' ANWAR ZAHEER JAMALI, C.J.---This petition for leave to appeal has been directed against the judgment dated 11.03.2016 in F.R.A. No,30/2014, passed by learned Single Judge of the Sindh High Court, Karachi. By this judgment, appeal filed by the present respondent/tenant was allowed against the order passed by the Additional Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No, 24 of 2012 whereby, under section 17(9) of the Cantonments Rent Restriction Act, 1963, defence of the respondent was struck off, and she was directed to vacate the rented premises within a period of thirty days.
2. Succinctly stated, relevant facts of the case are that the petitioner and respondent entered into two agreements dated 11.1.2011 with regards to House No, 8, 34th Street off Khayaban-e-Muhafiz, Phase VI, DHA, Karachi (in short "rented premises"), which the petitioner owned and had constructed in the year 2005. An Agreement to Sell, was entered into, wherein it was agreed that the total sale consideration of rented premises would be Rs,2,35,00,000/-, and a sum of Rs,15,90,233/- was deposited by the respondent in the petitioner's account as advance while the balance sale consideration amount of Rs,2,19,09,767/- was to be paid by the respondent to the petitioner on or before 30th June, 2011 at the time of execution of the conveyance deed.
Simultaneously, a Tenancy Agreement was also executed between the parties on the same date, whereby respondent was inducted in the rented premises as tenant for a period of six months commencing from 1st January, 2011 on payment of Rs,1,00,000/- per month The respondent paid Rs,6,00,000 to the petitioner on account of the tenancy in the manner that Rs,3,00,000/- was towards advance payment of rent for three months from January, 2011 to March, 2011 and Rs,3,00,0000- as fixed security deposit refundable on vacating the rented premises after deduction of unpaid bills and damages, if any. It is an admitted position that the respondent stopped paying rent after March 2011 and also failed to pay the balance sale consideration to get the conveyance deed registered, but retained the possession of the rented premises. Consequently, in March 2012 the petitioner filed eviction application, R.C. No, 24 of 2012 against the respondent in the Court of Rent Controller Cantonment Board Clifton on the ground of default in the payment of rent. During these proceedings, the learned Controller, after hearing the parties, without framing issues or points of determination, vide order dated 17th April, 2014, passed the rent order, directing the respondent to tentatively deposit future rent from May, 2014 onwards at the rate of Rs,1,00,000/- per month and also to deposit the arrears of rent amounting to Rs,37,00,000/- from April 2011 to April 2014 on or before 20-05-2014. Upon failure to comply with the rent order, on 02.06.2014, the petitioner filed an application under section 17(9) of the Cantonments Rent Restriction Act, 1963 for striking off of the defence of the respondent due to such non-compliance. This application was allowed by the learned Controller and the respondent was, thus, directed to vacate the rented premises and hand over its possession to the petitioner within thirty days vide order dated 04.09.2014.
3. The respondent assailed the above order of the Rent Controller before the High Court of Sindh in F.R.A. No,30/2014, wherein on 02.2.2016, arguments were heard and the judgment was reserved, which was announced on 11.03.2016, whereby the appeal of the respondent was allowed by setting aside the order of the Rent Controller and case was remanded to the Court of the Rent Controller to allow the parties to lead their evidence, produce documents on the point of relationship of landlady and tenant and thereafter to decide the case in accordance with law within a period of three months.
4. It is such order of the High Court which is the subject matter of the instant petition.
5. Learned ASC for the petitioner submitted that the impugned order is contrary to law; it is miscarriage of justice, and suffers from serious legal infirmities, therefore, it is liable to be set aside.
He further submitted that the learned High Court failed to take into consideration all the material on record, including the admitted tenancy agreement, which conclusively proved that regarding possession of rented premises, the relationship between the parties is still that of landlord and tenant.
6. Conversely, learned ASC for the respondent submitted that respondent is not a tenant of the petitioner as she has purchased the rented premises vide sale agreement dated 11.1.2011, and the rent agreement was only executed for a period of six months. Furthermore, he submits that the rent order was passed without framing the issue of relationship of landlady and tenant and it was not based on evidence, as such it had no legal sanctity.
7. We have heard the arguments of the learned ASCs for the petitioners and respondents.
8. From the perusal of material available on record, it is evident that the possession of the rented premise was handed over to the respondent under a written agreement of tenancy executed between the parties on 11.1.2011 for a period of six months and she also paid advance rent for three months to the petitioner. In such circumstances, mere expiry of six months tenancy period has not ipso facto terminated A the relationship of landlord and tenant between the parties, as even after the expiry of such period, respondent's status as regards possession of rented premises remained that of the tenant. As a consequence of this settled legal position, as long as the other agreement of sale was not specifically performed between the parties or enforced through Court proceedings, her status as regards possession of the rented premises remained that of a tenant. The above discussed position, as regards delivery of possession of rented premises to the respondent as tenant, also gains strong support from the contents of the agreement to sell dated 11.1.2011, which on one hand is silent about the delivery of possession to the respondent in part performance of such agreement, and on the other hand contain following stipulations:- "3. That the Vendee is already holding possession of the said property as a tenant and in case Vendee fails to pay the balance payment within stipulated period then the Vendor shall charge Rs,1,00,000/- (Rupees One Lac only) per month rent from the Vendee and the Vendee will vacate the premises and will hand over the possession to the Vendor and if they paid payment within stipulated time no rent will be recovered for six months period from 1.1.2011 to 30.6.2011.
4. That the Vendor shall be liable to pay all dues, debts, claims, taxes, electricity gas and telephone bills and water, conservancy charges, property tax, liabilities, burdens, suits, disputes, objections in respect of the "Said Property" upto the date of handing over the vacant and physical possession of the said property to the Vendee and from the date onwards the same shall be borne by the Vendee."
9. These admitted and undisputed facts completely demolish the defence of the respondent regarding the denial of relationship of landlord and tenant. Moreover, her plea, questioning the execution of tenancy agreement dated 11.L2011 is also belied from the facts that both the agreements were executed on the same date 11.1.2011 and signed by same attesting witnesses. We may observe that it is not a rule of thumb that wherever a person inducted in the rented premises subsequently denies his/her status as tenant, the Rent Controller is bound to first frame point for determination/issue to this effect and decide it before passing a rent order to secure the interest of the landlord during the pendency of such proceedings. More so, as such rent order will be tentative in nature and subject to final adjudication. The Rent Controller was, thus, fully justified in passing the rent order in terms of section 17(8) and consequent order of striking off the defence under section 17(9) of the Cantonments Rent Restriction Act, 1963, due to its admitted non-compliance.
10. Apart from it, we have been informed that a civil suit for specific performance of contract separately filed by the respondent on 07.4.2015, is pending in Court, wherein respondent was directed to deposit the balance sale consideration amount in terms of the admitted agreement to sell, but there too she failed. However, learned ASC for the petitioner explaining her position in this regard submitted that an application for review/modification of order for deposit of balance sale consideration amount has been moved by the petitioner. Be that as it may, in view of admitted facts of the case, as discussed above, and the F legal position, there was no need for the Controller to have first framed the issue of relationship of landlord and tenant, as ordered by the High Court in its impugned judgment. Therefore, the impugned judgment is liable to be set aside.
11. Resultantly, this petition is converted into appeal and allowed, the impugned judgment of the High Court is set aside and that of the Rent Controller is restored. It is, however, made clear that any discussion or observation made in this judgment will not affect the merits of the pending civil suit for specific performance, etc filed by the respondent.