PLJ 2012 SC 180
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J.,
Khilji Arif Hussain & Tariq Parvez Khan,
JJ.
JAVED KHAN
ABBASI--Petitioner
versus
ZUBAIR ASLAM and
others--Respondents
Civil Petition
No. 1430 of 2011, decided on 17.10.2011.
(On appeal from
the judgment dated 08.7.2011 of the Islamabad High Court, Islamabad passed in W.P. No. 2346 of 2008).
----S.
1(2)--S.R.O. No. 83(RE)/02 dated 19.7.2002--Constitution of Pakistan, 1973,
Art. 185(3)--Leave to appeal--Islamabad Capital Territory--Ejectment
petition--Defaulted in payment of rent--Denied relationship of landlord and
tenant--Preliminary objection about maintainability of rent case--Orders passed
by Rent Controller as well as by Appellate Court were challenged before
Islamabad High Court which was dismissed--Challenge to--Urban Property became
effective on date of notification--Validity--Rent Controller decided ejectment petition after acquired jurisdiction--No
prejudice had been caused to the petitioner, by deciding ejectment
application by Rent Controller after he acquired jurisdiction during pendency
of the petition--Leave to appeal was refused. [P.
186] A
----S. 2-J(ii)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to
appeal--Islamabad Capital Territory--Ejectment petition--Petitioner
was not in possession of the premises--Premises was let out by deceased father
of petitioner--Legal heirs of deceased were inherited right of tenant--After
death of his father his brother was in possession as tenant--Notice was served
upon the petitioner--Validity--On account of death of tenant only members of
his family who continued to be in possession or occupation of building, rented
land can be termed as tenant and not of legal heirs of tenant who were not in
possession of premises, as only legal heirs who were actually in possession or
occupation of the premises after death of tenant became statutory
tenant--Petitioner was in possession of premises and passed ejectment
order--Leave to appeal was refused. [Pp.
184 & 185] B
Sardar Muhammad Aslam, ASC for Petitioner.
Nemo
for Respondents.
Date of hearing:
17.10.2011.
Judgment
Khilji Arif Hussain, J.--The petitioner,
seeks leave of the Court, aggrieved by the judgment passed by Islamabad High
Court, Islamabad
in Writ Petition No. 2346 of 2008 whereby learned Single Judge of the Islamabad
High Court dismissed the petition and maintained the orders passed by the Rent
Controller as well as by appellate Court.
2. Brief facts to decide the petition are that
Respondents No. 1 and 2 filed ejectment petition
against the petitioner in respect of 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 08.7.2011,
hence this petition for leave to appeal.
4. Sardar Muhammad Aslam, ASC 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 sub-section (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 versus Capt. Sher Afzal, (PLD 1969 S.C 187),
it was held that:--
"The
principle has been admirably put by Crawford in his Book on Construction of
Statutes, 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 cases of 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 other hand, if the new procedural
statute is of such a 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 statures retroactively."
In the case of
Managing Director, Oil and Gas Development Company Ltd. Versus Syed Najmul Hassan Naqvi, (2005 SCMR 89), it was held that:
"Quite an
anomalous situation would it be that on the one hand and at the initial stage,
by serious omission, the timely return of appeal is avoided and the cause of
action is allowed to mature during pendency and, 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 returned. Failure to do so
debars the Tribunal to subsequently jeopardize the rights and bona fide claims
of the appellants. We, therefore, conclude that a premature appeal before the
Tribunal requires to be 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 by 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 2 J(ii) 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.
(R.A.) Leave refused
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