' FAZAL-E-MIRAN CHAUHAN, J.---By filing this writ petition, the petitioner had called in question the interim order dated 30-10-2004 passed by Civil Judge 2nd Class/Rent Controller Sahiwal.
2. Briefly, the facts .Necessary for the disposal of this writ petition are that Jamil Ahmad Butt filed ejectment petition against the petitioner/respondent Abdul Majeed Butt regarding Shop No,16/B-IV situated in Ghass Mandi, Sahiwal. The original owner/landlord Jamil Ahmed Butt died during the pendency and his legal heirs filed the amended ejectment petition, who are now respondent in the present writ petition. The respondent Jamil Ahmed Butt sought ejectment of the petitioner on the ground of default as he failed to pay the rent as under:-- Less rent paid till August, 2002Rs,10,000 Default from September, 2002 to December, 2002Rs, 12,000 Default from January, 2003 to July, 2003.Rs,26,250
3. In the written reply to the ejectment petition, the respondent raised preliminary objections regarding maintainability of the ejectment petition, as well as, mala fide intention of the petitioner just to harass and stop the petitioner/respondent from claiming their share from Mst. Zakia Butt vis-a-vis, the property situated in Singh Sabha Road near Sauri Gali, Sahiwal. However, in para. No,3 of their written reply, relationship of the landlord and the tenant was admitted. So far as the question of default is concerned, same was denied.
4. The learned Rent Controller, framea the necessary issues arising out of the divergent pleadings of the parties and fixed the case for evidence. In the meanwhile, an application was moved by petitioner/respondent (defendant) for staying the proceedings in the ejectment petition till the final decision of the civil suit filed by him for specific performance of the agreement against Jamil Ahmad Butt and other vis-a-vis. House No,262/B-II and 367/B-VII situated in Aihata Nos.6843, 6854, 6855, Khewat No,1205, Khatoni No,1236.
5. The legal heirs of Jamil Ahmad Butt, contested the application by filing written reply, wherein, it was contended that the petitioner (defendant) Abdul Majeed Butt had filed the application with mala fide intention to frustrate the proceedings of the rent matter. The suit for specific performance of contract was with regard different properties, owned by Mst. Zakia, wife of Jamil Ahmad Butt. The respondent/landlord's shop possession of the petitioner/defendant, was not subject-matter of the suit for specific performance of the contract, thus, the suit had no nexus with the ejectment petition and the application has been moved with mala fide intention just to delay the proceedings of the ejectment petition.
6. The learned Rent Controller, after hearing both parties; dismissed the application vide his order dated 30-10-2004, holding the same to be without force and the grounds that; the property, subject-matter of the ejectment petition is a shop, situated in Ghass Mandi, Sahiwal; the ownership of the respondent/landlord vis-a-vis., shop, and the relationship of landlord and tenant was admitted by the petitioner (tenant), the suit for specific performance is not regarding the property, which is the subject-matter of the rent petition, with this observation, the application was dismissed vide order dated 30-10-2004, which has been impugned by the petitioner in the instant writ petition.
7. It is contended by learned counsel for the petitioner that the learned Rent Controller had not applied his judicious mind to the facts and circumstances of the application and passed the order only keeping in view the property, mentioned in the ejectment petition and refused to exercise the jurisdiction in favour of the petitioner and dismissed the application; further contends that vide the agreement dated 21-11-1999, the petitioner admitted himself to be tenant of the property in dispute
(shop) only on the basis of an agreement mentioned in the agreement to sell of other property, which the wife of the petitioner agreed .To sell. Further contends that protection of possession was granted under section 53-A, of the Transfer of Property Act to the writ petitioner. Said section is not applicable to the agreement to sell but also to all types of agreement. Further contends that the learned Rent Controller illegally held that the tenancy is admitted, whereas, it was conditionally admitted by the writ petitioner because he was declared to be owner of 3/4th of the share of the property owned by Mst. Zakia Khanum keeping in view this aspect of the matter, he himself admitted to retain the possession by paying the rent. Further contends that the possession of the suit property with petitioner is on the basis of agreement to sell dated 21-11-1999 and not only as a tenant, because tenancy was conditional. Further contends that the petitioner has no other alternate efficacious remedy for the redressal of his grievance and that the writ petition against the interim order is maintainable in the rent matters.
8. Conversely, learned counsel for the respondents contends that the writ petition against the interlocutory order is not maintainable. The application for stay of the rent proceedings has been filed with mala fide intention just to delay the ejectment petition filed by the petitioner. Further contends that; property/subject-matter of the suit for specific performance is totally different than that the property/subject-matter of the rent petition. Since the relationship of landlord and tenant is admitted by the petitioner denying the allegation of default. Further contends that the appeals against the interim orders of the Rent Controller and resort constitutional jurisdiction against orders at intermediate stages arising out of the ejectment proceedings, should be discouraged. Reliance is placed in this behalf on Barkat Ali v. Muhammad Ehsan (2000 SCMR 556). Further contends that in the case of Mian Muhammad Abdullah v. District Judge, Sahiwal and 6 others (PLD 1985 Lah. 467 at page 470), it was observed that pendency of suit for specific performance of the contract.
Jurisdiction of the Rent Controller was not ousted to proceed with ejectment petition and such ejectment proceedings were not liable to be stayed. Further contends that mere fact that a suit for specific performance was instituted on the strength of some alleged oral agreement was hardly sufficient to obstruct ejectment proceedings.
9. Further contends that plea of agreement to sell of demised premises by tenant in his favour was taken and request for stay of proceedings was rejected. Reliance is placed on Allah Yar and others v. Additional District Judge and others (1984 SCMR 741) and Mian Muhammad Abdullah v. District Judge Sahiwal and 6 others (PLD 1985 Lah. 467). Further contends that a tenant claiming to be in possession of agreement to sell and ejectment order is validly passed in such case. It was held that tenant cannot be allowed to retain the possession of such agreement till the decision of his title by Civil Court of competent jurisdiction is passed in his favour. In the instant case, suit for specific performance, regarding other property filed by the petitioner is pending adjudication before the Civil Court. Petitioner cannot claim that proceedings before the Rent Controller in respect of the shop be stayed till decision of suit for specific performance.
10. I have heard learned counsel for the parties, perused the record and the relevant case-law on the subject. Admittedly, the petitioner is a tenant in the disputed premises under the respondents at the monthly rent of Rs,3,000 per month. The petitioner defaulted in payment of rent and ejectment petition was filed.During the pendency of the ejectment proceeding, suit for specific performance of contract was filed against Jamil Ahmad Butt (deceased) and his wife Mst. Zakia Khanum. The said suit is pending adjudication before the Civil Court and has to be decided on its own merits in accordance with law, whereas, the present ejectment petition filed by the respondents is with regard the shop in possession of the petitioner (tenant) in which tenancy is admitted. The learned Rent Controller had to decide the question of default after recording evidence of the parties. The jurisdiction of the Rent Controller to proceed with the ejectment application to decide the same is not ousted. In this view of the matter, it is held that filing of the suit for specific performance instituted subsequent to the ejectment proceedings does not, in any manner, obstruct the ejectment proceedings, especially when the same is not with regard other property and not subject-matter of ejectment proceeding. The writ petition has no merit; it is accordingly dismissed.