1. ' KHILJI ARIF HUSSAIN, J.--- On 25-2-2009, for the reasons to be recorded later, appeal was dismissed in limine, and these are the reasons of short order.
2. ' Brief facts to decide listed appeal are that appellant is owner of the property bearing Shops Nos.1, 2, 3 and mezzanine floors constructed above the three, Shop No,4 situated in the building known as Palm Beach Homes, khayaban-e-Sadi, Marin Drive, Clifton, Block-2, Karachi, (hereinafter referred to as "property in question"). In terms of sale agreement respondent agreed to sell property in question along with its furniture and fixtures in total sale consideration of UAE 2,000,000 (two million United Arab Emirates Dharams) payable for Pak Rupees and paid a sum of Rs,24,75,000 equivalent to AED 150,000 to the appellant as part payment. Balance sale consideration was payable by 7-5- 2006 as per schedule for the payment of sale agreement. The parties entered into a tenancy agreement dated 1-6-2005 for a fixed period upto 30-4-2006. In terms of tenancy agreement, respondent was required to pay a sum of Rs,55,000 as rent of the premises and Rs,1,30,000 as rent of furniture and fixture.
3. ' The respondent filed suit for specific performance on failure of the appellant to transfer the property in terms of the agreement of sale on 26-5-2006.
4. ' After hearing the parties, respondent was directed to furnish bank guarantee equivalent to Pak Rupees one million Dharam at the market rate of Dharam and further 8.50 million UAE Dharam at the rate of Rs,16.50. The parties were directed that after furnishing bank guarantee parties shall maintain status quo.
5. ' The -grievance of the appellant is that Rent Controller due to status quo order passed by this Court, has stopped proceedings in the matter pending before him. The appellant requested to modify the order to the extent that the appellant will not dispossess the respondent except in due process of law.
6. ' Heard Mr. Asif Ali Pirzada, learned counsel for the appellant, and Mr. Haider Waheed learned counsel for the respondent.
7. ' Mr. Asif Ali Pirzada, learned counsel for the appellant, argued that merely because an agreement of sale was entered into between the parties relationship of landlord and tenant between parties did not come to an end and order of status quo passed to the extent need to be modified so that appellant can proceed with the rent case filed by him against the respondent. In support of his contention learned Advocate relied upon the case of Mst. Azeemun Nisa Begumi v. Ali Muhammad PLD 1990 SC 382.
8. ' On the other hand, Mr. Haider Waheed, learned counsel for the respondent, has taken us to various clauses of agreement of sale as well as tenancy agreement and argued that in terms of agreement respondent's possession was protected under section 53-A of the Transfer of Property Act and contended that proceedings before the Rent Controller was rightly suspended. Learned Advocate in support of his contention relied upon Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456.
9. 'We have taken into consideration respective arguments advanced by the learned Advocates for the parties, and perused the record. What appears from the record is that by a tenancy agreement for a fixed period of 11 months, the appellant let out the property in question for a period of 11 months commencing from 1-6-2005 to 30-4-2006 at the monthly rent of Rs,55,000 for premises, and Rs,1,30,000 rent for fittings and fixtures etc. Clause (1) of the tenancy agreement provided that after expiry of the prescribed period i,e, 30-4-2006 respondent was to vacate the premises within seven days i,e, on/or before 7-5-2006 and if the respondent failed to hand over possession of the premises to the appellant on/or before the said date, as defaulter, respondent has to pay to the appellant Rs,24,000 per day from 8-5-2006 till the date on which date vacant possession of the property in question given to the appellant. Clause (1) further provided that if the tenant wish to vacate the premises before the completion of the agreed period of the tenancy respondent has to pay rent for the remaining agreed period in lump sum.
10. ' Just after two days of the agreement of tenancy between the parties, appellant and respondent entered into an agreement of sale dated 3-6-2005. To appreciate the controversy in the matter, we would like to reproduce some relevant clauses of the sale agreement.
11. "Clause (2) That the party of second part the purchaser at present cannot arrange above agreed amount. The party of second part is sure that they can arrange and make full payment of the agreed amount to the vendor within eleven months, i,e, upto 30th April, 2006.
12. 'Thus on the request of the party of second part, the party of first part agreed to make the final or formal deal for the sale and purchase of the said property on or before the 6th of May, 2006 on the basis of the agreed price and respective conditions mentioned in this agreement. Clause (4) That through a separate tenancy agreement Messrs ACE Securities (Pvt.) Ltd. Has taken possession of the above said properties monthly rent. The possession given by Dr. Abdul Hakim Abrash in his capacity as landlord of said properties to the said company has no concern with this sale agreement and with this deal. After receipt of payment under the clause (B) of the schedule of payment the possession of the property will be handed over to the party of the second part under this agreement.
13. Schedule of Payment
(a) At the time of signing this agreement, the buyer will pay Rs,2,475,000 (Pak Rupees two million four hundred and seventy-five thousand) equivalent to 150,000 (hundred and fifty thousand Arab Emirates Dharams) as part payment of the total consideration.
(b) In the month of April, 2006, the buyer will pay Rs,14,025,000 (Pak Rupees fourteen million and twenty-five thousand) equivalent to 850,000 AED (Eight hundred and fifty thousand Arab Emirates Dharams) as the second part payment of the total consideration.
(c) Buyer will pay the remaining amount of 10,00,000 AED (one million Arab Emirates Dharams) in Pak Rupees through pay order of bank draft on or before 8th of May, 2006 in the presence of Registrar.
14. ' Clause (9) That upon receipt of the payment described in para.(b) of the said schedule in the month of April, 2006, the vendor and purchaser will jointly prepare the conveyance deed and until 8th of May, 2006, they will make it ready for registration with respective sub-Registrar of the properties. The possession of the premises will be taken by the party of the second part under this agreement after payments uptil the transfer of the property in the name of the buyer. The vendee will be entitled to publish public notice of the transaction in the newspaper and give 7 days notice before the second payment is made to the vendor under clause (b) of the Schedule of payment.
15. ' Admittedly, respondent has paid a sum of Rs,24,75,000 equivalent to 150,000 AED at the time of signing of agreement. In terms of the agreement of sale respondent was required to pay 2nd instalment of Rs,14,025,000 in the month of April, 2006 i,e, the month on which the fixed period of tenancy was to be expired.
16. ' Respondent through his letter, dated 13-4-2006 while appreciating the difficulties of the appellant who had to come to Karachi on 12-4-2006 for completing formalities, while pointing out objection received in response to public notice from Assistant Director, Anti-Narcotics Force, expressed his willingness to perform his part of agreement and stated as under:--- "On my side, I once again assure and confirm to you that the balance amount of Rs,14,025,000 (Rupees fourteen million and twenty-five thousand only) that is payable in the month of April, 2006, is ready for payment and ACE Securities (Private) Limited (ASL) is ever ready and willing to pay the same to you at any time. Against this payment the tenancy agreement will stand terminated, since you have already handed over to me the possession of the subject properties. Likewise, ASL has got the funds in hand to make payment of the remaining amount in Pak Rupees equivalent of AED 1000,000 that is payable by May 8, 2006 in the presence of the Sub-Registrar, in full and final payment of the total sale consideration.-Ini, you also instruct your counsel for preparation of the sale-deed. Alternately, ASL's counsel can also prepare the sale-deed if you desire."
17. ' When respondent not received reply of his letter by the offer to perform his part of obligation he served legal notice, dated 25-4-2006 and stated that on 24-4-2006 when appellant came to Karachi respondent offered to pay balance amount of Rs,14,025,000 but appellant refused to accept the same for the reasons best known to him and offered to pay balance amount including last instalment equivalent to one million AED so that deed of conveyance can be executed within time but appellant avoided to accept the same. After service of legal notices respondent filed suit for specific performance.
18. ' It is a settled principle of law that documents must be considered as a whole and intention of the parties to be discovered from the contents of the document meaning thereby substance of the documents must be kept in mind and not form of the document. If any case-law is required one can see the case of Rasheedur Rehman Khan v. Mian Iqbal Hussain PLD 2006 SC 418.
19. ' On reading the tenancy agreement dated 1-6-2006 along with the agreement of sale 3-6-2006 it appears that the parties entered into tenancy agreement for a fixed period of 11 months expiring automatically on the last date of it i,e, 30-4-2006 whereafter for any reason possession is not handed over then respondent was liable to pay a sum of Rs,24,000 per day from 8-5-2006 till the date vacant possession will be handed over to appellant and not rent agreed in the agreement. It is not disputed by the parties before us that the respondent has paid rent of 11 months and after filing of suit for specific performance and expiry of tenancy period without prejudice to his contention that the respondent is not liable to pay the rent under the tenancy agreement start depositing rent in Miscellaneous Rent Case. Keeping in view principle laid down by the Honourable Supreme Court in the case of Mst. Azizun Nisa (supra), when we look into the agreement of sale, it appears that party agreed that on payment of 2nd instalment of sale consideration as per clause
(B) of Schedule of Payment, possession of the property in question will be deemed to be possession under the sale agreement and respondent becomes entitled for protection under section 53-A of the Transfer of Property Act. It further appears from the agreement that the tenancy was to expire on 30-4-2006 whereas payment under clause (B) of the F agreement of sale was to be paid in the month of April, 2006 i,e, on or before discontinuation of relationship of landlord and tenant between the parties.
20. ' We would not like to discuss these aspects in further details as same may prejudice interest of either parties.
21. ' For the foregoing reasons, we dispose of the appeal on the following terms:---
(1) We appoint Mr. Tahsin Bhatti a retired District Judge as Commissioner to record the evidence in Suit No,1070 of 2006. Parties can file their own affidavit-in-evidence along with the document in support of their respective contention before the learned Commissioner.
(2) Sum of Rs,3,000 per witness will be paid by the respective parties for their witnesses as Commissioner Fee, which will be treated as cost in the proceedings.
(3) Commission should be returned within four months from the date of the order.
(4) After return of the Commission, office is directed to fix the matter for arguments.
(5) Learned Rent Controller can proceed with the matter pending before him, and any party aggrieved by the order can seek remedy available under law, however, final order will not be executed till decision of the suit.