' ALI AKBAR QURESHI, J.--- This Constitutional petition is preferred against the validity and propriety of a judgment dated 25.01.2016, passed by the learned Additional District Judge, Lahore, in an ejectment petition filed under the provisions of the Punjab Rented Premises Act, 2009, whereby the learned Appellate Court accepted the appeal filed by the respondents, set aside the ejectment order dated 21.06.2014, allowed the petition for leave to contest and defend the suit, and remanded the matter to the learned Special Judge Rent, Lahore, for >afresh decision on the ejectment petition filed by the petitioner.
2. It is necessary to give the brief history of the case before deciding the Constitutional petition:- ' The rented premises No, 121-D Gulberg-II, Lahore, owned by the petitioner was rented out at the monthly rent of Rs,200,000/- with an annual increase of 10% to the respondent No,3; Rs,12,00,000/- was paid as advance rent of six months along with security amount of Rs,600,000/- and by this way, the respondent No,3 paid a sum of Rs,18,00,000/-; a written agreement was also executed for a period of 11 months in favour of the petitioner; the registration of the lease agreement .Under Section 5(2) of the Act ibid was although contested by the respondents Nos.3 to 5 but ultimately it was ordered to be registered by learned Special Judge Rent; that during the process of registration of the lease agreement, the respondents filed a suit for specific performance of an agreement to sell allegedly executed by the petitioner along with an application for interim relief; the application was dismissed on 12.07.2013; the petitioner, after succeeding to register the lease agreement, filed an ejectment petition; the respondent, in response of the notices, appeared before the Court, filed an application for leave to contest which was dismissed; against which an appeal was filed by the respondent which too was dismissed; the respondent, being dissatisfied of the dismissal of 'the appeal dated 13.07.2013, filed a Writ Petition No,29341/2013, which was also dismissed; finally the ejectment petition, filed by the petitioner, was allowed and the respondents were directed to hand over the vacant possession of the premises to the petitioner Within thirty days. Against the acceptance of the ejectment petition order dated 2-1.06.2014, the respondents filed an appeal before the learned Additional District Judge, Lahore, which was finally allowed and the case was remanded to the learned Trial Court for afresh decision. ,
3. Learned counsel for the respondents, at the very outset of the arguments submitted, that the application for the consolidation of the suit for specific performance of an agreement filed by the respondents and ejectment petition filed by the petitioner is still undecided but the learned Special Judge Rent, without taking cognizance of this aspect of the case, allowed the ejectment petition.
4. Unfortunately, the learned counsel for the petitioner had not annexed the application for consolidation of the aforesaid two suits and the same was also not available with the learned counsel for the respondents, therefore, on their request, the record was summoned.
5. During the course of arguments, it was admitted by both the .Learned counsel for the parties, that the application for consolidation of suits was filed in the suit for specific performance of the agreement, filed by the respondents.
6. Learned counsel for the petitioner, in response thereof submitted, that the application filed by the respondents for the consolidation of the suit has nothing to do with the appeal filed by the respondents against the acceptance of the ejectment petition. Further submitted, that the order of remand made by learned Appellate Court is otherwise without lawful authority on the ground, as the consolidation of suit for specific performance and ejectment petition is otherwise not permissible in law.
7. Heard. Record perused.
8. In order to examine the validity of the remand order made by the learned Appellate Court, the record of the case, including the suit for specific performance and the ejectment petition, was perused with the assistance of learned counsel for the parties. From the record of the case it is found, that the relationship of landlord and tenant is admitted which is on the basis of a lease agreement, admittedly executed by the respondent in favour of the petitioner. The lease agreement was got registered under Section 5(2) of the Act ibid, which is reproduced as under:- "5. Agreement between landlord and tenant.--
(1) .................................................
(2) A landlord shall present the tenancy agreement before the Rent Registrar. "
As per record, the agreement to sell was executed on 05.06.2012, whereas the lease agreement is dated 28.02.2012, therefore, the A agreement to sell which is later in time would have no effect upon the ejectment petition and the tenancy is to be regulated by the terms of the lease agreement. The alleged agreement to sell was prepared on 05.06.2012 which is admittedly after the registration of the lease A agreement dated 28.02.2016 of the rented premises and the respondent has filed the suit for specific performance on the basis of the aforesaid agreement, which is still pending adjudication.
9. Although a suit for specific performance has already been filed by the respondents on the basis of the agreement to sell but it is to be seen, as to whether the alleged agreement to sell was got registered or brought into the notice of the learned Special Judge Rent. The Legislature, in order to curb and discourage the old practice, when most of the tenants taking the benefit of lacunas of late enactment namely, .West Pakistan Urban Rent Restriction Ordinance, 1959, used to prepare agreement to sell during the currency of the tenancy to deprive the landlord/land owner from the monthly rent and even some times from their title, in the new law (Punjab Rented Premises Act, 2009) has inserted Section 10, which is reproduced as under: "Effect of other agreement.--- An agreement to sell or any other agreement entered into between the landlord and the tenant, after the execution of a tenancy agreement, in respect of premises and for a matter other than a matter provided under the tenancy agreement, shall not affect the relationship of landlord and tenant unless the tenancy is revoked through a written agreement entered before the Rent Registrar in accordance with the provisions of section 5. "
' The aforesaid provision of law is self-explanatory and needs no further interpretation.
10. It is admitted on record, that in this case, no exercise for the revocatiOn of tenancy agreement through a written revocation agreement provided under Section 5 of Act ibid was initiated nor the agreement to sell, in any manner whatsoever, was placed before the Rent Registrar/ Special Judge Rent, therefore, the alleged agreement to sell claimed to have been executed by the petitioner would have no baring effect upon the pendency of the rent petition/appeal. Reliance is placed on Haii Muhammad Saeed v. Additional District Judge (2012 M LD 108). The learned Civil Judge/Trial Court, before whom the suit for specific performance filed by the respondents is pending, will also look into this aspect of the case while deciding the suit for specific performance.
11. Since, the relationship of landlord and tenant between the parties is admitted, the leave to defend filed by the respondent/tenant was dismissed, thus, it is observed, that the respondent failed to prove his case before the learned Special Judge Rent. It is settled proposition of law, that mere pendency of a suit for specific performance on the basis of an agreement to sell of the rented premises executed during period of tenancy is not a sufficient ground to dismiss the ejectment petition. Needless to mention, that it has already been held in plethora of judgments, that in case the vendee/tenant succeeds in getting a decree in the case of specific performance, the tenant can ask for the re-possession of the rented premises.
12. The learned Appellate Court, who remanded the matter, unfortunately completely failed to apply its judicious mind or to exercise the jurisdiction vested with it while deciding the appeal filed by the respondent. The learned Appellate Court has not even bothered to see the record of the instant case and to consult the law applicable on the case. The learned Appellate Court, as appears from the record of the instant case, had sufficient material to decide the appeal on its own merits instead of remanding the matter on flimsy grounds to the learned Special Judge Rent for re-decision of the ejectment petition. It has been held many a times by the Superior Courts, that the cases should not be remanded in routine but in extraordinary circumstances and if the material is available and sufficient to decide the appeal on merits, the appeals etc. Should finally be decided on merits, instead of remanding the matter on technicalities. Reliance is placed on Muhammad and 9 others v.. Hasham Ali (PLD 2003 SC 271) Ashiq Ali and others v. Mst. Zamir Fatima and others (PLD 2004 SC 10) and Mst. Shahida Zareen V. Iqrar Ahmed Siddiqui (2010 SCM R 1119).
Relevant part of the judgment supra (PLD 2003 SC 271) is reproduced as under:- "8. The appellate and the revisional Court is always empowered to remand the case in terms of Order XLI, Rule 25, C.P.C. But this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point as a pivotal question of fact decided the same in the light of evidence available on record, the remand of the case in appeal or revision for mere reason that a specific issue was not framed on such point is not proper exercise of jurisdiction. The case in hand was not of the nature in which without framing a specific issue the controversial question regarding nature of transaction whether sale or mortgage could not be decided by the appellate Court on the basis of evidence available on record therefore, remand of the case by the appellate Court on the trial Court was not proper and further the High Court instead of saving the parties from unnecessary agony of litigation committed the same mistake and remanded the case to the trial Court with additional direction of framing of fresh issue and recording of further evidence if need be. The proper course for the High Court was to send the case back to the appellate Court for decision of appeal on merits. "
13. In view of above, this writ petition is allowed, the appeal of the respondents is dismissed and the ejectment order passed by the learned Special Judge Rent, Lahore is upheld. No order as to costs.