 2001, after death of a tenant, his legal heir(s) actually remaining in possession/occupation of premises would become statutory tenants thereof---Evidence available on record showed that respondent was in possession of demised premises---Petition for leave to appeal against the order of the High Court was dismissed.
Sardar Muhammad Aslam, Advocate Supreme Court for Petitioner.
Nemo for Respondents
Date of hearing: 17th October, 2011.
KHILJI ARIF HUSSAIN, J.---The petitioner, seeks leave of the Court, aggrieved by the judgment passed by Islamabad High Court,IslamabadinWritPetitionNo.2346of2008wherebylearned SingleJudgeoftheIslamabadHighCourtdismissedthepetitionandmaintainedtheorderspassedbytheRentControlleraswellas by appellate Court.
2. Brieffactsto decide the petition are that respondents Nos.1 and2filedejectmentpetitionagainstthepetitionerinrespectof Shop No.5, Block No.3, Sector F-6/1, Class-III Shopping Center, Farooqia Market, Islamabad on the ground that the petitioner has committed default in payment of rent despite repeated demand and request made by the respondents. The petitioner in his written statement denied the relationship of landlord and tenant and raised preliminary objection about the maintainability of the rent case under Islamabad Rent Restriction Ordinance, 2001 (hereinafter referred to as the 'Ordinance').
3. After framing the issues and recording the evidence, Rent Controller, vide judgment dated 31-7-2007 accepted the ejectment petition filed by the respondents.The petitioner filed appeal against the said judgment under section 21 of the Ordinance, which was dismissed by the Additional District Judge, Islamabad vide his judgment dated 16-9-2008. The orders passed by the Rent Controller as well as by the appellate Court were impugned through writ petition before the Islamabad High Court,which too was dismissed vide the impugned judgment dated 8-7-2011, hence this petition for leave to appeal.
4. Sardar Muhammad Aslam, Advocate Supreme Court for the petitioner, vehemently contended that the Rent Controller was competent to entertain and try the ejectment petition only after 24-6-2004 when the Notification under section 1(2) of the Ordinance was issued, whereas the rent application was filed on 29-1-2003 on which date Rent Controller had no jurisdiction to entertain the same. It is further contended by the learned counsel for the petitioner that the petitioner is not in occupation of the premises in question,which has been occupied by one Khalid and as such the petitioner is not liable to pay the rent, if any,due in respect of the premises in question.
5. We have taken into consideration arguments advanced by the learned counsel for the petitioner and have perused the available record. From perusal of the record, it appears that respondents have filed ejectment application against the petitioner under the Ordinance,on 29-1-2003. Section 1(2) of the Ordinance defines that the Ordinance shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may, by Notification in the Official Gazette, specify. Section 2(K) of the Ordinance, defined urban area means such area or areas of the Islamabad Capital Territory as the Federal Government may, by Notification in the Official Gazette, specify.
6. By S.R.O. No. 83(RE)/02, dated 19-7-2002 in exercise of powers conferred by Clause (k) of section 2 of the Ordinance, the Federal Government specified the urban areas for the purpose of the Ordinance.
7. It is not disputed by the petitioner that the premises in question is situated within the area mentioned in the table for the purpose of the Ordinance. By another Ordinance dated 29-6-2004, in exercise of the powers conferred by subsection (2) of section 1 of the Ordinance, the Federal Government directed that the said Ordinance shall extend to the urban areas specified by Notification dated 19th July, 2002 and apply to all residential and commercial buildings and rented lands situated in the said urban area.
In the case of Adnan Afzal v. Capt. Sher Afzal, (PLD 1969 SC 187), it was held that:--
"The principle has been admirably put by Crawford in his Book on Construction o fStatutes,1940 Edition, page 581, as follows:-
"As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions."
This principle has also been fully adopted by this Court in the casesof The State v. Muhammad Jamil and Muhammad Alam v. The State
"The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the otherhand,ifthenewproceduralstatuteisofsucha character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
In the case of Managing Director, Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi, (2005 SCMR 89), it was held that:--
"Quiteananomaloussituationwoulditbethaton theonehandandattheinitialstage,byseriousomission, the timelyreturnof appealisavoidedandthecauseofactionisallowedtomatureduringpendencyand, on the other hand, at the fag end of proceedings, it is dismissed on the ground that the initial submission was premature. Such volte face if taken by the Tribunal cannot be endorsed under any canon of justice. The fact remains that premature matters are not bad but simply premature and must be retuned. Failure to do so debars the Tribunal to subsequently jeopardize the rights and bona fide claims of the appellants. We, therefore, conclude that aprematureappealbeforetheTribunalrequires tobe returned at the very first instance. If this course of action is not adhered to, the Tribunal subsequently, cannot damage the appellant on grounds of prematurity of appeal when the same had become mature during the pendency allowed by the Tribunal itself. The Tribunal, in the instant case, has rightly declined to dismiss the appeal on this score and moreover, this objection was not taken before the Tribunal either, by filing any concise statement."
8. From perusal of the record, it appears that the table appendix to Notification dated 19th July,2002 leaves no manner of doubt that the property is situated in an area which is specified in the said Notification to be urban area for the purpose of the Ordinance and that the Rent Controller who took cognizance of the matter was appointed in terms of section 7 of the Ordinance. Even if, we accept the contention of learned counsel for the petitioner, that the Ordinance in respect of the urban property became effective on the date of Notification issued under section 1(2) of the Ordinance i.e. 29-6-2004, the Rent Controller decided the ejectment petition after he acquired the jurisdiction. No prejudice has been caused to the petitioner, by deciding the ejectment application by the Rent Controller after he acquired the jurisdiction during the pendency of petition.
9. As regards the contention of learned counsel for the petitioner that the petitioner is not in possession of the premises in question, from the record, it appears that the premises was let out to the deceased father of the petitioner and the petitioner along with legal heirs of the deceased inherited the right of tenant. The petitioner alleged that after the death of his father namely Barkhurdar Khan his brother Khalid is in possession of the shop as a tenant. It appears that though the notice was served upon the petitioner on the premises in question, the said Khalid did not come forward to protect his possession, claiming that he is the tenant in occupation of the premises in question exclusively.
10. Section 2J(ii) of the Ordinance provided that on account of death of the tenant only members of his family who continued to be in possession or occupation of the building,rented land, can be termed as a tenant and not of the legal heirs of the tenant, who are not in possession of the premises, as only legal heirs who are actually in possession or occupation of the premises after the death of tenant became statutory tenant.
11. The Rent Controller as well as the Courts below,on the basis of evidence on record came to the conclusion that the petitioner is in possession of the premises in question and passed the ejectment orders.
12. In view of the foregoing discussion, we are of the view that the impugned judgment is eminently reasonable and proceeds on cogent grounds. The learned counsel for the petitioner has not been able to point out any legal infirmity in the impugned judgment, which could justify interference.
The listed petition is, therefore, dismissed being without merit and leave to appeal is refused.