MUHAMMAD FAHEEM WALI, J. Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the order dated 16.6.2021, passed by learned Civil Judge-XI/Rent Controller, D.I.Khan, whereby application of respondent No.1 for issuance of directions to the petitioner and respondents 2 to 7 to deposit the monthly rent of the shop in the Court, was accepted.
2. Arguments heard and record perused.
3. The main thrust of the arguments advanced by learned counsel for the petitioner is that father of petitioner namely Haji Muhammad Yousaf had purchased the shop in question from respondent No.1 in lieu of Rs.65,00,000/- vide agreement deed dated 30.10.2019 out of which Rs.35,00,000/- were paid while the remaining amount of Rs.30,00,000/- was agreed to be paid at the time of transfer of the shop.
However, later on the respondent No.1 refused to receive the remaining amount and transfer the suit shop and in this respect suit for specific performance titled "Muhammad Rizwan Vs. Syed Tahir Abbas" is pending before Civil Suit. As the respondent No.1 had "sold" the suit shop to the father of petitioner and he had "purchased" the same from the respondent No.1, there was no relationship of landlord and tenant left between the parties, after purchase agreement of the demised premises that was previously occupied by the father of the petitioner in his capacity as tenant. According to him, the petitioner was not liable to pay any rent after execution of the sale agreement in favour of his father and thus could not be subjected to deposit of the rent, and in such circumstances the acceptance of respondents' application for deposit of monthly rent in the Court was not justified.
4. It is not the case of the petitioner that his father had paid full sale consideration to the respondent No.1 or sale of the demised premises was completed in his favour or the respondent No.1 had actually transferred the demised premises in his favour through a registered instrument. The admitted position that emerges from the above is that title of the demised premises is still in the name of respondent No.1 and it has not been transferred in favour of the petitioner. Therefore, it cannot be said or claimed that the respondent No.1 had sold the demised premises to the father of petitioner or the latter had purchased the same from the respondent No.l.
5. Civil Suit filed by the petitioner forspecific performance of the sale agreement in respect of the demised premises is admittedly subjudice before the learned trial Court. Even the petitioner cannot claim with conviction that he will succeed in his said suit as specific performance cannot be claimed as a matter of right and it is the discretion of the Court to grant or refuse the same which discretion is exercised by the Court keeping in view the facts and circumstances of each case. Accordingly, the petitioner is not entitled in law to claim ownership of the demised premises till a decree to this effect is passed in his favour and such decree attains finality. This being the legal position, mere pendency of the Suit filed by the petitioner for specific performance, will not change the position.
6. In the case of "Haji Jumma Khan V/S Haji Zarin Khan" reported as (PLD 1999 S.C. 1101), the august apex Court held "till the time, the tenant is able to establish his claim for specific performance on the basis of alleged sale agreement, the landlord would continue to enjoy the status of being owner and landlord of the premises, and till such time the relationship between the parties would be regulated by the terms of the tenancy; genuineness or otherwise of alleged sale agreement and its consequential effect will be independently determined by the Civil Court."
7. Similarly, in the case of "Kassim and another V/S S. Rahim Shah" (1990 SCMR 647), the Hon'ble Supreme Court was pleased to hold that:- "till such time the Civil Court passes a decree against the landlord in a suit for specific performance, landlord was entitled to recover rent."
8. Likewise in the case of "Muhammad lqbal Haider and another V/S Rent Controller/Senior Civil Judge, Karachi Central and others" (2009 SCMR 1396), it was held inter alia by the Hon'ble Supreme Court that:- "Article 115 of the Qanun-e-Shahadat lays down that during the continuance of the tenancy, no tenant of immovable property shall be permitted to deny the title of his landlord ; once a person was prima facie shown to be inducted as a tenant of the demised premises, he could not claim any exemption from payment of rent on account of institution of Suits for specific performance and cancellation of sale deed ; the relationship of landlord and tenant is not severed even if the execution of an agreement to sell is admitted ; and, institution of two Civil Suits by the tenant one for specific performance of the agreement and the other for cancellation of sale deed in favour of the landlord, per se would not be sufficient to refuse compliance of an order passed by the Rent Controller under Section 16(1) of SRPO pending final determination."
9. For the afore-stated reasons, the learned counsel representing the petitioner could not point out any illegality or jurisdictional error in the impugned order dated 16.6.2021 calling for interference by this Court, therefore, same is upheld and the instant petition having no merit and substance stands dismissed in limine.