This judgment shall decide C.R. No, 1611/01 and SAO No, 26/04 as common questions are involved.
2. On 15.5.1995 the petitioner (who is also the appellant in SAO No, 26/04) filed an application for ejectment of the respondent from a shop located in Kasur Urban Area. According to the contents of this application, the respondent was a tenant under the petitioner in the said shop subject to payment of Rs, 600/- per month as a rent. The payment of rent at the said rate was stopped with effect from December, 1994. The ejectment was accordingly sought on the ground of default in payment of rent as also for the personal use and occupation of a son of the petitioner. Impairment of the value and utility of the building was also pressed. On 22.11.1995 the petitioner filed a written statement. He admitted that he had been occupying the shop as a tenant since the time of his father as well as grandfather. The petitioner declared his intention to sell the shop and ultimately agreed to sell the shop to him for a consideration of Rs, 70,000/-. A sum of Rs, 50,000/-was paid by way of earnest, the receipt whereof was acknowledged by the petitioner by executing agreement dated 27.11.1990. For the payment of balance amount of Rs, 20,000/-, a period of three years was fixed. According to him, after the execution of the said agreement and payment of earnest, the relationship of landlord and tenant between the parties ceased to exist. The other allegations were accordingly denied.
3. On 10.9.1995 the respondent filed a suit against the petitioner stating that he had been occupying the said shop as a tenant under the petitioner, who agreed to sell the shop to him for a consideration of Rs, 70,000/-, received a sum o Rs, 50,000/- by way of earnest money and executed the agreement dated 27.11.1990, the terms whereof are that the respondent was to pay the balance amount of Rs, 20,000/-within three years. The petitioner had refused to perform his part of the contract. A decree for specific performance was accordingly sought. The petitioner in his written statement denied having entered into any agreement to sell with the respondent or to have received any amount of consideration. According to his the respondent approached him with - the representation that let a rent note be executed and accordingly he accompanied him to a Scribe. He is an aged illiterate person and none from his family including his son accompanied him.
The thumb-impressions were obtained on some papers on the pretext that the rent note has to be executed in duplicate. According to him, the suit has been filed on the basis of fabricated document long after, the institution of the ejectment petition by the petitioner against the respondent. In the matter of ejectment, the following preliminary issue was framed:- "1. Whether relationship of landlord and tenant has ceased to exist? OPR."
In the matter of civil suit, following issues were framed by the learned trial Court:
1. Whether present suit is barred by time? OPD.
2. Whether present defendant agreed to sell disputed shop in favour of the present plaintiff vide agreement to sell dated 27.11.90 for a total consideration of Rs, 70,000/-? OPP.
Whether defendant received a sum of Rs, 50000/- as earnest money from the plaintiff? OPP.
4. If Issues No, 2 and 3 are proved in affirmative, whether plaintiff remained willing and ready to perform his part of the contract? OPP.
5. If Issues No, 2 to 4 are proved in affirmative, whether plaintiff is entitled to a decree for specific performance of the agreement to sell dated 27.11.90? If so under what terms and conditions? OPP
6. Relief.
Later an additional issue was farmed as follows:- "Whether plaintiff has not come in the Court with clean hands? OPP"
Evidence was recorded separately in both the cases. The learned Rent Controller allowed the ejectment petition on 20.5.2000. The civil suit was decreed by learned Senior Civil Judge, Kasur, on 27.7.2000. The parties filed first appeals respectively. These appeals were heard together by a learned ADJ, Kasur. Vide judgments and decree passed on 17.5.2001 the appeal filed by the petitioner in the matter of civil suit was dismissed while the appeal filed by the respondent in the ejectment matter was allowed and ejectment petition was dismissed.
4. Learned counsel for the petitioner contends that the learned Courts below did concede that the evidence led by the respondent was discrepant and not sufficient to prove execution of the agreement by the petitioner. However, they have observed that the execution of the agreement had been admitted by the petitioner and consequently have recorded their findings in the matter of civil suit. Pressing the second appeal, learned counsel urges that the judgment of the learned ADJ allowing the appeal is wholly without lawful authority as the agreement was absolutely silent about delivery of possession there-under and there was nothing on record that the relationship of landlord and tenant ever ceased to exist. Even if it be assumed that the agreement was executed by the petitioner. Learned counsel for the respondent, on the other hand, has supported both the judgment and the decree in the civil suit as also the rent matter.
5. I have gone through the copies of the records, appended with the civil revision and the lower Court records which are available in the matter of SAO, with the assistance of the learned counsel for the parties. I have already reproduced above in some detail the respective pleadings of the parties in both the matters. There is no denial that the respondent was inducted as a tenant by the petitioner and he had been paying rent to him. According to him, he stopped payment of rent after the execution of the said agreement. The learned Rent Controller after examining the said agreement and other evidence had held that the relationship of landlord and tenant did not cease to exist. Certified copy of the said agreement has been placed as Ex. R.1 on the record of the ejectment proceedings. It narrates that the petitioner has agreed to sell the shop to the respondent for a consideration of Rs, 70,000/-. A sum of Rs, 50,000/- has been received as earnest while the balance amount will be paid within three years whereafter a sale-deed shall be executed and got registered. The agreement further narrates that in case the balance amount is not paid within the said period of time, the earnest money shall stand forfeited and in case the petitioner fails to perform his part, he will be liable to pay an amount equal to the said amount of earnest as damages. The agreement then narrates that the respondent is already in possession as a tenant since his forefathers. Upon a plain reading of this agreement, there is nothing spelt out that the respondent was absolved of his liability to pay rent or that the nature of his possession was changed from that of a tenant to one under the agreement to sell. The learned ADJ has dealt with the matter in a callous rather perverse manner. First of all he has rebuked the learned Rent Controller as to why he did not stay the proceedings of ejectment when there was a dispute of title.
This observation is against the settled rule of law laid down by the Hon'ble Supreme Court of Pakistan in several judgments. Reference may here be made to the case of Haji Jumma us. Haji Zarin Khan (PLD 1999 SC 1101). Thereafter, he has observed as follows: "If there was no clause in agreement to sell to the effect that tenant/appellant would stop payment of rent after the execution of the agreement to sell, the intention for the same could be gathered impliedly, from the agreement to sell."
The said observation is equally perverse and against the legal norms settled by the Superior Judiciary over a-period of time.
6. Coming to the civil revision, the agreement to sell has been produced as Ex. P.1. It purports to bear the thumb-impression of Chiragh Din petitioner. It is attested by Mehr Akbar Ali, Ali Afzal, Muhammad Tufail, Muhammad Younas and Muhammad Rafi witnesses and is scribed by Abdullah Hashmi. Out of the said witnesses, Haji Muhammad Younas has appeared as PW-3. He is the brother of the respondent while Muhammad Akbar appeared as PW-2. He initially denied having any relationship with the respondent and stated that he is only a Mohallaydar. Thereafter, he admitted that Ismail is his paternal uncle and his daughter is married to Babu Niaz a first cousin of the respondent. He also admitted that 4/5 years ago, the petitioner got the said uncle Ismail ejected from his shop. Abdullah Shah, Scribe, appeared as PW-4 while Muhammad Rafi appeared as PW-1. Now Muhammad Rafi respondent while appearing as PW-1 stated that the said Akbar witness is his maternal uncle. To begin with it has come on record that the stamp for the Ex.P. 1 was purchased by the said Muhammad Akbar. The peculiar terms of the agreement i,e, payment of Rs, 50,000/- as earnest and postponement of the payment of Rs, 20,000/- for three years and the filing of the suit after a further period of two years after the expiry of the said period of three years, the fact that one of the witnesses is a brother of the respondent and the other is his maternal uncle, the purchasing of the stamp by a third party i,e, Akbar PW and the discrepancies in the statements all have been brushed aside by both the learned Courts below by stating that execution of Ex.P. 1 has been admitted by the petitioner: I may reproduced here the following observations of the learned trial Court in para-11 of its judgment:- "So far as the execution of document is concerned, in case of total denial from the execution of document by the defendant the conduct of stamp vendor could be considered but when the thumb impressions on the document Ex P. 1 are admitted and the marginal witnesses have supported the contents of document then objection as to conduct of stamp vendor and writer and other persons present at that time, in absence of any strong and cogent evidence has become of no value.
The learned ADJ has followed suits faithfully.
7. It is but apparent on the face of the record that the petitioner appeared in the witness box as DW-5. He has categorically stated that he had received no earnest money and had not executed any agreement. He was cross-examined at length. What to speak of confronting the petitioner with the said Ex.P. 1, there is no mention at all of Ex. P. 1 in the entire cross-examination. In view of the said circumstance glaring on the face of the record, the observations of the learned Courts below that the petitioner had admitted the execution of Ex.P.1 is wholly without lawful authority being a case of deliberate of mis-reading or non-reading of the evidence on record. A case for interference in terms of Section 115 CPC is accordingly made out.
8. As a result of the above discussion, the civil revision is allowed. Both the impugned judgments and decrees are set aside and the suit of the respondent is dismissed. Also for the reasons stated above, the SAO is allowed and the impugned judgment dated 17.5.2001 of learned ADJ, Kasur, is set aside while the ejectment order passed by the learned Rent Controller on 20.5.2000 is restored. The respondent is directed to hand over vacant possession of the shop to the petitioner/appellant on or before 31.5.2007 failing which the petitioner/appellant shall be entitled to execute the ejectment order in accordance with law. No orders as to costs in both the cases.
9. The records summoned in the SAO be returned back immediately.