With the concurrence of learned counsel for the parties this case is being treated as Pacca Case.
2. Brief facts of the case are that the property in dispute was obtained by the father of the appellant on rent from the respondent for the first time through agreement dated 12.10.1986. Inter alia among the other conditions one condition was that the property in question shall not be got vacated from the appellant by the respondent's predecessor-in-interest or his legal heirs on the ground of personal need. This agreement was for a period of 11 months. After the death of the predecessor-in-interest of the respondent the tenancy continued with the respondent and various agreements/Rent Deeds were executed between the parties but the above-referred condition was not mentioned in any of the latter agreements/Rent Deeds. On 13.11.2000, a Rent Deed was executed on behalf of the appellant, the same was signed by the respondent but was refused to be signed by the appellant on the ground that above-referred condition is not incorporated in the same, therefore, he would not sign the same. In this background of the Ids the present ejectment petition was filed by the respondent on 13.12.2000. The same was contested by the appellant. After recording evidence of the parties, the learned trial Court vide order dated 8.2.2005, directed the eviction of the appellant. This order was assailed by the appellant through an appeal, which too was dismissed vide order dated 18.5.2005, hence this second appeal.
3. It is contended by the learned counsel for the appellant that despite expiry of the first agreement dated 12.10.1986, its conditions would continue in force till the tenancy exists between the parties and its effect will also be binding upon the legal heirs of the parties. He has also referred the Clause 2 of the first agreement to contend that the agreement as it is was extendable beyond a period of 11 months, therefore, the conditions of the said agreement were automatically being followed by the parties with mutual consent. Reliance is placed on PLD 1988 SC 190 (Mrs. Zarina Khawaja versus Agha Mahboob Shah).
4. It is further contended with reference to Section 13(3)(a)(ii) First Proviso that in view of this proviso read with condition No, 10 of the first rent note Exh. A/II the appellant could never be sought to be ejected on the ground of personal need, particularly, in view of Clause 2 of A/II and Clause 3 in Exh. A/II to A/VII that the tenancy of one year was agreed to be made renewable. It is next argued that respondent had admittedly signed the last agreement dated 13.11.2000, which also contained the condition of its further extendibility, therefore filing of the ejectment petition just after one month on 11.12.2000 speaks volumes about bona fide and good faith of the respondent's cause of personal need.
5. It is further argued that on refusal of the appellant to sign last agreement dated 13.11.2000 the respondent had entered into .an agreement to sell the property in question to the appellant on 23.11.2000 on the basis of which the appellant has already filed a suit for specific performance on 22.5.2001 against the respondent which is pending adjudication. The said sale agreement also stands established through the statements of PWs 3 & 4 to which there is no rebuttal. With reference to PLD 1993 Lahore 97 (Dr. Arslan Razzaq versus Ali Hussain), 1988 CLC 402 (Sardar Muhammad Anwar Khan versus Mian Asghar Ali), 2000 CLC 1684 (Miss Shazia Umar Choudhry versus Board of Intermediate and Secondary Education, Faisalabad through Chairman and 2 others) and 1991 SCMR 850 (Aleem-udDin and another versus Muhammad Aslam and 2 others) it is contended that, firstly, both the cases i,e, ejectment petition and suit for specific performance should have been consolidated or should have been tried simultaneously or as a last resort the execution of ejectment order be stayed till the final decision of the suit for specific performance.
6. On the other hand, learned counsel for the respondent contends that personal need, its basis, bona fide, and good faith were stated by the respondent in the affidavit of Haji Ahmad Din respondent. These facts were not challenged by way of cross-examination.
7. With reference to PLD 1991 SC 242 (Iqbal and 6 others versus Mst. Rabia Bibi and another) it is contended that pendency of a civil suit is no ground either to stay the proceedings or execution of an order of ejectment.
8. It is further argued that since the respondent has categorically denied the execution of the sale agreement and suit to that effect filed by the appellant is pending, therefore, its genuineness or otherwise cannot be determined in these proceedings.
9. I have considered the arguments of the learned counsel for the parties.
10. Although, the first agreement dated 12.10.1986 executed by the predecessor-in-interest of the respondent in favour of the appellant does contain the condition that the property in question shall not be got vacated either by him or by his legal heirs on the ground of personal need, but this agreement stood terminated after the expiry. of 11 months from the date of its execution. Thereafter numerous agreements were executed by the parties in continuation of the tenancy but none contained the above-referred disputed condition. Meaning thereby that the said condition ceased to exist between the parties. Even otherwise, such a condition which by itself is inherently against the provisions of Rent Restriction Ordinance which gives a right to the Landlord to seek eviction on the ground of personal need cannot be termed to be a legal condition. Even if by mutual consent such a condition was agreed upon the same cannot have perpetual effect depriving the landlord from seeking eviction on the ground of personal need if at a latter point of time such a need accrues. In particular when in the subsequent agreements the said condition was also not mutually agreed.
11.Protection sought by the learned counsel for the appellant under first proviso to Section 13(3)(a)
(ii) of the Rent Restriction Ordinance is also not available to him. The said provision is reproduced for ready reference: "Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period."
Bare perusal of the above provision indicates that restriction imposed upon the landlord in the said provision is only for the specified period agreed upon between the parties. In the instant case the first agreement was executed on 12.10.1986 for a period of 11 months only. After the lapse of 11 months the landlord was relieved of the said condition.
12.Admittedly, the respondent got executed a Rent Agreement dated 13.11.2000 on behalf of the appellant which he refused to sign on the ground that Condition No, 10 of first agreement dated 12.10.1986 be also incorporated in the said agreement. Respondent was well within his right to change his view and instead of allowing further extension of tenancy preferred to accommodate his son in the premises. This change is primarily because of the conduct of the appellant by way of which he wanted the respondent landlord to be bound with such condition, which is inherently contrary to law. In this view of the situation the bona fide of the landlord could not be doubted.
13.Coming to the case-law relied by the learned counsel for the appellant, it is to be observed that in PLD 1988 SC 190 their lordships observed as follows: "Thus, it can safely be said that the rent laws permit all covenants in agreements, alive or expired; which, are permissible under the general law and not inconsistent with or repugnant to that special law; and enforces the same accordingly whenever it is so required under that law. In addition, they also remain operative for other purposes permitted by the general law. [p. 199] E."
It is thus evident that continuation of terms of an agreement, although expired, in rent cases is permissible provided the same are not inconsistent with the Statute itself. In the instant case, Condition No, 10 of the original agreement could not continue for two reasons; firstly, the said condition ceased to exist when subsequent Rent Deeds were executed between the parties without the said condition. Secondly, the condition by itself is inconsistent with the Statute, which provides a right to the landlord to seek eviction of a tenant on the ground of personal need.
14.In PLD 1993 Lahore 97, it was observed that consolidation of two proceedings i,e, ejectment petition under Rent Laws and a suit for specific performance for agreement by tenant can be consolidated. In 1988 CLC 402, it was observed that if a tenant/transferee under a Sale Agreement seeks protection of Section 53-A of the Transfer of Property Act through a plea taken in response to an ejectment petition under Rent Laws, the Rent Controller had no jurisdiction to decide ejectment petition without waiting for the result of the civil suit/appeal. 2000 CLC 1684, appears to be a misquoted judgment, which is not relevant for the instant case. In 1991 SCMR 850 it was observed in the following words: "On the question of protection of the possession of the appellants till the decision by the Civil Court, learned counsel for the caveator did put up a spirited resistance; understandably with a view to oust the appellants before they are able to get final verdict in the hierarchy of the Civil Courts. We having made observation that the judgments impugned in this case shall be subject to the final verdict by the Civil Court, it is but natural that till the Civil Court is able to render the final decision and/or is able to control the question of possession (till the decision by that Court) the appellants should be provided limited protection till they are able to apply before the Civil Court and obtain an order thereon, interim or otherwise, granting/withholding interim relief. Accordingly in the facts of this case, in exercise of the power of this Court to do complete justice, the appellants are allowed one month's stay to seek/apply for interim relief from the Civil Court. There shall be no order as to costs."
It is evident from the observations made above by the Hon'ble Supreme Court that question of possession can only be regulated by the Civil Court seized of the matter. In PLD 1991 SC 242 the following is the observation of their lordships: "Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a, tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time - even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness, to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and t, e must vacate --- though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing.his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani (PLD 1984 Supreme Court 17), Allah Yar and others v. Additional District Judge and others (1984 SCMR 741) and Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1)."
It is evident from the above declaration of the Hon'ble Supreme Court that an ejectment petition under the Rent Laws and a' suit for specific performance by a tenant are two distinct proceedings.
The effect of ejectment order cannot be diluted by mere pendency of a civil suit on the basis of an agreement to sell. If an ejectment order is passed against a tenant, the same is necessarily required to be executed in letter and spirit. However, the tenant if succeeds in his litigation can get the possession restored through execution of his decree.
15.Scanning of the above case-law brings me to the conclusion that neither the two proceedings were required to be consolidated nor the effect of ejectment order could be diluted on the ground of pendency of a civil suit filed by the appellant.
16.I would deliberately abstain from commenting upon the evidence led by the appellant in support of his agreement to sell lest it might prejudice case of either side in civil suit.
17.For what has been stated above, I find no merit in this appeal which is accordingly dismissed.