(36) Where the landlord construct the building as aforesaid the tenant who was evicted from the old building may, before the completion of new building and its occupation by another person, apply to the Controller for an order order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation and the Controller shall make an order accordingly
In respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of tenant, he deems just and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality.
(37) It is pertinent to mention that while making Rent Laws the legislature has ignored an important factor which is that there must be distinction while initiating Ejectment proceedings against the tenants occupying residential bui8lding and those tenants who are occupying commercial Buildings. The tenant who is occupying the premises on “Good will” basis or the tenant obviated from paying the Good Will.
(38) In a residential building there may be a family consisting of two person buy by the passage of time the number of persons can be increased, as such the bona fadies of the landlord can not be disputed on the other hand a shop was rented out to a tenant and the tenant by doing arduous labour and/or by fatiguing exercise establish the shop/ business in one or two years at this juncture if the landlord sought his Ejectment on the ground of personal need then in my humble opinion this is not a noble act because the tenant laboured day and night and bring the tree in a position to give fruit then the landlord is asking the tenant to keep away from the tree.
(39) One more thing which the legislature has ignored is that tenant occupying the premises on good will basis. Tenancy on Good will basis is/was prevailing in all the big cities especially in the city of Karachi more or less all the old tenants are occupying the premises on good will basis and in some of the cases have paid more than the amount of tenement on which amount it could be sold out but even then no protection is available with them and despite payment of a huge amount there status is of just like an ordinary tenant and a sword of ejectment is always hanging upon them. Undisputedly Karachi is the biggest city of the country where accommodation problem is very acute, the owners of old flats, offices, building and shops are generating money due to deep-rooted feudal, which requires amendment or cancellation.
In fact there must be separate laws for the following categories
(i) Residential Building
(ii) Commercial Building
(iii) Tenancy without paying Good will.
(40) Section 15-A of the Ordinance deals with Penalty.
“15-A. Where the landlord, who has obtained the possession of a building under Section 14 or under Clause (VII) of Section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession, (i) he shall be punishable with fine which shall not exceed one year’s rent of the building or the premises, as the case may be, payable immediately before the possession was so obtained.”
41. Section 17 of the Ordinance deals with compensation for vexatious Eviction:-
Where the Controller in satisfied that any application made by a landlord for eviction of the tenant is frivolous or vexatious he may direct the compensation not exceeding ten times the monthly rent be paid by such landlord to the tenant.
42. Section 18 of the Ordinance deals with Change of ownership of the property.
Where the ownership of premises, in possession of the tenant has been transferred by sale, gift, and inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of Clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant.
43. It must be kept in mind that in case the ownership of any rented premises is changed by way of transfer, sale or gift or by any other mode, the new owner shall intimate in writing to the tenant by registered post about such change. The tenant is obliged to pay Rent within thirty days from the receipt of this letter regarding change of ownership. The new landlord can not initiate Ejectment proceeding against the tenant on the ground of default of payment of rent before expiry of thirty days. If the tenant has paid the rent within the stipulated period then he/she can not be deemed to be defaulter in payment of rent.
44. Section 21 of the Ordinance deals with Appeals. It may please be noted that under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 an aggrieved party had the right of filing two appeals 1st Appeal before the Learned District and Sessions Judge and the 2nd Appeal before the High Court. But in Sindh rented Premises Ordinance, 1979 has curtailed right of two Appeals and only one Appeal before the High Court is permissible. On 17th April, 2001 Section 21 of the Ordinance has been amended and now the Appellate Authority is the District Judge Relevant lines from Section 21 of the Ordinance are reproduced for convenience of the readers. Section 21 Appeal – Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the District Judge having jurisdiction in the area where the premises in relation to which the order is passed. (2) the Appellate Authority may pending the final disposal of the Appeal, grant injunction staying further proceedings or action on the order of the Controller.
Provided that no injunction shall be granted if the Appeal has been preferred from the order under Section 14.
It may be noted that any person aggrieved by the order of a Rent Controller passed under Section 14 or Section 15 of the Ordinance can be impugned before the Appellate Authority but no injunction can be granted if the order is passed under Section 14 of the Ordinance.
45. One more thing which the legislature has ignored that Revision jurisdiction is totally ousted from the Rent Laws. No doubt C.P.C (Civil Procedure Code) is not applicable to the rent proceedings but it was held in many cases that despite exclusion of C.P.C from the Rent Laws its general principle will applicable to Rent Laws for the simple reason that Rent proceedings are also of civil nature.
46. A bare reading of Section 20 and Section 23 of the Ordinance will reveal that the Controller and the Appellate Authority shall for the purpose of any case under this Ordinance have power of a Civil Court under the Code of Civil Procedure 1908.
For the convenience of the readers Section 20 and Section 23 is noted below:
Power of Civil Court – Subject to this Ordinance, the Controller and the Appellate Authority shall, for the purpose of any case under this Ordinance, have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the mattes, namely:
(a) Summoning and enforcing the attendance of any person and examining him on oath,
(b) Compelling production or discovery of documents,
(c) Inspecting the site; and
(d) Issuing commission for examination of witnesses or documents.
Judicial Proceedings: the Controller and the Appellate Authority shall be deemed to be a Civil Court within the meaning of Section 480 of the Code Criminal.
Procedure, 1898 (Act V of 1898)
47. Thus it is crystal clear that the Controller or the Appellate Court is the Courts of Civil Jurisdiction as such taking away the Power of Revision from the Appellate Court is illogical and unwise. The other name of the Revisional Jurisdiction is the Supervisory Jurisdiction, which is inherent power of the Superior Courts.
48.A bare reading of Section 21 of the Ordinance will manifest that any party aggrieved by an order not being an interim order made by the Controller may within thirty days of such order prefer an appeal. I think it necessary to make it clear that the word order means in this section means a final order meaning thereby allowing or dismissing the main application.
49.Any order passed not a final order in other words any order interim in nature can not be impugned before the Appellate Authority as such the aggrieved person has to invoke Constitutional Jurisdiction Under Article 199 of the Constitution of the Islamic Republic of Pakistan if he/she aggrieved by an interim order.
50.Section 15-A of the Ordinance, this section is a sort of safe Guard against the unjustified Ejectment of tenant; unfortunately this section has rarely come into operations. Any way the provision contained therein are very good check against the ulterior motive of the landlord for seeking Ejecment of tenant from the rented premises on the ground of personal bonfire need/requirement.