Through this second appeal the appellant has assailed two orders dated 16.9.2006 and 11.1.2008 passed by Rent Controller and Additional District Judge Lahore.
2. This appeal has a long history of litigation, briefly stated the facts of the case are that appellant filed an ejectment petition against respondent from a shop situated at 8-Hal Road Lahore bearing property No. S-50-R-8/1, detailed in Para No. 1 of the petition. The petitioner claimed that in the year 1960 his grand-father Qamar Din purchased the shop in dispute from Settlement Department in open auction and P.T.O was issued to him. Qamar Din died in the year 1961 and after his death the property was transferred in the name of his uncles namely Khalid Ali Khan with the consent of other claimants. Final Transfer Order was issued to Khalid Ali. Khalid Ali Khan died and his son Sohail Khalid become the owner of shop by virtue of decree dated 05.7.1984. The petitioner on 06.6.1998 purchased the above said shop from Sohail Khalid S/O Khalid Ali Khan through a registered sale- deed.
3. The petitioner and Sohail Khalid prior to the instant ejectment petition filed an ejectment petition against the respondent in the year 1986 which was dismissed on 17.5.2001 as a suit for specific performance of agreement was pending disposal between the parties.
4. The history of the suit for specific performance of the agreement as narrated by the parties and available on record is, the respondent filed a suit for specific performance of agreement dated 20.8.1960 against Qamar-u-Din claiming that he agreed to sell the shop to him against consideration of Rs. 7050/- and received Rs. 100/- as earnest money. The balance amount was payable in installments of Rs. 50/- per month. According to respondent, he continued to pay the agreed installments to Qamar Din till his death (February 1961) and on the refusal of legal heirs of deceased Qamar Din to honour the alleged agreement to sell, he filed a suit for its specific performance. The suit :emained pending adjudication and on 03.11.2001 it was finally dismissed from Honourable Supreme Court of Pakistan.
5. The petitioner after purchasing shop on 16.9.2002 served a notice U/S. 13-A of Punjab Rent Restriction Ordinance to respondent and claimed tenancy by operation of law. The petitioner then filed ejectment petition on two grounds, default in payment of rent and personal need.
6. The respondent denied the relationship of landlord and tenant and claimed that notice U/S. 13-A of the Rent Restrict Ordinance came into action only when the relationship of landlord and tenant between the occupant and vendor of the petitioner exists. In addition to this he claimed to be the purchaser of shop under an agreement to sell with Qamar Din and as such he claimed the possession of shop as owner.
7. Out of divergent pleadings of the parties, the learned Rent Controller framed the following issues:- "ISSUES:
1. Whether there exists relationship of landlord and tenant inter se between the parties? OPA
2. Relief.
8. Both the parties adduced their respective evidence. The learned Rent Controller vide order dated 16.9.2004 dismissed the petition holding that earlier owner Mr. Sohail Khalid filed an ejectment petition against the respondent, the petition was dismissed on 16.9.2004 a suit for specific performance is pending between the parties. The appellant assailed the dismissal order through an appeal, which too was dismissed on 07.6.2007. The appellant filed second appeal which was allowed on 17.7.2007 with the consent of parties in the following terms: "After arguing the matter at some length, the learned counsel for the parties agree and concur that the impugned, order dated 07.6.2007, whereby the proceedings were remanded to the trial Court, be set aside on the following terms:--
(i) The learned appellate Court itself consider the impact and import of the contents of the paper book filed in CPLA No. 200/2005 in the Honourable Supreme Court of Pakistan and permit both the parties to raise all questions of law and facts to the admissibility of the documents contained therein, or otherwise.
(ii) The matter thereafter be decided in accordance with law by passing a speaking order, after hearing both the parties.
(iii) The proceedings be remitted to the learned District Judge, Lahore to either hear the matter himself or refer it to any other Court of competent jurisdiction, except Mr. Abdul Nasir, Additional District Judge, Lahore for adjudication. The appeal therefore, allowed in the terms agreed, the impugned order is set-aside, the parties are directed to appear before the District Judge Lahore on 27th July 2007."
9. The appellant in terms of orders dated 17.7.2007 filed an application for producing additional evidence. The learned appeal Court vide order dated 24.10.2007 dismissed the application and also dismissed the appeal through an order dated 11.1.2008, hence the second appeal.
10.Learned counsel for the appellant submits that first appellate Court has failed to appreciate that application for additional evidence was filed in terms of consent order dated 17-7-2007 hence it was not open for the appellate Court to dismiss the application. He submits it is an admitted fact that suit for specific performance remain pending between the vendors/transferee and the respondent and as such the agreement to sell available at the page 138 of the paper book of CPLA No. 202-L/2005 should have been taken into consideration by the first appellate Court. He submits that first appellate Court has failed to appreciate that after dismissal of suit for specific performance of agreement the status of respondent stand restored as tenant and the requirement of notice U/S. 13-A of the Punjab Rent Restriction Ordinance 1959 stand complied with. He adds that learned appeal Court has failed to examine the page 138 of paper book with reference to the orders dated 17.7.2007 passed by the High Court in Appeal No. 81/2007.
11.Learned counsel for the respondent supports the impugned judgment and submits that he is not the tenant of any person including the petitioner and maximum it can be said that he is an illegal occupant but is not a tenant and if the appellant is claiming the ownership of shop he should file a suit for possession against the respondent. He adds that respondent is occupying the shop as owner of the same.
12 Heard. Record perused.
13.Certain facts are admitted between the parties, that Qamar Din was the transferee of property, after his death Khalid Ali became the owner of property, Khalid Ali sold the property to appellant through registered sale-deed on 10.6.1998 (Exh.A-5), the petitioner issued notice U/S. 13-(A) of the Punjab Rent Restriction Ordinance, 1959, the respondent filed a suit for specific performance of agreement dated 20.8.1960 against Qamar Din through his legal heirs and ultimately the suit was laid to rest on 06.11.2008.
14.Both the Courts below are in agreement that no doubt notice under Section 13-(A) of the Punjab Rent Restriction Ordinance, 1959 was served but this notice is only helpful if it is proved that respondent is in possession of property as tenant of the vendor. The final conclusion of both the Courts below is that relationship of landlord and tenant does not exist between the parties.
15.The learned second appellate Court vide order dated 17.7.2007 remanded the case with the consent of parties and ordered that learned appeal Court will itself consider the impact and import of the contents of the paper book filed in CPLA No. 200/2005 in Honourable Supreme Court of Pakistan, both the parties were permitted to raise all questions of law and facts to the admissibility of the documents contained therein, or otherwise. The remand order shows that both the parties agreed that learned first appellate Court will examine the effect of page 183 of the paper book.
Page 183 is an agreement to sell dated 20.8.1960. The CPLA No. 202/L had arisen out of a judgment and decree passed by the civil Court in a suit for specific performance of agreement dated 20.8.1963 claimed by the respondent to be executed by Qamar Din. The claim of respondent in the said suit was that deceased Qamar Din had agreed to sell the property to him against consideration of Rs. 7050/- and he paid Rs. 100/- being the earnest money, the balance amount is payable in installment of Rs. 50/- per month. The deceased vendors defence was that agreement to sell dated 20.8.1960 is fake and forged document.
16. The clause 3 of the agreement is reproduced as under: {{URDU TEXT}} The above referred clause shows that respondent has admitted his possession of shop as tenant and further agreed to pay the rent of Rs. 6/-per month till the final payment is made in 138 months.
17.Now the question arose whether the respondent can resile from his own document on the basis of which he is justifying his possession on the property as owner and that the said agreement can be read in ejectment proceedings.
18.It is an admitted fact between both the parties that suit for specific performance was finally laid to rest by the orders of Honourable Supreme Court of Pakistan and the following finding of High Court was affirmed:-- "Under these circumstances, it stand clear that the plaintiff did not make any payment of remaining sale, consideration in any installment after 1960, therefore plaintiff himself has been failed to specifically perform the contract on his part and the plaintiff is not entitled to any relief of specific performance Under Section 24(b) of the Specific Relief Act."
19.The above referred findings of the Honourable Supreme Court of Pakistan shows that respondent failed to pay the balance sale price after 1960 and as such his suit is hit by Section 24(b) of the Specific Relief Act. The finding, of Honourable Supreme Court has settled the issue once for all to the effect that there was an agreement to sell between the respondent and Qamar Din and the non-performance of the agreement is on the part of respondent. The final judgment of Supreme Court of Pakistan is binding between all the parties. It is pertinent to mention here that appellant shoukat Ali is Respondent No. 3 before the Honourable Supreme Court of Pakistan. The stance of appellant vendor that agreement is forged and fake, was finally repelled by the Honourable Supreme Court of Pakistan. The Honourable Supreme Court's judgment dated 06.11.2008 is based on the documents, legal proceedings and statement of parties available in the paper book and is binding of all parties to the appeal. Clause 3 of the agreement is very clear, the respondent is admitting himself to be the tenant of vendor of the appellant and after the final judgment of Supreme Court of Pakistan the respondent's status as a tenant stand restored. The bare reading of Clause-3 shows that respondent come into possession of shop as tenant of Qamar Din.
20.The respondent has not denied the receipt of notice U/S. 13A of Punjab Rent Restriction Ordinance, 1959 but is claiming that he was not the tenant of any one. The true interpretation of Section 13-A has been dilated upon by the Hon'able Apex Court in Major (Retd) Muhammad Yousaf V. Mehraj-u-Din and others (1986 SCM R 751), Syed Azhar Imam Rizvi V. Mst. Salma Khatoon (1985 SCM R 24) and Mst. Huma Bilal V. Ghulam Farid (2005 CLC 983). In the above said judgments it is held that even if it is proved that notice U/S. 13-A was not served, the receipt of ejectment petition by the tenant is sufficient to establish the service of notice U/S. 13-A of the Punjab Rent Restrict Ordinance provided he came into possession of property as tenant by an agreement or through statute.
21.The earlier ejectment petition was defended by the respondent on the sole ground that his suit for specific performance is pending against the appellants. In the present ejectment petition the respondent has taken same defence but his defence came to end when his suit for specific performance stand finally decided by the Honourable Supreme Court of Pakistan. The argument of learned counsel for the respondent that paper book and its contents are not binding on the respondent has no force for the simple reason that this book was submitted by respondent before the Honourable Supreme Court of Pakistan. The respondent has given his consent on 17.4.2007 before the appellate Court that appellate Court can consider the impact and import of page No.
138. In terms of order dated 17.7.2007 the first appellate Court was only to assess the impact and import of agreement to sell available at page 138, but the first appellate Court wrongly interpreted the order dated 17.7.2007 while holding that agreement has come first time in the ejectment proceedings and as such it could not be looked into and dismissed the application of additional evidence. The perusal of order dated 17.7.2007 shows that there was no need for allowing and recording additional evidence. The paper book of CPSLA was an admitted document between the parties and the first appellate Court was to examine the impact and import of the document i.e agreement to sell. The status of agreement to sell has been finally settled between the parties and the entire litigation between the parties revolves around the said agreement to sell. The appellant was claiming through-out the litigation that agreement to sell is fake and forged document whereas the respondent was claiming that agreement to sell is genuine and deceased owner has executed the said document. Honourable Supreme Court of Pakistan finally settled that agreement is genuine but the nonperformance is at the part of respondent. The agreement between the parties is an admitted document and first appellate Court was bound to read the said document in evidence while deciding the appeal.
22.Under Article 147 of Qanun-e-Shahadat order, the statements and pleadings between the parties in earlier litigation are relevant and can be read in the subsequent litigation, further in this case the respondent has given the consent for considering the impact and import of the said document. The said document is relied upon by the respondent himself and as such it is readable in evidence in the ejectment proceedings. The net effect of the said evidence is that it is proved that status of the respondent is that he is a tenant in the shop. He has admitted the receipt of notice U/S. 13-A of the Punjab Rent Restriction Ordinance, 1959 and even if not received, the ejectment petition itself is a notice. From the above said discussion it is proved that respondent is tenant in shop but has failed to tender the rent in accordance with law in terms of demand of respondent notice, hence, he is liable to be ejected.
23.In view of the above, the ejectment petition is accepted and the order dated 16.9.2004 and 11.1.2008 are set-aside. The respondent is directed to hand over the vacant possession of the shop within one month from the date of announcement of judgment.