ORDER SYED SAJJAD HASSAN SHAH, J.---Through the instant constitutional petition, the petitioner has challenged the judgment and decree dated 2-10-2009 passed by learned Additional District Judge-VI, D.I.Khan whereby the appeal filed against the judgment and decree dated 7-7-2009 of Civil Judge/Rent Controller, D.I.Khan was dismissed.
2. The grievance herein arises out of eviction application filed by respondent No.1 against the petitioner on the ground of default, personal need, damage and expiry of rent agreement with respect to the suit Property. The petition was contested by the petitioner-tenant by filing written reply. The petitioner-tenant asserted that the suit property was being occupied by him as tenant and he had been paying the rent of the demised premises till July, 2007 and vide agreement deed dated 12-8-2007, the suit house was purchased by him for sale consideration of Rs.12,50,000 from the respondent-landlord and a sum of Rs.10,00,000 was paid to the respondent, as such, the relationship between the parties is not that of landlord and tenant but the suit house is the exclusive ownership of the petitioner. The learned trial Court framed issues. Both the parties led their evidence in support of their respective contentions. After hearing both the parties, the learned Rent Controller accepted the application and passed the order of eviction against the petitioner and also the recovery of outstanding rent amounting to Rs.45,000 at the rate of Rs.3,000 per month till handing over the possession of the house to respondent-landlord.
3. Feeling aggrieved, the petitioner filed appeal which was dismissed as without being any substance.
4. The learned counsel for the petitioner contended that the judgments and orders of the Rent Controller as well as the appellate authority are erroneous as there was no relationship of landlord and tenant existed between the parties. He further contended that after having received a huge sale consideration of Rs.10,00,000, the respondent has no legal right to file eviction petition against the petitioner-tenant and the learned Rent Controller was also having no jurisdiction to entertain and proceed with the matter. He went on to argue that a civil suit regarding specific performance of agreement deed and perpetual injunction filed by the petitioner is pending, therefore, it was within the jurisdiction of the Rent Controller to stay the proceedings till final outcome of the civil suit but it failed to exercise such jurisdiction.
5. On the contrary, the learned counsel for the respondent-landlord contended that the petitioner- tenant has admitted his tenancy in respect of the suit house and he was under legal duty to surrender the possession first in favour of the respondent and then to claim any other status if at all he has acquired in the suit property, however, on the basis of unregistered sale-deed, he cannot claim the ownership in the suit property. The learned fora below legally not adverted to this aspect of the case, therefore, the impugned judgments and decrees are in accordance with law and this Court while exercising extraordinary jurisdiction cannot interfere with the concurrent findings of the forums below.
6. We gave our thoughtful consideration to the arguments of learned counsel for the parties and carefully scrutinized the available record.
7. Viewing the record in the light written as well as oral submissions of learned counsel for the parties, it appears that Kiramatullah, the attorney of respondent-landlord who appeared. As P.W.1 categorically denied in hits statement the sale of the suit house and execution of deed by the respondent-landlord. He also denied the receipt of sale consideration and asserted that the agreement is bogus, fake and fictitious document. However, P.W.1 admitted it correct that the petitioner-tenant regularly paid the rent till November;2007, where after he has not paid the rent of the suit house. The petitioner-tenant in his cross-examination also admitted correct that on 5-4- 2007 he occupied the suit house through Kiramatullah (P.W.1) on payment of rent of Rs.3,000 per month. He further admitted it correct that a notice sent by Kiramatullah was received by him in November, 2007. The petitioner-tenant has not denied his tenancy, however, asserted his ownership on the basis of unregistered deed and also that he has filed the suit against respondent-landlord basing on the same agreement. His contention was that till the decision of said case, the Rent Controller had no jurisdiction to pass order of eviction. In this respect, we have analyzed the law on the matter in issue. No provision exists that the Rent Controller cannot proceed where the tenant has filed a suit on the basis of certain unregistered agreement to sell. Rightly so, because unless the decree for specific performance has been passed in favour of the petitioner- tenant, he cannot resist the title of his landlord. Even in the presence of any agreement to sell or pendency of a civil suit on the basis of the sale agreement, the proceedings before the Rent Controller in A ejectment petition shall be continued in normal course. In this regard, the learned Rent Controller has decided the question of relationship being factual controversy after taking into consideration the entire evidence available on the record. Moreso, if the denial of the relationship is contumacious, the Rent Controller has power to straightaway pass the order of ejectment even without recording evidence on other grounds such as violation of terms of agreement or personal need. We are supported by the dictum of honourable Supreme Court laid on in the case of Haji Muhammad Khan v. Haji Zarin Khan (PLD 1999 SC 1301)(sic) wherein it was held that:-- "At this stage the validity of sale agreement relied upon by the petitioner/tenant is vigorously challenged by respondent/landlord. Therefore, till the time the petitioner is able to establish his claim for specific performance on the basis of alleged sale agreement, the respondent/landlord would continue to enjoy the status of being owner and landlord of the premises. The relationship between the parties still such time would be regulated by the terms of tenancy. This Court in similar circumstances while examining dispute between the landlord and tenant where the ejectment proceedings were contested on the ground of sale agreement in case of Mst. Azeem un Nisa Begum v. Ali Muhammad (PLD 1990 SC 382) has opined that ejectment proceedings could not be resisted by taking shelter under section 53-A of the Transfer of Property Act, relevant observations read as under:-- "For the foregoing reasons, I am unable to subscribe to the conclusions arrived at by the learned single Judge and hold that the respondent was not entitled to protect his possession and resist ejectment, under the provisions of section 53-A of the Transfer of Property Act and the relationship of landlord and tenant continued to exist between the parties even after the execution of agreement of sale. As admittedly the respondent had failed' to tender rent to the appellant, the eviction order passed against him by the Rent Controller was fully justified. I would, therefore, allow this appeal, set aside the judgment of the learned single Judge of the High Court and restore the order passed by the Rent Controller. There would be no order as to costs. "
"(7) On the basis of dictum laid in afore-quoted reports we unhesitatingly hold that petitioner cannot legitimately resist maintainability of ejectment proceedings pending against him on the ground of sale agreement. Suffice it to observe that genuineness or otherwise of such agreement and its consequential effect would be independently determined by the civil Court. However, in the instant case we are satisfied that issue regarding relationship of tenancy and personal bona fide requirement of respondent/landlord has been correctly decided by the Courts below. There does not-appear any material defect or legal infirmity with regard to conclusion drawn in the impugned judgments."
8. P.W.1 the attorney of respondent-landlord produced original rent deed as Exh.P.W.1./3 which was not objected by the petitioner-tenant. Moreso, he agitated other grounds of personal need, damage and the default in payment of rent. On these grounds, he was not cross-examined, by the petitioner-tenant. We are fortified by the dictum laid down in the case of, Sheikh Sanaullah v Farah Deeba and others (2005 YLR 248) wherein it has been held that :-- "Admitting this document in evidence without any objection being taken by the appellant proves that in fact he admits execution of the agreement for tenancy. Strangely enough, in the cross- examination this witness was not questioned about the genuineness or execution of agreement of tenancy, which further proves that the appellant admits the execution of the agreement. He has not even denied his signatures on the said agreement of tenancy and not even single question was asked in the cross-examination nor even any suggestion was put to the effect that the appellant did not execute any agreement of tenancy of/ and the signatures on Exhs.A-1 and A-2 are forged and fabricated. In order to prove the ownership, the respondents produced the copies of registered sale-deeds, which were admitted in evidence and exhibited as Exhs.A-4, A-5 and A-6 without raising any objection on the part of the appellant. After perusing the evidence on record, both oral as well as documentary, I am of the considered view that the respondents have been able to establish that the relationship of landlord and tenant did exist between the parties and both Courts below have rightly appreciated the evidence on record. And were justified in law to arrive at a conclusion that in fact the appellant is tenant under the respondents. "
9. The tenant inducted in possession of demised premises by the owner-landlord under the agreement of tenancy, as long as he enjoys the status of tenant in terms of tenancy agreement, if entered into sale transaction and executed an agreement to sell by the owner of the property, the status of tenant would not be altered, thus, the claim of ownership by tenant on the basis of said agreement to sell is of no avail Unless a decree of specific performance of contract is passed in his favour. He is bound to surrender the possession of the demised premises to the landlord in compliance of the order of the Rent Controller.10. In view of the above discussion, we are of the view that the judgments and orders passed by the Courts below are quite in accordance with law and call for no interference in constitutional jurisdiction by this Court.. Resultantly, the petition being without substance is hereby dismissed..