' MUHAMMAD SHAFI SIDDIQUI, J.--- This petition is the outcome of the rent proceedings filed under section 15, and appeal under section 21 of Sindh Rented Premises Ordinance, 1979.
2. Brief facts of the case are that, the petitioner filed an application under section 15 of Sindh Rented Premises Ordinance, 1979 contending therein that the respondent No,1 entered into a rent agreement on 22-8-2005 for the tenancy to commence from 1st September, 2005 @ monthly rent of Rs,15,000/- per month payable on 5th of each calendar month in advance. The only ground that is taken in the Rent Application is that the respondent failed to tender monthly rent w,e,f, September, 2006. Learned counsel submits that the mala fide of the respondent No,1 is apparent as the Cheque No,3307220 dated 11-9-2007 for Rs,45,000/- towards rental amount was dishonoured and consequently legal notice was issued on 20-3-2007 but no reply was received.
3. The case of the respondent as setup in the written statement is that subsequent to rent agreement, the petitioner and the respondent No,1 entered into an agreement of sale of the subject premises on 7-4-2006 for a total sale consideration of Rs,5,500,000/-. He submits that the respondent paid an amount of Rs,3500000/- in cash and after adjusting the security amount of Rs,75000/- the balance sale consideration was only to be paid. However, subsequently, the respondent learnt that the property was mortgaged with Bank Al-Falah and the petitioner has also executed general power of attorney in favour of bank authorizing the bank to sile the mortgaged property.
4. Both the parties filed their respective affidavit in evidence and were duly cross-examined. The petitioner has denied that he ever entered into an agreement of sale with respondent No,1 and submitted that throughout in the proceedings the petitioner has maintained instance that they have not entered into an agreement of sale, however, inadvertently, in the cross-examination with reference to a question of sale agreement it is written as "correct" that they have entered into an agreement of sale instead of "incorrect". Learned counsel for the petitioner submits that even in the affidavit in evidence of the witnesses this version is categorically mentioned that no such agreement of sale was executed. Learned counsel submits that during cross-examination of respondent it was suggested to him that he did not pay rent since April, 2006, therefore, in cross of petitioner it was wrongly mentioned as correct regarding sale agreement as stated above.
5. It is urged that in view of this disputed question regarding the relationship of landlord and tenant, the trial court/Rent Controller was pleased to frame issues including the issue as to whether relationship of landlord and tenant exists or otherwise. Consequently, after recording evidence the trial Court dismissed the application of the petitioner. On the ground that there exists no relationship of landlord and tenant as the sale agreement was executed between them subsequently.
6. Aggrieved with the findings of the Rent Controller, the petitioner filed 1st Rent Appeal No 156 of 2009 which also met the same fate.
7. It is the case of the applicant that the sale agreement which is claimed to have been executed is a forged and fabricated document. The said agreement was never signed by the petitioner and that it is apparently forged and also that the amount of Rs,3,500,000/- was claimed to have been paid in cash though the respondent had been paying the rent of the premises in the sum of Rs,15,000/- through cross cheque. Learned counsel further submits that be that as it may, the relationship of landlord and tenant cannot be terminated on the basis of agreement of sale unless a registered sale-deed is executed. He further submits that the property was mortgaged with the bank and the power of attorney was also executed in favour of the bank and the petitioner could not enter into an agreement of sale. Learned counsel for the petitioner submits that it is not shown by the respondent that before the alleged sale agreement any public notice was issued in any newspaper. Learned counsel submits that suit for specific performance filed by respondent was also dismissed. Thus all the above facts went on to prove that it is a fabricated, .Forged and manufactured document.
8. On the other hand learned counsel for respondent submits that the sale agreement specifically provides that the relationship of landlord would be terminated on execution of the sale agreement and that the possession of the said bungalow is confirmed in favour of the vendee in this sale transaction and that no rent is payable after the execution of subject sale agreement. Learned counsel submits that they have filed a suit for specific performance in the court of no appeal is preferred, however, an application for restoration was filed which was also dismissed on 23-7-2011.
Learned counsel submits that despite dismissal of suit for Specific Performance no prejudice,would be caused to him / respondent as the terms of sale agreement are such that the rent agreement was terminated and respondent was not under any obligation to pay rent of the premises. Learned counsel for respondent submits that if at all the petitioner intends to dispossess the respondent he has to file a suit for possession as the relationship of landlord and tenant ceased to exist after the execution of sale agreement. Learned counsel for respondent has relied upon the case of Shakeel Ahmed v. Muhammad Tariq Farogh reported in 2010 SCM R 1925, Niaz Mohy-ud-Din v. Muhammad Yar reported in 1994 CLC 1622, Sh. Abdur Rashid v. Sh. Mubarik Ali and others 1994 CLC 1617 and lastly Hikmat Khan v. Shamsur Rehman (1993 SCM R 428).
9. Heard the learned counsel and perused the record.
10. Admittedly, the findings of the trial Court as well as that of appellate court are based on the fact that the agreement of sale was executed between the petitioner and the respondent No,1 and pursuant to the sale agreement the respondent No,1 filed suit for specific performance as referred above, however, the trial Court as well as appellate court has failed to give finding with regard to the fact that the respondent No,1 was already occupying the premises in question as tenant which possession was never surrendered before he could re-occupy the premises in question in part performance of sale agreement. No doubt, in terms of clause (3) of the sale agreement it has been specifically agreed that the rent agreement ceased to exist and that from that day onwards he is not liable to pay rent, however, it is to be ascertained as to whether after execution of sale agreement vendee has taken steps in furtherance of the alleged contract. The step that has been taken by the vendee/respondent No,1 was that he filed a suit for specific performance which suit was dismissed. Admittedly no appeal is preferred by the respondent No,1. Application for restoration of suit filed was dismissed for non-prosecution. This fact is admitted by the learned counsel for the respondents and I have also called the record and proceedings of the Suit No, 103 of 2009 which confirms that the suit was dismissed. In my tentative view since the title of the respondent No,1 was not established even prior to the filing of suit, the Rent Controller should have stayed the proceedings instead of proceeding to determine the fate of the rent case which was decided against the petitioner as the ejectment application was dismissed. The only ground on the basis of which an application for ejectment was dismissed was that the agreement of sale was executed between the petitioner and respondent.
11. There is no cavil to this proposition that the agreement of sale does not create any title, therefore without determination of such title by the civil court the findings of the Rent Controller seems to be pre-mature A as apparently it seems to have resulted in miscarriage of justice as in the instant case the respondent could not prove the execution of sale agreement as the suit for specific performance was dismissed and no appeal is preferred.
12. It does not sound convincing that a person who failed in an attempt to succeed in a suit for specific performance yet he insist that the agreement of sale is still alive as he claimed that in terms of clause (3) of the sale agreement he is not liable to pay rent. In my view the dismissal of the suit would lead to this conclusion that the respondent No,1 failed in an attempt to establish the terms of the sale agreement as when the sale agreement could not be proved then how its contents could be relied upon. Thus when the learned counsel for petitioner pleaded in written statement that the sale agreement is forged and fabricated, it sound as if the respondent No,1 failed in attempt to prove sale agreement and the contention of the petitioner's counsel is affirmed. The jurisdiction of Rent Controller starts from the determination of the title by civil court as the Rent Controller should have stopped the proceedings and waited for the decision which he failed. He held the issue of relationship between the parties only on the basis of sale agreement.
The Rent Controller on the basis of mere agreement of sale cannot hold that there exists no B relationship of landlord and tenant unless a suit for specific performance is decreed.
13. Section 53-A is recognized as defence against the suit for possession filed by the purported owner and person occupying the premises in part performance of agreement of sale can defend his possession pursuant to section 53-A of the Transfer of Property Act, however, the referred cases by the respondent are not applicable to the instant case as here the question of landlord and tenant is also involved which question was never raised in the referred cases and more importantly the suit for specific performance is already dismissed and no appeal is preferred.
14. As far as the case of Shakeel Ahmed reported in 2010 SCM R 1925 and the case of Niaz Moeen-u- Din 1994 CLC 1628 are concerned, the same deal only with the concurrent findings of two courts below, I may observe that these two referred cases are not applicable since the trial Court as well as appellate court have not taken into consideration the law which regulates to determine the relationship of landlord and tenant.
15. In the case of Sh. Abdul Rasheed reported in 1994 CLC 1617 it appears to be a dispute between the seller and buyer and the question of relationship of landlord and tenant was not raised and that the facts and circumstances of the referred cases are quite different from the present case where the suit is dismissed and previous relationship of landlord and tenant not denied.
16. Lastly the case of Hikmat Khan reported in 1993 SCM R 428, provides protection to the vendee who have obtained possession in pursuance of the sale agreement and in furtherance of part performance of the agreement, however, the referred case is also distinguishable as in the instant case the petitioner has vehemently disputed the execution of sale agreement and hence when the suit of the specific performance of respondent No,1 is dismissed the assertion of the respondent that he obtained possession in part performance of that agreement was also not proved and since the previous relationship of landlord and tenant is admitted, therefore, the parties could only enjoy such relationship in the absence of any proof of execution of sale agreement.
17. On the other hand in the case of Aleem-ud-din v. Muhammad Saleem reported in 1991 SCM R 850, the Honourable Supreme Court has held as under:--- "After examining this aspect of the case we do agree that in the circumstances thereof the prayer made by the learned counsel is fair and in accord with the dictates of justice. It is, accordingly, held that the decisions in the hierarchy of the Rent Restriction Law in this case would be, subject to the final verdict in the general jurisdiction of the Civil Court.
' On merits, insofar as the order of the eviction is concerned, it would remain valid till the final decision on the Civil Court side. Accordingly, with these observations this appeal is dismissed.
' On the question of protection of the possession of the appellants till the decision by the Civil Court, learned counsel for the caveator did put up a spirited resistance; understandably with a view to oust the appellants before they are able to get final verdict in the hierarchy of the Civil Courts. We having made observation that the judgments impugned in this case shall be subject to the final verdict by the Civil Court, it is but natural that till the Civil Court is able to render the final decision and/or is able to control the question of possession (till the decision by that Court) the appellants should be provided limited protection till they are able to apply before the Civil Court and obtain an order thereon, interim or otherwise, granting/withholding interim relief. Accordingly in the facts of this case, in exercise of the power of this Court to do complete justice, the appellants are allowed one month's stay to seek / apply for interim relief from the Civil Court. There shall be no order as to costs."
18. Similarly, in the case of Kassim v. S. Rahim Shah reported in 1990 SCM R 647, the Honourable Supreme Court in the concluding para has held as under:--- "Even if the agreement of sale was executed by the previous owner on a prior date before the registered sale-deed, by virtue of section 50 of the registered sale-deed, nonetheless has precedence over the prior unregistered deed of agreement. This position would remain till such time the Civil Court passes a decree against the respondent in any of the suits pending in respect of the property. However, for the purpose of the Rent Controller, the position as it stands today was sufficient to satisfy the requirements of law that the respondent was landlord entitled to recover rent. In this view of the matter we find no reason to interfere with the decision of the High Court, which is unexceptionable."
19. Similarly, in the case of Sh. Manzoor Ahmad v. Mst. Iqbal Begum reported in 1989 SCM R 949, the Honourable Supreme Court has held as under:--- "IL may also be observed that 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 but it does not, of itself create any interest in or charge on such property. Therefore the agreement of sale by Mst. Gulfrain Riaz in favour of the respondent and payment to her of any amount did not create any interest in or charge on the property."
20. Since the proceedings of Rent Controller were culminated before the dismissal of the suit, therefore, I have called the R&Ps of Suit No,103 of 2009 from the trial Court and perused that on 15- 4-2010 the suit was dismissed for non-prosecution on application filed under Order XVII, Rule 3, C.P.C. Despite opportunities given to the respondents and even the restoration application was dismissed on 23-7-2011. Admittedly, the suit for specific performance which is the D main basis of dismissal of ejectment application was dismissed and even the restoration application was dismissed and till date it is contended by respondent's counsel that no appeal is preferred. I am therefore, of the considered view that clause (3) of the agreement of sale cannot be relied upon under the circumstances of the case when the agreement itself could not be proved by the respondent No,1 as the suit for specific performance was dismissed.
21. I, therefore, in view of the above facts and circumstances of the case grant this petition with no order as to costs.
' The R&Ps of Suit No,103 of 2009, Rent Application No,6 of 2009 and F.R.A. No,1561 of 2009 be sent back to their respective parties.