' MIAN HAMID FAROOQ, J.--Khurshid Ahmed and others the petitioners, through the filing of the present constitutional petition, have called in question judgment dated 20-2-2003, whereby the learned Additional District Judge directed that the final decision of the ejectment petition is to be deferred till the final decision of the civil litigation and set aside the ejectment order dated 21-5- 2001, rendered by the learned Rent Controller through which he passed an ejectment order against the respondent No, 1.
2. The petitioners filed an ejectment petition against the respondent, seeking his eviction from the disputed house on the grounds of personal need and default, which was resisted by the respondent No,1, through the filing of the written reply, pleading therein, that no relationship of landlord and tenant exists between the parties, as the predecessor-in-interest of the petitioners agreed to sell the disputed house to the respondent No,1 vide agreement to sell dated 12-5-1983.
The learned trial Court initially framed the issue about the existence of the relationship of landlord and tenant, however, subsequently an additional issue regarding the validity of agreement to sell was also framed. The learned Rent Controller recorded the evidence of the parties and passed an ejectment order against the respondent No,1 vide order dated 21-5-2001. The respondent No,1 felt aggrieved and assailed the eviction order before the appellate authority, who allowed the said appeal and remanded the case to the learned trial Court for fresh decision of the ejectment petition, vide judgment dated 4-3-2002. The said remand order was challenged before this Court in a constitutional petition (W.P. No,5229 of 2002), which was, however, disposed of on 7-6-2002 and the appellate authority was directed to decide the appeal, afresh. Pursuant thereto the learned Additional District Judge after hearing the parties allowed respondent No, 1 's appeal and deferred the final decision of the ejectment petition till the final decision of the civil litigation, vide judgment dated 20-2-2003, hence the present petition.
3. Respondent No,1 was served and he attended the proceedings on the proceeding date, however, today till the fag end of Court's working hours neither he nor his learned counsel has entered appearance, thus, he is proceeded ex parte.
4. Learned counsel for the petitioners has contended that on the basis of an alleged agreement to sell, the respondent No,1 cannot retain the possession of the rented premises as admittedly the agreement to sell does not create any right, title or interest of such person qua the property. He has further submitted that the impugned judgment is not sustainable in law.
5. To my mind, the pivotal question, which requires determination by this Court is as to what is the affect of the alleged agreement to sell qua the ejectment proceedings. There cannot be any cavil with the proposition that mere agreement to sell does not create any right, title or interest in favour of a person, in whose favour, the said document is executed except creation of right favouring such person, to file a suit for specific performance of the said agreement. It is established law that the agreement to sell cannot be pleaded as defence in the ejectment petition and unless suit for specific performance is decreed, no title is created in favour of that person, qua the rented property. It has been held in Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101) that till the time tenant was able to establish his claim for specific performance, on the basis of alleged sale agreement, landlord would continue to enjoy the status of being owner and landlord of the premises and the relationship between the parties, till such time would be regulated by the terms of tenancy and that the tenant could not legitimately resist the maintainability of the ejectement proceedings pending against him on the ground of sale agreement. It has been held in Mst. Bor Bibi and others v. Abdul Qadir and others (1996 SCM R 877) that a tenant could not be allowed to retain his possession on the basis of agreement to sell till the decision of his title by civil Courts of competent jurisdiction. The view taken by the Honourable Supreme Court of Pakistan, in a case reported as Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242), is that pendency of a suit for specific performance of agreement would be no ground to avoid eviction of tenants by the Rent Controller and that the tenants could prosecute their claim at the cost of themselves by vacating the premises, though they would be entitled to an easy and free entry as soon as they finally succeeded in establishing their title against the landlord. In another case reported as Mst.
Azeem un Nisa Begum v. Ali Muhammad (PLD 1990 SC 382) it has been held that the relationship of landlord and tenant continued to exist between the parties, even after the execution of agreement to sale and as the respondents failed to tender rent to the vendor, the eviction order, passed against him by the Rent Controller, was fully justified. The position of the respondents No,1 in the present case is even worse as according to the available record, his suit for specific performance was dismissed and now the appeal is pending wherein no injunctive order was granted. In view of the law declared, as noted above, to my mind, the respondent No,1 cannot be allowed to retain the possession of the disputed house on the plea of alleged agreement to sell.
6. In the above perspective, upon the examination of the impugned judgment, I find that the learned Additional District Judge, while rendering the same, completely misdirected himself and has erroneously deferred the final decision of the case, completely forgetting that the Rent Controller cannot decide about the title of the parties qua the house in question, inasmuch as in the present case, as noted above, the suit for specific performance was filed and dismissed. In these circumstances. I am of the view that the impugned judgment is not sustainable in law, hence I have no alternative except to set the same aside.
7. The learned Additional District Judge has passed the impugned judgment in clear violation of the law declared by the Honourable Supreme Court of Pakistan in the aforenoted case, which, in view of Article 201 of the Constitution of Islamic Republic of Pakistan, is binding on all the Courts.
Furthermore, the learned Additional District Judge has assumed the jurisdiction thereby completely misreading the law declared, therefore, it furnishes a ground for interference by this Court, in exercise of the constitutional jurisdiction. If any case is needed, judgment reported as Shabbir Ahmad v. Mst. Kabir un Nisa and others (PLD 1975 SC 58) can be referred.
8. Upshot of the above discussion is that the present petition is allowed and the impugned judgment dated 20-2-2003 is set aside and that of the learned Rent Controller dated 21-5-2001 stands restored. There is no order as to costs.