SHUJAAT ALI KHAN, J.---Unnecessary details apart, respondents Nos.3 and 4 filed Ejectment Petition against the petitioner wherein respondents Nos.5 to 9 were impleaded as proforma respondents.
Upon service of notice the petitioner entered appearance and MO application seeking leave to contest. The learned Special Judge (Rent), Lahore through order, dated 09.05.2019, while dismissing the application seeking leave to contest ordered for eviction of the petitioner and framed Issues relating to rate of the rent. Aggrieved by the order passed by learned Special Judge (Rent), the petitioner filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Lahore (learned Appellate Court) vide judgment, dated 15.10.2019; hence this petition.
2. Learned counsel for the petitioner submit that though evidence of the parties was not recorded but the learned Special Judge (Rent) has referred to certain documents while portraying them as admitted between the parties; that out of seven legal heirs of Mst. Naseem Akhtar only two filed Ejectment Petition which speaks volumes about their mala fide conduct; that during pendency of suit for partition amongst the legal heirs the Ejectment Petition was not maintainable; that the factum of execution of agreements to sell by Mst. Naseem Akhtar in favour of the petitioner against a valid consideration could not be decided without recording evidence of the parties; that when the first agreement was substituted with the new one the terms and conditions of sale were to be governed under the later one; that according to the subsequent agreement to sell executed by Mst. Naseem Akhtar in favour of the petitioner in the year 2014 there was no mention regarding payment of rent by the petitioner simply for the reason that he was enjoying possession as co- owner; that non-judicial approach on the part of the courts below is evident from the fact that the case-law, referred in their decisions, is inapplicable to the facts and circumstances of the present case and that impleadment of the petitioner as defendant in the suit for possession through partition stands proof of the fact that the respondents admitted him to be co-owner. Relies on United Bank Limited Sahiwal through its Attorney v. Messrs Aziz Tanneries (Pvt.) Ltd. through its Chief Executive/MD and others 2004 CLD 1715.
3. Conversely, learned counsel representing the respondents, while defending the impugned decisions of the courts below, submits that since the petitioner entered the premises as tenant in the year 1998, without surrendering its possession to the landlord, his status did not change as owner; that according to section 10 of the Punjab Rented Premises Act, 2009 (the Act, 2009) if parties, during currency of tenancy, opt to enter into an agreement to sell or any other agreement they are supposed to firstly end their relationship of landlord and tenant while appearing before the Rent Registrar and then execute any other agreement; that since the facts referred by the courts below in their decisions are based on the documents annexed by the petitioner along with his application seeking leave to contest, his assertion that the courts below have referred to the documents which were not brought on record by recording evidence, is not worth consideration; that the petitioner was arrayed as party in the suit for possession through partition merely due to the reason that respondents Nos.3 and 4 apprehended payment of rent by the petitioner to the other legal heirs to their exclusion; that even in the said suit respondents Nos.3 and 4 prayed for issuance of a direction to the petitioner for payment of rent of his share; that mala fide on the part of the petitioner is evident from the fact that though he filed power of attorney in the suit filed by respondents Nos.3 and 4 two days after its institution but did not file written statement till the time he managed two forged agreement on the basis whereof he filed suit for specific performance; that when respondents Nos.3 and 4 filed suit for possession through partition, on 06.07.2018 the filing of suit for specific performance by the petitioner was just a counterblast; that since the respondents attached the judgment passed by this Court in R.F.A. No. 273/2007 with the Ejectment Petition the findings of learned Appellate Court cannot be considered against the record; that when the petitioner admitted in his application seeking leave to contest that he only paid rent upto the month of June, 2018, he fell within the category of defaulter; that the receipts referred in the decisions of the courts below were produced by the petitioner at the time of final arguments to show that the outstanding rent was paid but the deposit of defaulted amount in the month of January, 2019 could not be used to condone the lapse on the part of the petitioner towards payment of rent of each month within prescribed period; that since January, 2019 the petitioner has been paying monthly rent at the rate of Rs.5,00,000/- per month which fact negates his stance that he is possessing some portion of the rented premises as landlord and that since all the legal heirs of Mst. Naseem Akhtar were arrayed as party in the Ejectment Petition, the assertion of the petitioner that the same was only filed by respondents Nos.3 and 4 is against the record. Relies on Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45), Kabir Ahmad v. The Additional District Judge, Lahore and another (2018 CLC 161), JDW Sugar Mills -Ltd. and others v.
Province of Punjab and others (PLD 2017 Lahore 68), Messrs Shaikh Naveed Ikhlas and 2 others v.
Shaikh Abdul Hafeez and 6 others (2017 CLC 1278), Abdul Ghafoor v. Additional District Judge and others (2015 CLC 229), Muhammad Asif v. Amina Bibi and others (2014 MLD 1084), Haji Muhammad Saeed v. Additional District Judge (2012 MLD 108) and Qamar-ud-Din v. Abdul Latif and others (PLJ 2009 Lahore 791).
4. While exercising their right of rebuttal, learned counsel for the petitioner contend that section 10 of the Act, 2009 is only applicable where tenancy between the parties is in writing; that the case- law, referred by learned counsel for the respondents is inapplicable for the reason that in all the referred cases the tenancy between the parties was admitted one whereas in the instant case the petitioner has denied his possession over the rented premises as tenant; that since the petitioner paid certain amount through cross-cheques, the assertion of the respondents that he paid lacs of rupees in cash to Mst. Naseem Akhtar is not worth reliance and that the store owned by the petitioner comprises of many contiguous buildings, thus, without determining due share of the parties, respondents Nos.3 and 4 could not claim anything from him.
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition as well as the case-law, cited at the bar.
6. Firstly taking up the objection raised by the learned counsel for the petitioner that the documents which were not either before the learned Special Judge (Rent) or before the learned Appellate Court were discussed by the said fora, thus, their decisions fall within the category of laboured pronouncements, I am of the view that the assertion of the respondents that the documents referred by the courts below in favour of their decisions were either part of either the. Ejectment Petition or the application seeking leave to contest, was not specifically repelled by the learned counsel for the petitioner, thus, the said objection is spurned accordingly.
7. The petitioner, in Para No.8 under the heading of "Additional Facts", of his application seeking leave to contest referred to certain facts whereby he admitted that till the month of May, 2018 (for the month of June, 2018) he had been paying monthly rent/mesne profit to Mst. Naseem Akhtar notwithstanding any agreement either executed in the year 2011 or 2014. To fortify said fact a reference be made to the following paragraph from the application seeking leave to contest.
"8. That the present petitioner approached the alleged landlords/ petitioners and other respondents with the help of his friends at U.S.A. England and Pakistan, with requested to execute registered sale deed and transfer the suit property in favour of the present petitioner in the light of agreements dated 12.10.2011 and 06.11.2014, but they refused to accept the same. It is pertinent to mention here that the present petitioner has been paying mesne profit/rent @ of Rs.5,00,000/- P.M. to their mother till May 2018 (for the month of June 2018), for the portion of the suit property which was not purchased by him. Later on the petitioners and the respondents Nos. 2 to 6 demanded mesne profit/rent, without receipt, but the present petitioner refused to pay total amount to any one without the written permission of other co-sharer, therefore the alleged landlords/ petitioners became annoyed. The present petitioner filed a suit for specific performance and as a counterblast the alleged landlords / petitioners filed instant ejectment petition, which is liable to be dismissed in the light of the facts mentioned above."
8. During the course of arguments, learned counsel for the petitioner has referred to subsequent agreements to sell purportedly executed by legal heirs of private respondents in favour of the petitioner to establish that in the said document Mst. Naseem Akhtar covenanted that possession of the property, subject matter of said agreement, was already with the petitioner. In my humble opinion the said fact alone cannot be used to accept that tenancy between the parties came to an end mere due to execution of agreement to sell especially when the petitioner admitted that he had been paying rent/mesne profit to predecessor-in-interest of the private respondents till May, 2018 despite the fact that second agreement was purportedly executed in the year 2014.
9. A cursory glance over the plaint of the suit filed by respondents Nos.3 and 4 for possession through partition shows that they while dubbing the petitioner to be a tenant only prayed for a direction that till the determination of share of each co-sharer he be restrained to pay monthly rent. Moreover, the said suit was filed on 11.10.2018 wherein it was clarified that the petitioner had not been paying monthly rent since the month of July, 2018. Though the petitioner joined proceeding of the said suit by filing power of attorney of a counsel but did not opt to file written statement till filing of suit for specific performance on 11.10.2018 as the written statement was filed by him on the next day i.e. 12.10.2018. Had there been any valid document in his favour, the petitioner could disclose the same before the said forum on his first day of appearance. Section 10 of the Act, 2009 deals with a situation where parties opt to enter into another agreement during currency of the tenancy. A cursory glance over the agreements to sell purportedly executed in favour of the petitioner shows that in none of them it has been clarified that tenancy between the parties came to an end.
Moreover, in view of the admission in his application seeking leave to contest the that he had been paying rent to Mst. Naseem Akhtar till May, 2018 no contra opinion can be formed.
10. As far as the plea of the petitioner regarding filing of Ejectment Petition by respondent Nos.3 and 4 to the exclusion of other legal of Mst. Naseem Akhtar, is concerned, suffice it to note that firstly the said fact hardly carries any weight for the reason that while filing Ejectment Petition respondents Nos.3 and 4 arrayed the other legal heirs as proforma respondents. Secondly, even one of the legal heirs of deceased landlord can file Ejectment Petition in the light of the law laid down by Hon'ble Supreme Court of Pakistan in the case reported as Anwar Khan v. Abdul Manaf (2004 SCMR 126) wherein while dealing almost similar situation, it has inter-alia been held as under: - ".......... It is worth mentioning here at this juncture the question of title has no relevancy in the proceedings in rent case as the pivotal point needs determination would be the relationship of landlord and tenant which would be the only determining factor because a tenant has absolutely no legal right to raise any objection regarding the partition of property or the manner in which it was so made as it would have no substantial effect on the factum of his tenancy and his status would remain as tenant...."
11. Now coming to the execution of agreements to sell by Mst. Naseem Akhtar and filing of suit by the petitioner on the basis thereof, it is of the view that it is well entrenched by now that mere execution of an agreement to sell does not create any vested right or title in favour of a vendee except to provide him cause of action to sue against the vendor. Reliance in this regard can be placed on the cases reported as Muhammad Ibrahim and 44 others v. Fateh Ali and 30 others (2005 SCMR 1061) a Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089). In this background, mere execution of purported agreements to late Mst. Naseem Akhtar and filing of suit by the petitioner on the basis thereof cannot be used as a tool to halt the proceedings in the Ejectment Petition.
12. There is no cavil with the proposition that if the petitioner succeeds in his suit seeking specific performance of agreements to sell he would be entitled to all ancillary benefits but the said fact cannot be used to interfere in the findings of the fora below.
13. For what has been discussed above. I see no force in this petition which is hereby dismissed with no order as to costs.
14. Since the petitioner is running a departmental store in the rented premises with a view to enable him to arrange for alternate premises, he is granted four months time from today to vacate the rented premises, subject to payment of rent for the said period, failing which law would take its own course.