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Petitioner: IBRAHIM ISMAIL VS Respondent: BRIG. (RETD.) S. H. A. GARDEZI
Court Name: Sindh High Court Judge(s): k.A Ghani Title: IBRAHIM ISMAIL vs BRIG. (RETD.) S. H. A. GARDEZI Case No.: First Rent Appeal No. 1003 of 1980 Date of Judgment:1981-02-06 Reported As: PLD 1981 Karachi 622 Result: Appeal allowed
JUDGMENT
JUDGMENT This appeal arises out of an order passed by the II Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 6540/80 on an application filed by the -respondent under section 14 of the Sind Rented Premises Ordinance, 1979. 1. The respondent/landlord, a Government Officer retired on 17th October, 1966. He having been born on 5th September, 1911 attained the age of 60 years on 5th September 1971. He rented out the premises No. 165/A, Block 3, P. E. C. H. S.; Karachi, to the appellant an agreement dated 9-7-1965 for a period of three years commencing not later than 31-7-1965 at Rs. 1,000, per month. A sum of Rs. 12,000 was paid as advance rent for one year. The agreement provided that upon the expiry of the said period the lease was renewable for such period and on such terms and conditions as may be agreed upon by the parties. 2. On Ist August, 1975, respondent wrote a letter to the appellant wherein he stated that the cost of construction of bungalows had very much increased and the bungalow in question being of oldish style would fetch him Rs. 2,000, p. m. At least and that he had couple of offers through estate agencies. He further stated that realising the fact that the appellant had during his occupancy well maintained the house and had been prompt in payment of rent, he did not find adequate courage to ask the appellant to vacate the said bungalow. He however pointed out to the appellant that if he vacates the said bungalow he could let it out to any other tenant with reasonable rent and would also receive two years advance rent. He further stated as follows:- "This will bring me decent amount, which will help me in completing the house in defence. I am so short of money that construction work is more or less standing still.
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If you give me 3 years rent in advance, as a Qarz-e-Hasna. It will help me in completing my project well in time and I will give on advance rent my Defence Society's Bungalow, by which I will pay up my debts to Habib Bank and thus save myself from paying interest on it to the Bank. This saving of interest, I will consider it as if you have enhanced the rent." The offer made by the respondent was accepted by the appellant who sent a cheque for Rs. 24,000, as advance rent for two years to the respondent alongwith his letter of 26th August, 1975. The appellant wanted adjustment of Rs. 8,000, on account of the repairs which he had carried out and which according to him were adjustable towards the rent in pursuance of the terms agreed by the respondent. However the respondent/landlord insisted upon payment of the total sum viz. Rs. 30,000, as demanded by him by his letter of 1st August, 1975. Accordingly the appellant sent him another amount of Rs. 6,000, and thus made the total payment of Rs. 30,000. The case of the appellant which would be discussed hereinafter, is that the lease of the bungalow was thus renewed from August, 1975, pursuant to the letter of 1st August, 1975, written by the appellant and which was accepted by the appellant and acted upon by payment of Rs. 30,000, as advance rent for a period of at least 2J years from August, 1975, to January, 1978. 3. On 15th March, 1977, the respondent sent a cheque of Rs. 10,000, to the appellant/tenant purporting to be refund of part of the "Qarz-e-Hasna" out of Rs. 30,000, received by him pursuant to the letter of 1-8-75 mentioned above. The appellant claimed that the said amount was not Qarz-e- Hasna but was towards advance future rent of the said bungalow and accordingly he returned the said cheque to the respondent. The respondent refused to receive the said letter. 4. Some correspondence thereafter followed between the parties and ultimately the respondent on 5th April, 1977, filed an ejectment case (No. 1154/7/) against the appellant, tenant in the First Court of Rent Controller at Karachi in which he sought his ejectment on the grounds amongst others, that he required the said building for his personal bona fide use and for his wife and children. The above case was filed under sec--petition 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959. During the Pendency of the aforesaid case M. L. O. 20 was promulgated on 16th March, 1977. The respondent/landlord thereupon filed an application, on 18-8-1977 in the Court of the Rent Controller whereby he prayed, "the Court may be pleased to dismiss the above rent case as withdrawn." The learned Rent Controller on 20th August, 1977, passed the following order:- "The withdrawal is allowed. The case stands withdrawn and dismissed as such." 5. An application thereafter was filed by the respondent before the Summary Military Court under M. L. O. 20 upon which the appellant/tenant was ordered to hand over the vacant possession of the house in question to the respondent/landlord. A revision petition was preferred by the appellant but the same was dismissed by the Martial Law Administrator, "Zone C", Karachi by order passed on 16th October, 1977, which information was conveyed to the appellant under letter of 16th October, 1977. The appellant/ tenant filed a petition before the High Court being C. P. No. D-596/77. It may be mentioned here that on 19-1-1980 Sind Ordinance, No. 1. Of 1980, known as "Military Courts (Validation of Orders) Ordinance, 1980, was promulgated, whereby order passed by a Military Court at any time on or after 16-8-1977 in any proceedings under M. L. O. 20 made by Martial Law Administrator Zone "C" shall be deemed to have been passed under Sind Premises Ordinance and any such order as referred in subsection (1) of section 2 thereof was made appealable under section 2(2) to High Court. 6. During the pendency of the above-mentioned C. P. No. D-596/77 the respondent filed another ejectment case against the above-named appellant in the Court of the First Rent Controller Karachi being Rent Case No. 2595/78 on the ground of non-payment of rent as well as personal bona fide requirement of the landlord/respondent. The appellant filed written statement in the said case and raised amongst other the plea that earlier the landlord/respondent bad filed -a similar case being R.. C. No. 1154/77 which was withdrawn by him unconditionally and it was dismissed as
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such. The appellant /tenant denied the allegations and contested the case on various grounds. He also pleaded that the new . Case was barred under section 14 of the West Pakistan Urban Rent Restriction Ordinance 1959. The Rent Controller after recording the evidence allowed the said application and directed the appellant to vacate the said bungalow on the ground that the same was required by the . Respondent for his own personal and bona fide use. The ground of default in- payment of rent was however rejected. 7. The appellant/tenant filed an appeal in the High Court being (Rent Appeal No. 717/80) in August, 1980. The said appeal is still pending. 8. In the meantime on 21st November, 1979, Sind Rented Premises Ordinance (XVII of 1979), came into force, repealing West Pakistan Urban Rent Restriction Ordinance, 1959. The respondent/landlord thereupon filed yet another application for ejectment of the appellant/tenant under section 14 on 3-11-80 in the VII. Court of Rent Controller at Karachi which was registered as R. C. No. 6540 of 1980. This case was filed by the landlord on various grounds, namely:- `(i) That he was not in possession of any building owned by him. (ii) That he was Government Officer who retired on 17th October, 1966, and that he bad attained the age of more than sixty years. (iii) That he had sent notice on 7th September, 1980 under section 14 of the aforesaid Ordinance of 1979, as amended by Sind Ordinance No. XII of 1980, to the appellant/tenant informing him that he was required to deliver the vacant possession of, the said building within two months from the receipt of the said notice the appellant did not vacate the premises and therefore the said application had been filed. The application was presented on 13-11-80 without having been sworn and verified on oath. Show- cause notice was issued to the appellant of the aforesaid application by the Rent Controller directing/warning the appellant/ tenant in following terms:- "To the opponent above-named whereas the above-named applicant, has made application to this Court that copy of application under section 14 of the S. R. P. O. 1979, alongwith annexures attached. You are hereby warned to appear in this Court in person or by a pleader duly instructed on the 22 day of November, 1980, at 8 O'clock in the forenoon, to show-cause against the application failing, wherein, the said application will be heard and determined ex parte. . Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence struck out." 9. On 22-11-1980 when the case ;vas called in the morning for the first time the appellant/tenant was not present. The Rent Controller accordingly fixed the case for orders on 29-11-80 after hearing the arguments of the counsel for the respondent/landlord. On the same day however the learned Court recorded that Mr. Sabir Hussain Ansari, Advocate appeared for the tenant and made an application for adjournment on behalf of the appellant/ tenant. On the said application learned Controller passed the following order:- "Adjournment not possible as there is no justification for grant of time. However case is already fixed for order on 29-11-1980. In the mean--while he may come and inform the Court for any proceeding in the High Court." 10. On 29-11-80 appellant/tenant filed counter affidavit and the learned Controller passed the following order:- "Counsel for the parties present. Opponent counsel filed counter affidavit, fresh arguments heard. Put off to 30-11-80 for Judgment." 11. The learned Rent Controller without holding any inquiry oral or on affidavits by his order passed on 30-11-1980 allowed the application of the respondent/landlord and directed the
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appellant/tenant to handover the vacant and peaceful possession of the building to the respondent/landlord within a period of thirty days from the date of the said order. 12. Aggrieved by the aforesaid order the appellant preferred appeal to this Court under section 21 of the Sind Rented Premise Ordinance, 1979. 13. Mr. Khalid Ishaque, the learned counsel for the appellant in his arguments challenged the validity and legality of the impugned order of the learned Rent Controller on the following three grounds:- (1) that the order of the learned Rent Controller is liable to beset aside on the ground that he did not hold any inquiry and the order passed against the appellant is against the law and principles of natural justice. (ii) that the respondent is in possession of three bungalows in the city. (iii) that be let out the building in question to the appellant/tenant by renewal of the lease, and thus by granting fresh lease after the respondent/landlord bad retired and had attained the age of sixty years, he was not entitled to invoke the provisions of section 14 of the Sind Ordinance of 1979. 14. In order to appreciate the contentions of the learned counsel for the appellant it is necessary to determine whether the Rent Controller could pass an order without making any inquiry and/or taking evidence and is he bound to give an opportunity to the tenant to show and rebut the facts or allegations made by the respondent/landlord in the application filed under section 14 of the aforesaid Sind Ordinance of 1979. We, therefore first refer to the relevant provisions of the Sind Rented Premises Ordinance, No. XVII of 1979, promulgated on 21st November, 1979. The preamble of the said Ordinance provides that it has been promulgated to make effective provisions for regulation of relations between the landlord and tenants and protect their interests in respect of rented premises within the urban areas., Section 13 thereof reads as follows:- "No tenant shall be evicted from the premises in his possession except in accordance with the provisions of this Ordinance." Then follows section 14 under which the application was filed for eviction by the respondent/landlord on 13-11-1980 and was registered as R. C. No. 6540/80 before VII Court of Rent Controller at Karachi and out of which this appeal has arisen. Section 14 of the Ordinance; as amended, is reproduced herein below:- "Delivery of vacant possession.-(1) Notwithstanding 'anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof: Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has become widow or orphan. (2) The landlord shall not be entitled to avail the benefit of sub--section (1) if he is in occupation of a building owned by him in any locality. (3) Where the tenant bas failed to deliver the 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, by using such force as may be necessary." It may be noted here that in cases other than those which are governed by section 14 the landlord who seeks ejectment of his tenant has to apply to the Controller under section 15 of the Ordinance which provides various grounds on which if the Controller is satisfied, may pass orders directing the
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tenant to put the landlord in possession of the premises within such period as may be specified therein. 15. The procedure for disposal of `cases which is required to be followed by the Controller is laid down by section 19 of the Ordinance. The learned counsel for both the parties extensively referred to this section which is therefore reproduced hereinbelow in extenso:- "Procedure.-(I) Where an application other than the application under section 14 has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed by him for reason to be recorded, issue a notice to the respondent to file written reply, if any, within such period not exceeding fifteen days of the receipt of the notice. (2) Where on the day fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse the Controller may, proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order. (3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence first of the applicant and his witnesses and then of the respondent and his witnesses. (4) A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the, other party and such other party shall have the right to cross-examine the witness on such affidavit and if the witness has been cross-examined the party producing the witness may re-examine him. (5) The Controller shall, instead of formally framing issues arising between the parties, state them briefly in the judgment and shall record findings on each such issue separately." 16. Mr. Khalid Ishaque, the learned counsel for the appellant while arguing the appeal contended that the Rent Controller is required to make inquiry as there is nothing in the Ordinance which excludes the application of principles of natural justice. The learned counsel submitted that principles of natural justice are not expressly excluded 'from the proceedings in cases filed under section 14 of .The Ordinance, therefore, the Controller was bound to hear and give an opportunity to the appellant/tenant of being heard and to show cause. He relied upon Abdul Latif's case (1), where in section 66 of the Punjab Land Revenue Act which is reproduced hereinbelow came up for consideration:- "A statement of account certified by a Revenue Officer shall be conclusive proof of the existence of an arrear of land revenue, of its amount and of the person who is the defaulter." It would be seen that inspite of the language of the section it was held by the hon'ble Court:- "It is therefore manifest that before the operation of the machinery for realization of arrears the author concerned must decide whether there is arrears or not." The Public Accountants Default Act or the Revenue Recovery Act did not contemplate anything like hearing in a Court of justice and that no procedure was prescribed as to how the accounting party has to be heard in connection with the allegation made against him, yet the Hon'ble Supreme Court cited with approval the following observations made in the case of Spackman v. Plumstead (2): (1) PLD 1962 SC 384(2) (1.885) 10 A C 229 "No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than at substantial requirements of justice shall not be violated. He is not a Judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice. But it appears to me to be perfectly consistent
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with reason that the statute may have intentionally omitted to provide for form, because this is a matter not of a kind requiring form, not of a kind requiring litigation at all, but requiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound such consideration as in their judgment ought to be brought before him. When that is done, from the nature of the case, no further proceedings as to summoning the parties, or as to doing anything of that kind which a Judge might have to do, is necessary." The Hon'ble Supreme Court in the above-mentioned case also referred to the cases of Dina Suhrab Katrak (1) and Messrs Farid Sons Ltd. (2), and the following observations from the opinion of Hon'ble Mr. Justice S. A. Rehman (as he then was) were quoted to point out the absolute necessity of compliance with the requirements of principles of natural justice. The observations case reproduced hereinbelow:- "This Court laid it down as a rule in Chief Commissioner, Karachi v. Messrs Dina Suhrab Katrak that the maxim: audi alteram partemNo man shall be condemned unheard' applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Even if, therefore, the proceedings before the Chief Controller were neither strictly judicial nor even quasi-judicial in character, the principle of natural justice embodied in the above maxim could be called in aid by the appellants." The learned Judges while dealing with the facts of that case observed: "The action favoured of inquisition and a determination of guilt and clearly requirements of a notice coupled with an opportunity of hearing in advance were attracted to the case." 17. Relying upon the above authoritative observations, the learned counsel for the appellant submitted that as in Abdul Latif's case referred to above, there is nothing either in section 14 or section 19 of Sind Rented Premises Ordinance, 1979, militating against the grant of an opportunity to the defaulter tenant who allegedly failed to deliver possession of the building under subsection (1) of section 14 to the landlord, of showing cause, defending himself and of being heard. The learned counsel in fact based these submissions by quoting the observations to this - effect made by the Hon'ble Mr. Justice Fazal-e-Akbar in Abdul Latif's case at page 394 of the above report. I may here, before proceeding further in the matter, would like again to refer to the show-cause notice itself which was issued by the learned Controller to the appellant/tenant and which has already been reproduced above in paragraph No. 8. (1) PLD 1959 SC (Pak.) 45(2) PLD 1962 SC 394 It would be seen that the show-cause notice issued by the learned Controller itself expressly contemplated that the appellant was to appear before him and was entitled to show cause against the application under section 14 of the Ordinance filed against him. 18. It is now well settled, that compliance with principles of natural justice is a condition which must be read as a part of every statute dealing in the proceedings where any person or body of persons is empowered to take decision after post facto investigation into facts which would result in the consequences affecting the person, property or other rights of any other person and that in the absence of any express words in the enactment A giving such power excluding the application of the principle of natural justice implies that the power is to be exercised in accordance with the principle of natural justice. Thus an order affecting the right of a party cannot be passed by the Controller without an opportunity of hearing being given to the tenant against whom a case is filed under section 14 of the Sind Ordinance, 197), as this principle is to be read in every enactment in the absence of the provisions to the contrary. Reference may also be made here to the case of Commissioner of Income-tax v. Fazalur Rehman (1) and Province of East Pakistan v. Nur Ahmed (2). Mr. Khalid Ishaque, the learned counsel for the appellant also referred to a case from the Indian Jurisdiction A. K. Gopalan v. State of Madras (3), where the learned Judges while dealing with the
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application of principle of natural justice and its requirements observed as follows :- "Mr. Nambiar urged that the word `law' in Art. 21 should be under--stood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice--the jus naturale of the civil law-and that the expression "procedure established by law' meant the same thing as that famous phrase "due process of law" in the American Constitution in its procedural aspect. Numerous American decisions were cited to show that the phrase implied the basic requirements of, (1) an objective and ascertainable standard of conduct to which it is possible to conform, (2) notice to the party of the accusation against him, (3) a reasonable opportunity for him to establish his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment. Mr. Nambiar conceded that these requirements might have to be modified or adapted to suit the nature of the particular proceeding and the object it had in view, as for instance, in a case of preventive detention, previous notice, which, might result in the person concerned going underground might be dispensed with. Learned counsel insisted that these requirements, being the very core of the principles of natural justice which transcended all State-made laws, must be substantially complied with by any law governing the process of deprivation of life or personal liberty, subject, of course, to any express provision in the Constitution sanctioning the irrelaxation or dispensation in any case or class of cases. He also appealed to the Preamble of the Constitution as the guiding star in its interpretation to support his thesis that, in view of the democratic Constitution which the people to give themselves guaranteeing to the citizens certain Fundamental Rights which are justiciable, the provisions of Part III must be construed as being paramount to the legislative will, as otherwise the so-called Fundamental Right to life and personal liberty would have no protection against legislative action, and Art. 13(2) would be rendered nugatory."…
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