FAHIM AHMED SIDDIQUI, J.---By filing the instant petition, the petitioner has challenged the divergent findings through impugned judgment dated 20-01-2010, passed by the learned Additional District Judge-I, Karachi East in FRA # 124/2009, whereby the appellate court bellow allowed the rent appeal filed by the respondent No,1 and reversed the ejectment order , passed by the learned Rent Controller in favour of the petitioner .
2. It is the case of the petitioner that he had rented out his house bearing ,No, 66-U, Block-6, PECHS, Karachi to the respondent No,1 on the request of her son namely Sher Muhammed for a monthly rent of Rs, 800/- (Rupees eight hundred) only in the month of Janu ary, 1974. After payment of the rent for the month of January-February 1974, the respondent No,1 showed her interest to purchase the said premises for Rs, 90,000/- (Rupees ninety thousand) only. The parties entered into a Sale Agreement dated 16 March, 1974 and she paid an amount of Rs, 65,000/- (Rupees sixty-five thousand) only under the condition that the balance amount of Rs, 25,000/- (Rupees twenty-five thousand) only will be paid after getting the said premises duly leased out and registered before the Sub-Registrar . It was also agreed between the parties that soon after the registration of lease, the petitioner would intimate the respondent No, 1 for enabling her to prepare papers for the execution of Sale-Deed. After registration of Lease-Deed, the petitioner intimated the respondent No, 1 by registered post and delivery of such letter was confirmed by the postmaster but she failed to pay the balance amount of Rs, 25,00 0/-. The petitioner then sent one month notice through final notice/ letter dated 29th November , 1974. By that letter , the petitioner intimated the respondent No,1 that in case of failure to pay the remaining amount, the Sale Agreement already executed between the parties would be cancelled after expiry of one month. As the requisite balance amount was not paid; therefore, the petitioner , in conformity with the conditions of Sale Agreement, cancelled the same and also published a public notice in daily Dawn dated 29th March, 1975.
3. The petitioner accordingly informed respondent No,1 through his registered A/D letter dated 7th May, 1975 about the cancellation of Sale Agreement and also about charging/adjusting Rs,11,600/- towards rent. Thereafter , similar letters were sent by the petitioner giving intimation about adjustment of rent from the earnest money . The delivery of those letters to the respondent No,1 was subsequently confirmed by the Postmaster . Meanwhile, the respondent No, 1 served a Legal Notice dated 21.01. 1976 to the petitioner demanding execution of Sale Deed within 15 days.
The petitioner responded the said legal notice, intimating the counsel for respondent No, 1 regarding those facts, which were concealed by his client and he was informed that the Sale Agreement has already been cancelled and the rent was being deducted from the earnest money . He was also informed that till that date an amount of Rs,18,800/- had already been deducted. Thereafter , the petitioner wrote similar letters/notices, informing about the deduction of rent and the respondent No, 1 also wrote letters demanding execution of Sale Deed, which were accordingly replied. The entire earnest money of Rs, 65,000/- was adjusted towards rent till 23-12-1980, and the respondent No, 1 after adjustment of the entire amount of earnest money neither paid rent nor handed over the possession of the demised premises. Ultimately , the petitioner filed a rent case, which was decided in his favour .
The respondent No, 1 challenged the verdict of the learned Rent Controller by filing a PRA in which the learned Additional District Judge reversed the finding of the learned Rent Controller , as such the petitioner filed the instant petition.
4. The learned counsel for the petitioner submits that the respondent No, 1 firstly inducted in the premises as tenant, and subsequently she entered into a Sale Agreement of the demised premises: According to him, Sale Agreement is an admitted document, which bears a condition that if the remaining amount i,e, Rs, 25,000/- would not be paid then the seller (the petitioner) has a right to cancel the agreement after issuing a registered notice. He submits that as the respondent No, 1 could not fulfil his obligations; therefore after completing the requirement of 'notice', the petitioner cancelled the Sale Agreement. He submits that after cancellation of Sale Agreement, due intimation was given to the respondent No, 1 regarding deduction of rent from the amount of earnest money i,e, Rs, 65,000/- and the said amount was sufficed for deduction of rent up to December , 1980 and such intimation was also given by the petitioner to the respondent No,
1. According to him, as the respondent No, 1 did not pay rent since December 1980; hence she is the defaulter and as such she is liable to be ejected from the premises in question. He submits that all the communications of the petitioner with the respondent No, 1 was well in knowledge of the respondent No, 1 and the petitioner has collected such proof of delivery of those notices/ letters. He submits that the respondent No, 1 filed a Civil Suit No, 782/2005, which was dismissed up to the stage of revision application. According to him, the ejectment order passed by the learned Rent Controller was rightly pronounced and the learned Appellate Court erred in reversing the order of the learned Rent Controller .
5. On the other hand, the learned counsel for the respondent No,1 submits that the contention of the petitioner regarding tenancy is incorrect. According to him, the respondent No, 1 was never a tenant of the petitioner in the premises in question. He draws attention towards the first paragraph of Sale Agreement in which the address of respondent No,1 is mentioned as "K-12, Chawkiwara, Karachi". He submits that if the respondent No, 1 was resident of Chawkiwara at the time of execution of Sale Agreement then how she would be the tenant of the petitioner in the same premises at that time. According to him, as after purchase, possession was handed over; therefore, sale was completed and the petitioner can only file a suit for recovery of the balance amount. He points out that the petitioner has earlier filed a suit but the same was dismissed in non-prosecution and it was not challenged, as such attains finality . He points out that in the earlier suit filed by the petitioner , the fact of rent was not mentioned. The respondent No, 1 in her affidavit-in-evidence denied receipts of rent, as such the onus shifted on the petitioner/ applicant in this respect. He also makes it a great point that why the rent case for ejectment was filed after 16 years. According to him, the respondent No, 1 never admitted her status as tenant and on this point, the findings of learned Rent Controller is incorrect. He submits that it is the duty of the landlord to prove relationship in which the petitioner remained failed, as such the instant petition needs to be dismissed.
6. After hearing the arguments advanced by both the learned members of the bar, I scanned the entire record in the light of valued submissions made by the learned counsel of the parties. In the instant matter , the most important document is the 'Sale Agreement', which is an admitted document. No doubt, it is mentioned in the 'Sale Agreement' that the respondent No, 1 is the resident of Chawkiwara but in the same document, the last paragraph is meaningful, which reads as: "That this agreement replaces the agreement Dated 2.3.1974 between the seller and Mr. Sher Muhammed and the agreement of 2.3.1974 will not be ef fective."
If this portion or an admitted document is read with the contention of the petitioner , that firstly a rem agreement was executed but subsequently it was converted into a Sale Agreement then it becomes clear that agreement dated 02.03.1974 was a rent agreement. Another aspect of the same document is also important, in the second-last paragraph of the said document (Sale Agreement), it is mentioned that in case of cancellation of the said Sale Agreement, a rent of Rs,800/- will be charged. The petitioner in his affidavit-in-evidence described the fact of renting out his house in the following words: "That at the time of letting out my house on rent to the opponent i,e, in the month of January 1974, my house was neither leased out nor registered, but however I intended to get prepared the Rent Agreement in writing on a stamp paper , but in the meantime, opponent in the month of February 1974 showed her interest to purchase my house. I advised her to remain as tenant till I get the house leased out and duly registere d but she insisted to purchase without lease for a sum of Rs, 90,000/-, on the undertaking that she would pay Rs, 65,000/- as earnest money and the balance amount of Rs, 25,000/- would be paid after the. house is duly leased out and registered before Sub- Registrar . Consequently , she entered into a Sale Agreement on 16-03-1974 after payment of rent for the months of January to 15th March 1974."
7. On the point of Sale Agreement, the petitioner was cross-examined before learned Rent Controller by the counsel for the respondent No, 1/opponent. During cross-examination, he remained firm regarding tenancy agreement but he says that the same was not in writing. In cross-examination, he also reasoned out that the address of respondent No, 1 was given by her. According to him, the son of respondent No,1 namely Sher Muhammed brought the Sale Agreement signed by her. In cross-examination the petitioner also admitted that the son of the respondent No,1 obtained the house on rent for her. It is worth mentioning, that it was the same agreement that has been discussed above by reproducing the portion of the said Sale Agreement in which the previous agreement (i,e, rent agreement) was declared to be inef fective.
8. It is my considered view that there is plethora of evidence available on the record, which is supporting that earlier the house in question was obtained; on rent and simultaneously the parties agreed on a transaction of sale by executing a Sale Agreement. The said Sale Agreement is an admitted document and the same is available oil the record, the learned counsel for the respondent No, 1 also relied on the same Sale Agreement while disputing the residence of respondent No, 1 by pointing out her add address mentioned in the said agreement. It is also worth mentioning that in the bottom of the said Sale Agreement, not only the previous agreement (definitely rent agreement) was discussed but it is also mentioned that in case of failure to comply with the conditions mentioned in the said Sale Agreement by the purchaser (respondent No, 1), the seller (petitioner) shall have a right to cancel the Sale Agreement.
9. As far as cancellation of Sale Agreement is concerned, there is series of communications regarding this fact and even the petitioner , in response to a legal notice served upon him, has intimated the respondent No, 1 that the Sale Agreement has already been cancelled. Although, it is not mentioned in the Sale Agreement that the time is the essence of the said agreement but from the contents of the said agreement, it is clear that the time was also the essence of the agreement, according to which the respondent No, 1 has to pay remaining amount i,e, Rs, 25,000/- and got the sale deed executed soon after registration of lease deed of the propert y in question. It is a fact that the petitioner has intimated the respondent No, 1 regarding registration of Lease Deed and also told her to fulfil his obligations as for the conditions laid down in the Sale Agreement. In spite of repeated requests, the respondent failed to response promptly as required within the Sale Agreement. The petitioner ultimately cancelled the Sale Agreement vide his letter/notice dated 29-11-1974 in which respondent No, 1 was again given an opportunity to complete the transaction within one mont h time and even the deadline was also mentioned by indicating that she should perform her part of obligation and complete the sale transaction till 29-11-1974, otherwise the sale transaction would be cancelled. It is also worth mentioning that the said letter/notice was written to the respondent in Urdu language for her proper comprehension. However , after lapse of the time-limit of 29-12-1974, the Sale Agreement was cancelled and such publication was made in a reputed newspaper i,e, the daily Dawn. Thereafter , a series of letters/notices of intimation on the record regarding deduction of rent was the earnest money and the fact of deduction of rent was also communicated to the respondent No,1 when the petitioner responded on the legal notice dated 21-01-1976.
10. The respondent No, 1 has brought on record, a civil suit earlier filed by the petitioner , but the same was dismissed for non-prosecution. The contention of the learned counsel for the respo ndent No, 1 is that as no appeal was filed; therefore, the dismissal order attains finality . He also points out that in the said. suit, the petitioner did not mention about the tenancy . In this respect, my observation is that the dismissal of the earlier suit will not debar the petitioner from initialing rent proceedings. It will also make no difference if in the earlier suit, filed by the petitioner , tenancy was not mentioned because every detail is not required to be discussed in the plaint of especially when no relief was sought on that ground. It is also settled that civil suit does not debar the landlord to initiate a rent proceeding as both have dif ferent scopes in respect of their impact and ef fect.
11. Now, I would like to discuss about the findings of appellate court below . The learned Additional District Judge while allowing the FRA, gives the opinion that the learned Rent Controller has no authority to decide the dispute in respect of title over property . No doubt, it is beyond the scope of the Rent Controller to enter into the dispute pertaining to title and in respect of veracity and effect of a Sale Agreement, as it is the function of a Civil Court and not a Tribunal like Rent Controller . The learned Additional District Judge also observers in the impugned judgment that the learned Rent Controller should have to direct the parties to get the question of title decided by the competent Civil Court rather than passing order of ejectment. I am of the view that such observation of the learned Additional District Judge is contrary to law and it is not the responsibility of learned Rent Controller to give such advice or direction to the parties. As far as the contention of the learned counsel for the respondent No, 1 in respect of relationship of landlord and tenant is concerned, I am of the view that such arguments are not helpful for the respondent No, 1 according to law laid down by the honourable Supreme Court in the case reported as Rehmatullah v . Ali Muhammad and another (1983 SCMR 1064 ).
12. Although, the respondent No, 1 has filed a civil suit for the specific performance of the contract but the same did not debar the petitioner from proceeding s before learned Rent Controller . Beside s, the civil suit bearing number 782/2005, filed by the respondent No,1 was dismissed vide order dated 27.11.2006 and an appeal against the said dismissal order being Civil Appeal No, 06/2007 was also dismissed vide order 20-01-2009 and the revision petition against the said dismissal order of civil appeal was also dismissed in 2009 in non-prosecution. No doubt, presently no civil proceeding is pending pertaining to the property in question. Even it civil proceeding was pending, it would make no difference. It is now settled that merely pendency of a civil suit does not change the status of a tenant and as long as his status remains as tenant, he will be dealt with accordin gly. On the pretext of a dispute regarding relationship of landlord and tenant and even because of pendency of a civil suit, the respondent cannot claim continuity of his possession of the rented premises. In this respect, reliance may be taken from the case reported as Barkat Masih v. Manzoor Ahmed (deceased) through L.Rs, (2006 SCMR 1068 ), in which their lordships held as: "Even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in-question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences."
13. Another aspect of the case is considerable; the respondent No,1 is in possessi on of the property in question. It is her claim that she never be the tenant of the petitioner and the Sale Agreement on which she relies for her possession, was already cancelled by the petitioner . The petitioner claims that the respondent No, 1 is his tenant and he had already intimated her through series of letters/ notices about deduction of rent. The respondent No, 1 filed a civil suit but the same was dismissed up-to the stage of revision petition. The title of the property is still in the name of the petitioner , in such a situation a simple denial of tenancy from her side will be meaningless. In this respect, I fortify my view from a case reported as Muhammad Anwar v. Mst. Nafeesa Begum PLD 1981 Karachi 85).
14. It is a settled legal position that a tenant shall remain be a tenant and even if he enters into a Sale Agreement regarding the same property , and he considers that he has any right over the said property because of the said agreement, he cannot continue his poss ession over the property on the basis of the said Sale Agreement. It is necessary for him to vacate the premises, and comply the ejectment order and continue his struggle to establish his right before the competent Civil Court. In this respect a case of the Honoura ble Supreme Court reported as Abdul Rasheed v . Maqbool Ahmed and others (2011 SCMR 320 ), it is held as: "It is settled law that where in a case of eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacat e the property and file a suit for specific performance of the sale agreeme nt where after he would be given easy access to the premises in case he prevails. In this regard reference, can be made to Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012 ) and Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877). In so far as determination of the relationship of landlord and tenant is concerned, such enquiry by the Rent Controller is of a summary nature.
Undoubtedly the premises were taken by the petitioner on rent from the respondent and according to the former he later on purchased the same which was denied by the latter . Consequently , the relationship in so far as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller ."
14. In view of the above discussion, it is held that the impugned order passed by the lower appellate forum is contrary to the settled legal norms and principles, as such the same is not sustainable, hence the impugned order is set aside and the findings of the learned Rent Controller is restored. Resultantly , the instant constitutional petition is allowed.