' MUHAMMAD NASEEM. AKHTAR KHAN J.---This second appeal has been filed against the concurrent findings of the learned Rent Controller and that of the learned Additional District Judge, Sadiqabad.
2. Succinctly, the brief facts necessary for the disposal of this SAO are that Muhammad Afzal and others, (hereinafter called the respondents), filed an ejectment petition against Muhammad Iqbal, appellant for the shop in dispute.
3. Muhammad Afzal and others respondents averred in the ejectment petition that Khadim Ali son of Allah Ditta was owner of disputed shop from whom they purchased it in consideration of Rs,9,00,000 vide registered Deed No,3199 dated 29-12-2005 (Exh.A-2); that previously, the appellant was tenant of said Khadim Ali and the monthly rent was Rs,3500. After the purchase of the disputed shop, the respondents issued a notice under section 13-A of the Urban Rent Restriction Ordinance, 1959 to the appellant vide registered letter dated 3-1-2006. After the receipt of the said notice, the appellant has neither paid the rent to them nor has delivered the vacant possession of the shop.
The respondents have pleaded that they require the disputed shop for personal need, hence the ejectment.
4. The ejectment petition was contested by the appellant on the ground that the disputed shop was owned by Khadim Ali, who on 15-12-1998 entered into agreement to sell (oral) with him for a consideration of Rs,10,30,000. The said Khadim Ali received Rs,1,40,000 as earnest money.
Subsequently, he filed a suit for specific performance of the said contract which is still pending adjudication. He has denied the relationship of landlord and tenant in written reply and prayed for dismissal of the ejectment petition.
5. From the divergent pleadings of the parties the following issues were framed by the learned trial Court:--
(1) Whether relationship of landlord and tenant between the parties is existed? OPA.
(2) Relief.
6. The parties adduced oral as well as documentary evidence before the learned trial Court in support of their respective versions. The respondents examined Ghulam Hussain, Registry Clerk as P.W.1, Ch. Muhammad Anwar as A.W.2, Rasheed Abbas Soomru as A.W.3, Khalid Nawaz as A .W.4, Khadim Ali as A.W:5, Muhammad Imran Pasha Advocate as A.W.6 and Muhammad Afzal, one of the respondents as A.W.7. They also tendered in evidence receipt of registered letter A.D. Exh.A.1, registered sale-deed Exh.A.2, Affidavit of Khadim Ali Exh.A.3, Notice Exh.A.4, Affidavit of Muhammad Afzal Exh.A.5, copy of record of right for the year 2001-2002 Exh.A.6, Copy of application for restoration of application Exh.A.7 and certified copy of statement and order dated 3-1-2006 Exh.A.8. In rebuttal, the appellant examined Muhammad Rafiq as R.W.1, Shamas-ul-Haq as R.W.2 and himself appeared in the witnesses box as R.W.3. He has also tendered in evidence copy of statement of Muhammad Iqbal as Exh.R.W.1, certified copy of Shams-ul-Haq as Exh.R.W.2, certified copy of statement of Muhammad Rafiq as Exh.R.W.3, certified copy of written statement as Exh.R.4 and certified copy of another written statement as Exh.R.5.
7. The learned Rent Controller vide judgment dated 17-2-2007 ordered the ejectment of Muhammad Iqbal appellant. This ejectment order was assailed in appeal before the District Court, which was also dismissed, vide judgment dated 1-6-2007. Hence this second appeal.
8. Learned counsel for the appellant contends that the learned courts below have not considered the facts of the case inasmuch as due weight was not given to the documentary evidence adduced by the appellant. Further added that in the presence of title suit (suit for specific performance) the ejectment petition is not maintainable.
9. On the other hand, the learned counsel for the respondents has opposed this appeal.
10. Arguments heard. Record perused.
11. After hearing the learned counsel for the parties and perusing the record it has been noticed that the appellant was tenant under Khadim Ali as is evident from Exh.A.9. The respondents stepped into the shoes/ of previous owner after purchasing the disputed property through registered sale-deed. The notice of change of ownership was not only orally conveyed to the appellant but also through written notice Exh.A.4, which was dispatched to him through registered post, the receipt of which is Exh.A.1, therefore, the learned lower Courts have rightly held that the relationship of landlord and tenant exists between the parties.
12. It is noteworthy that Khadim Hussain previous owner of the shop in dispute filed an ejectment petition on 24-4-2003 against tl1t appellant which was contested but the same was dismissed in default on 15-10-2005. The restoration application filed by the said Khadim Hussain was withdrawn by him on 3-1-2006 by making a statement that he has sold the shop in dispute to the respondents.
13. Now the only controversy to be settled between the parties is that what is the effect of the pendency of the suit for specific performance of the contract filed by the appellant on 4-9-2003 on the basis of an oral agreement dated 15-12-1998. The injunction order with regard to change of ownership of the shop in dispute was issued by the civil court but the same was withdrawn vide order dated 12-12-2005. The shop in dispute was purchased by the respondents on 29-12-2005 through registered sale-deed Exh. A.2. And now they are party in the said suit for specific performance as a result of acceptance of their application for impleading them as a party. It is noteworthy that there are two witnesses of the oral agreement to sell namely Muhammad Rafique, who is real brother of the appellant, whose examination-in-chief has been recorded, but now he is in Saudi Arabia in connection with some job and the cross-examination is not possible in the ordinary course of business. The second witness Shamas-ud-Din, who is brother of the wife of the appellant whose examination-in-chief has also been recorded in the civil suit. The appellant has been depositing the tentative rent at the rate of Rs,3500 per months in favour of Khadim Hussain, as a result of an order dated .10-7-2004 passed by the learned Rent Controller during the pendency of the earlier ejectment petition. This ejectement petition was instituted on 18-2-2006.
The arguments of the learned counsel for the appellant that in the presence of a suit for specific performance of the appellant the ejectment petition cannot proceed, cannot be given any B weight keeping in view the dictum of the august Supreme Court of Pakistan in the case of Barkat Masih v. Manzoor Ahmad deceased through L.Rs (NLR 2004 (Civil) 702 which reads as follows:--
(a) Rent Restriction Ordinance (VI of 1959) S.13. Land Lord/tenant relationship. Filing and pendency of civil suit by tenant against landlord would not debar his ejectment till decision of suit.
(b) Ibid--- "S.
13. It is settled principle of law that if a tenant denies the proprietary rights of his landlord, then he is bound to first of all deliver, the possession of premises in his possession and then to contest proprietary rights of landlord and if ultimately he succeeds in getting relief from Court and decree is passed in his favour, then he can enforce the same according to law with all consequences."
14. In the circumstances, discussed above it is crystal clear that the appellant is very much in the knowledge of the purchase of the shop in dispute by the respondents since the execution of registered sale-deed Exh.A-2 on 29-12-2005 but he has not paid rent to the respondents and is using the property without payment of any rent. The denial of the title/relationship of tenancy by the appellant is mala fide as well as contumacious and the appellant is not entitled to any leniency. The conduct of the appellant entitles him to forthwith ejectment from the shop in dispute.
Resultantly the appeal in hand is hereby, dismissed being without any merit. The appellant is directed to hand over the vacant possession of the shop in dispute to the respondents within thirty days from the date of this order. The appellant is also directed to pay the due rent (at the rate of Rs,3500 per month) of the shop in dispute to the respondents for the period starting from 29-12- 2005 till the vacation of the shop.