' MALIK SHAHZAD AHMAD KHAN, J.---This appeal has been filed to challenge the order dated 25-6- 2010, whereby, the ejectment petition, filed by respondent, was accepted by the learned Additional Rent Controller, Rawalpindi Cantonment.
2. Briefly stated facts of the case as gleaned from the present appeal are that the respondent filed an eviction petition against the appellant in respect of House No,7-A, Chur Harpal, Westridge-I, Rawalpindi Cantt. The said ejectment petition was filed on the ground of wilful default in the payment of rent. The appellant contested the said ejectment application and filed his written reply.
It was asserted by the appellant that he had purchased the above mentioned house from the respondent (landlord) through agreement to sell dated 10-5-2006, for a total consideration of Rs,30,00,000, out of which, Rs,5,00,000 was paid through cheque, and the remaining amount of Rs,25,00,000 was agreed to be paid at the time of sale transaction in favour of the appellant. The appellant claimed that in light of the above mentioned facts, the relationship of landlord and tenant between the parties did not exist. It was also stated that the appellant (defendant) has filed a suit for specific performance of agreement, and the learned Civil Court has confirmed the interim stay in favour of the appellant on an application moved under Order XXXIX Rules 1 and 2 of C.P.C., whereby the respondent (landlord) was restrained from interfering in the lawful possession of the appellant. The tenant/appellant lastly contended .That the respondent instead of performing his contractual obligations, has filed the ejectment petition against him without any justification.
3. On the basis of divergent pleadings of the parties, the learned trial court framed the following issues in order to resolve the controversy: - ISSUES
(1) Whether there exists relationship of landlord and tenant between the parties? OPP.
(2) Relief
4. After framing of necessary formal issues, the parties were directed to adduce their respective evidence in support of their claims.
' The respondent appeared as P.W.1, and produced documentary evidence in the shape of Exh.P.1 to Exh.P.7, Mark-A and Mark-B.
' As against it, the appellant appeared as RW.1 and produced only one document in his defence evidence as Exh.R.1.
5 . The proceedings on eviction petition were adjourned sine die by the learned Additional Rent Controller, Rawalpindi Cantt, vide order dated 21-3-2009, on the ground that a civil suit was pending between the parties, therefore, the case was adjourned till decision of the said civil suit.
The above mentioned order, was challenged by the respondent through Writ Petition No,731 of 2009, which was accepted by this Court vide order dated 3-5-2010 with the direction to the learned. Additional Rent Controller, Rawalpindi Cantt to decide the eviction application afresh in accordance with law, within a period of twenty days from communication of the said order. The appellant has not challenged this order any further before the Hon'ble Supreme Court of Pakistan and thus the same has attained finality.
6. The learned Additional Rent Controller, after remand of the case, considered oral as well as documentary evidence of the parties and then accepted the ejectment petition, vide order dated 25-6-2010, and directed the appellant to hand over the vacant and peaceful possession of the rented property to the respondent within 90 days.
7. The appellant has filed the instant appeal against the above mentioned order, passed by the learned Additional Rent Controller, Rawalpindi Cantt.
8. It is contented by the learned counsel for the appellant that the appellant has purchased the suit property through an agreement to sell dated 10-5-2006, therefore the relationship of landlord and tenant ceased to exist between the parties, thus, the appellant was not liable to pay rent to the respondent (landlord); that possession of the disputed house was handed over to the appellant as a result of part performance of the above mentioned agreement, therefore, the order of eviction could not be passed against the appellant in view of section 53-A of the Transfer of Property Act (IV of 1882); that the entire evidence, produced by the appellant/tenant, was not discussed by the learned Rent Controller in its true perspective, while passing the impugned order; that the impugned order is a non-speaking order, therefore, the same is liable to be set-aside; that complicated question about title of property was involved in the instant case, which cannot be resolved by the learned Rent Controller, and the matter should have been left for decision by the Civil Court, therefore the impugned order may be set-aside; that if Issue No,1 about relationship of landlord and tenant between the parties was decided in favour of the respondent, even then the learned Rent Controller cannot evict the appellant outrightly and the respondent was bound to establish his plea of wilful rent default. In support of his above mentioned contentions, the learned counsel for the appellant has placed reliance on the case-law reported as Ashfaque Ahmad and 8 others v.
Nadeem Ahmad and 3 others (PLD 2006 Lahore 643), and Naseer Ahmed Awan v. Sub-Registrar, Lahore and another (2007 MLD 1606).
9. Conversely, the learned counsel for the respondent (landlord) has vehemently opposed this appeal on the grounds that mere agreement to sell does not create any title in an immovable property, and the appellant/respondent was liable to pay rent to the landlord/respondent, in spite of execution of the said agreement; that the appellant has admitted that he has not paid rent to the landlord with effect from 10-5-2006, therefore, ground of rent default was established on record; that in the earlier round of litigation, it was held by this Court vide order dated 3-5-2010 that the present appellant could not be absolved of his liability to pay rent on the basis of agreement to sell; that the said judgment of this Court has attained finality, as the same has not been challenged any further by the appellant; that it was established through cogent evidence that there exists relationship of landlord and tenant between the parties; that the rent default was also proved, therefore, the appellant was liable to be ejected on this score alone; that the suit of the appellant for specific performance of agreement filed against the respondent (landlord) has already been dismissed by the learned Civil Judge, Rawalpindi, vide judgment and decree dated 30-9-2011, therefore, this appeal is liable to be dismissed. The learned counsel for the respondent, in support of his above mentioned contentions, has placed reliance on the following case-law:--
(i) Muhammad lqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others (2009 SCMR 1396);
(ii) Sabir Ali Sheikh v. Haft Nawaj Din (2002 MID 384 Lahore);
(iii) Malik Ameer Bakhsh v. Additional District Judge, Multan and 3 others (PLD 2006 Lahore 793);
(iv) Amjad Mehmood Khokhar v. Farasat Hussain and 2 others (2009 CLC 114 Lahore) and
(v) Muhammad Saeed v. Haji Mehmood-ul-Hassan through Special Attorney and 2 others (2010 MLD 45 Lahore).
10. Arguments heard and record perused.
11. A petition under section 17 of the Cantonments Rent Restriction Act, 1963 was filed by the respondent (landlord) on the ground of rent default against the appellant, in respect of House No,7-A, Chur Harpal, Westridge-I, Rawalpindi Cantt. The said eviction petition was contested by the appellant (tenant) on the ground that he had purchased the above mentioned property through an agreement to sell dated 10-5-2006 therefore, the relationship of landlord and tenant between the parties did not exist. It was admitted by the appellant while appearing as RW.1 that he did not pay the rent to the landlord after execution of the above mentioned agreement to sell dated 10-5- 2006. In this way, the rent default was admitted by the appellant (tenant).
12. It was first contended by the learned counsel for the appellant that as an agreement to sell was executed between the appellant (tenant) and the respondent (landlord), therefore, the relationship of landlord and tenant ceased to exist between the parties.
' The above contention of the learned counsel for the appellant is misconceived. In this regard, section 54 of the Transfer of Property Act, 1882 is the relevant provision of law, which reads as under:- "Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
' It is evident from the perusal of above mentioned provision of law that mere an agreement/contract for sale does not create any title in respect of an immovable property, therefore, the contention of the learned counsel for the appellant that on the basis of above mentioned agreement to sell, the relationship of landlord and tenant did not exist between the parties, has no force in the eyes of law. Reference in this context may be made to the case of Abbas Ali Khan v. Mst. Farhat lqbal and 2 others (2009 SCMR 1077). It was held in the said judgment as under:- "S.13--Ejectment of tenant on grounds of default and bona fide need of landlady-Tenant taking the plea that he was owner of the property on the basis of an agreement to sell executed by the landlady-Validity-Tenant had not filed any copy of the said agreement of sale with the petition and admitted that the original of same had been lost---Tenant had admitted the title of landlady in his pleadings and that he obtained the possession of the premises from her-Agreement to sell, held; did not confer title and tenant on the basis of such agreement was not entitled to deny relationship of landlord and tenant---Plea of tenant being mala fide, he was liable to be straightaway ejected."
' Similar view was taken in the cases of Wajid Ali Khan v. Sheikh Murtaza All and 2 others (2003 SCMR 1416) and Mst. Bor Bibi and others v. Abdul Qadir and others (1996 SCMR 877).
13. The next contention of the appellant was, that a suit for specific performance of agreement to sell, was pending between the parities in the Court of learned Civil Judge, Rawalpindi, therefore, the learned Rent Controller should have stayed the proceedings on eviction petition filed by the respondent till final decision of his suit by the Civil Court.
' The said argument of the learned counsel for the appellant is not convincing. Mere pendency of a civil suit filed by a tenant on the basis of an agreement to sell, is no ground to stay the eviction proceedings pending before the Rent Controller. In my above mentioned views, I am fortified with the judgment, passed by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Azam and another v. Muhammad Akram (2008 SCMR 1034). The relevant paragraph of the above mentioned judgment is reproduced hereunder:-- "Pendency of tenant's suit against landlord for specific performance of agreement to sell---Plea of tenant was that after such agreement, his possession over premises was no longer as tenant, but as owner thereof, thus, he could not be evicted therefrom till final decision of his suit---Such plea was repelled concurrently by two lower Appellate Courts---Supreme Court upheld ejectment order, dismissed petition and refused leave to appeal."
' It is by now a well settled-law that mere filing of a suit by the tenant against the landlord for Specific Performance of agreement to sell, cannot be considered a ground to stay the proceedings in rent cases.Reference in this context may also be made to the case of Muhammad lqbal Haider and another v. Vth Rent Controller/Senior Civil judge, Karachi Central and others (2009 SCMR 1396), and Malik Ameer Bakhsh v. Additional District Judge, Multan and 3 others (PLD 2006 Lahore 793).
A tenant could not be protected from ejectment merely by asserting agreement to sell in his favour or by filing a suit for specific performance of agreement to sell, unless sale-deed was executed in his favour and agreement to sell had been enforced. Filing of civil suit does not vitiate the title of the landlord unless the same was finally decided. Similar view was taken by this Court in the case of Sabir Ali Sheikh v. Haji Nawab Din (2002 MLD 384 Lahore).
14. The leaned counsel for the appellant has also argued that complicated and intricate question of title was involved in this case, therefore, the learned Rent Controller should have left the matter to be decided by Civil Court. 'The said argument of the learned counsel for the appellant is not convincing. It is duty of the Rent Controller to see as to whether or not, there is any genuine and complicated question involved about the title of the leased property. Only those cases can be left to be decided by the Civil Court, where intricate and complicated questions regarding the title of immovable property are involved. In the present case, neither there was any dispute qua the ownership of landlord/respondent nor there was any intricate or complicated question involved about the title of leased premises. The appellant has himself admitted that the respondent was owner of the leased house and he agreed to sell the said premises to him. Thus, no complicated or intricate question was involved regarding the ownership of the leased house and, as such, there was no need to leave the matter to be decided by the Civil Court. Reference in this respect may be made to the case of Muhammad Akram v. Haji Ijaz Ahmed and others (2006 SCMR 946). The relevant part of the above mentioned judgment is reproduced hereunder:- "S.I3--Denial of relationship of landlord and tenant between parties on basis of agreement to sell in favour of respondent---Prayer for reference of question of title to Civil Court-- Validity-Landlord in ejectment petition was required to prove his entitlement to receive rent by proving induction of respondent in premises as tenant---Neither there was any dispute nor same could be raised qua ownership of landlord as respondent's own case was that landlord had agreed to sell premises to him---Question of title, thus, not disputed, which eould be referred to Civil Court for resolution".
15. The appellant set up another plea that the ejectment petition could not be allowed against him in view of section 53-A of the Transfer of Property Act (IV of 1882), because he (the appellant) was in possession of the leased premises as a result of part performance of agreement to sell between the parties.
The said plea of the appellant is not effective. A tenant cannot protect his possession over the leased house by invoking the provisions of section 53-A (ibid). The said proposition of law has already been discussed by the Hon'ble Supreme Court of Pakistan in its various judgments and this plea of the tenants was never accepted to be a valid defence in their favour to keep their possession over the leased property. Reference in this context may be made to the case of lqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 Supreme Court 242). In the above mentioned case, the Hon'ble Supreme Court of Pakistan has held as under:-- "(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) 5.13---Transfer of Property Act (IV of 1882), S.53-A--Specific Relief Act (1 of 1877), S.12---Ejectment application--- Plea of agreement to sell of demised premises by tenants in their favour-Effect---Ejectment application could not be stayed or stalled on a plea that tenants in possession were holding agreement to, sell--- Pendency of a suit for specific performance of agreement would also be no ground to avoid eviction of tenants by Rent Controller---Where such plea raised in defence by tenants was not effective, next order to be passed would be one for eviction".
' It is, therefore, clear that the appellant cannot claim the protection of section 53-A of the Transfer of Property Act, 1882, and the eviction petition of the respondent was rightly accepted by the learned Additional Rent Controller, Rawalpindi Cantt, when wilful default in payment of rent was established against the appellant.
16. It was lastly argued on behalf of the appellant that though the issue regarding the existence of the relationship of landlord and tenant between the parties was decided in favour of the respondent, even then, the learned Rent Controller should have taken into consideration as to whether or not there was any willful rent default on behalf of the appellant and the appellant could not be evicted straightaway.This contention of the learned counsel for the appellant is misconceived. The appellant while appearing as RW.1 has admitted that after execution of the rent agreement on 15-9-2002, he did not pay any rent to the respondent (landlord). In view of the above admission of the appellant (tenant), and as the relationship of landlord and tenant was denied by the appellant, therefore, the learned Rent Controller has rightly passed the order of eviction after giving its findings in favour of the respondent (landlord) on the issue of existence of relationship' of landlord and tenant between the parties.
' I am fortified in my above views with the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Rabnawaz v. Haji Muhammad lqbal and 2 others (2003 SCMR 1476). The relevant part of the said judgment -- reads as follows:-- "---S.13 (as applicable to Province of N.-W.F. P. )--- Relationship of landlord and tenant, existence of proof---All the facts on record, statement of witness and plaint in a civil suit indicated that relationship of landlord and tenant existed between the parties-Application for ejectment by the landlord having been based on default, and the required relationship of landlord and tenant having been denied by the tenant the tenant was liable to be ejected straightaway when the required relationship was proved in affirmative".
17. The judgments cited by the learned counsel for the appellant are distinguishable from the facts of the present case. In the above referred case of "Ashfaq Ahmad" (PLD 2005 Lahore 643), the judgment was given by this Court in a pre-emption case. Similarly, the case of Naseer Ahmad Awan v. Sub-Registrar, Lahore and another (2007 MLD 1606) has different facts. The above mentioned judgments were not given in rent matters, therefore, the same are not relevant for the decision of issues, which are involved in the present appeal.
18. The learned counsel for the appellant could not point out any illegality or material irregularity or legal or factual infirmity in the impugned order, passed by the learned Additional Rent Controller, Rawalpindi Cantt., dated 25-6-2010, therefore this appeal has no merits and the same is, hereby, dismissed.