NADEEM AKHTAR, J. The respondent / landlord filed Rent Application No.224/2021 against the petitioner / tenant seeking his eviction on the grounds of personal need and default in payment of monthly rent. Vide order dated 24.11.2021, the application under Section 16(1) of the Sindh Rented Premises Ordinance, 1979, ('the Ordinance') filed by the respondent was allowed by the Rent Controller by directing the petitioner to deposit the arrears of monthly rent as well as future monthly rent in Court. As the petitioner did not comply with the aforesaid tentative rent order, the respondent filed an application under Section 16(2) of the Ordinance which was allowed by the Rent Controller vide order dated 27.01.2022 whereby the defense of the petitioner was struck off and he was directed to vacate the demised premises within forty five (45) days. First Rent Appeal No.08/2021 filed by the petitioner against the aforesaid order of his eviction was dismissed by the learned Model Civil Appellate Court vide judgment dated 14.03.2022. The above concurrent findings of the learned Courts below have been impugned by the petitioner through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
2. It was the case of the respondent in his rent application before the Rent Controller that by virtue of Rent Agreement dated 21.11.2017 ('rent agreement') the petitioner was his tenant in respect of the demised premises described therein in consideration of monthly rent of Rs.45,000.00; the said monthly rent was to be increased in terms of clause 7 of the rent agreement; the petitioner committed default in payment of monthly rent as he paid the rent not only on irregular basis up to December 2020, but also without increasing the same in terms of the rent Agreement; and, no rent was paid by him with effect from January 2021. Regarding his personal need, it was averred by the respondent that the demised premises were required by him in good faith as he had retired from service and wanted to settle in Hyderabad in his own property / demised premises with his family including his two unmarried children.
3. In his written statement, it was contended by the petitioner that the eviction application against him was not maintainable as he had purchased the demised premises from the respondent vide Sale Agreement dated 20.09.2019 (`sale agreement') and had made substantial part payments to him towards sale consideration; the entire sale consideration was to be paid by him to the respondent by 31.12.2020 when the latter was required to complete the sale in his favour; in December 2020, he offered the balance sale consideration to the respondent and requested him to execute the sale deed in his favour, but the respondent did not fulfill his promise ; and, the rent agreement expired on 31.12.2020 whereafter he was not liable to pay any rent to the respondent. In view of the above, the relationship of landlord and tenant between the parties was denied by the petitioner.
4. While allowing the application under Section 16(1) of the Ordinance vide order dated 24.11.2021, the Rent Controller directed the petitioner to deposit the amount of Rs.495,000.00 towards arrears of monthly rent for the period January to October 2021 at the rate of Rs.49,500.00 per month and future monthly rent at the said rate with 10% increase therein per annum till the disposal of the main case. It was held in the aforesaid order by the Rent Controller that the rent agreement and the relationship of landlord and tenant arising therefrom were admitted by the petitioner. It was further held that the ownership and title claimed by the petitioner in relation to the demised premises were yet to be proved and established by him before the competent civil court.
5. As the petitioner did not comply with the aforesaid tentative rent order, his defense was struck off by the Rent Controller vide impugned order dated 27.01.2022 passed on the application filed by the respondent under Section 16(2) of the Ordinance, and he was directed to vacate the demised premises within forty five (45) days. In this order, it was held by the Rent Controller that from the admission made by the petitioner in paragraph 5 of the objections filed by him in response to the respondent's application under Section 16(2), it was established that he had not complied with the tentative rent order dated 24-11-2021. The following said admission of the petitioner was noted and recorded by the Rent Controller in his order dated 27.01.2022: "5. That due to above reason, I have not deposited the monthly rent in this Honourable Court."
6. The appeal filed by the petitioner against the order of his eviction was dismissed by the appellate Court vide impugned judgment dated 14.03.2022. The appellate Court concurred with the findings of the Rene Controller, and further held that under clause 5 of the sale agreement, the petitioner was liable to pay rent to the respondent till the payment of entire sale consideration by hit to the respondent and transfer of title of the demised premises in his favour by the latter; the sale agreement alone, or even if any Suit for its specific performance had been filed by the petitioner, would not entitle him to stop the payment of monthly rent; and, the petitioner was bound to face the consequences of the default committed by him.
7. It is contended by Mr. Ahmed Murtaza A. Arab advocate for the petitioner that the concurrent findings of both the learned Courts below are not sustainable in law or on facts and are liable to be set aside. It is strongly asserted by him that the petitioner was not liable to comply with the tentative rent order, and therefore, his defense could not be struck off and he could not be directed to vacate the demised premises as a consequence of the alleged non-compliance of the tentative rent order by him. No other ground was urged by him in support of this petition. The only justification offered by the counsel for the admitted non-compliance of the tentative rent order is that the petitioner is a bona fide purchaser of the demised premises and he ceased to be the tenant of the respondent after making substantial part payments to him. It is stated by him that the Suit for specific performance of the sale agreement instituted by the petitioner against the respondent is subjudice before the civil court. It was conceded by him that the title of the demised premises was never transferred in favour of the petitioner through a registered instrument, nor has any decree in respect of the title of the demised premises been passed in his favour by the civil court. The contention of the counsel is ill-founded and misconceived and as such cannot be accepted as the same is in direct conflict with the law consistently laid down on this point by the Hon'ble Supreme Court in the following cases: A. In Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101), it was held; inter alia, by the Hon'ble Supreme Court that till the time that. 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; and, ejectment proceedings could not be resisted by taking shelter under Section 53-A of the Transfer of Property Act.
B. In Kassim and another v. 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.
C. In Muhammad Iqbal Haider and another v. Vth 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.
D. In Syed Imran Ahmed v. Bilal and another (PLD 2009 SC 546), it was held, inter alia, that a sale agreement in favour of a tenant does not itself create any interest or even a charge on the property in dispute ; and, till such time that a person suing for ownership of property obtains a decree for specific performance in his favour, he cannot be heard to deny the title of the landlord or to deprive the landlord of any benefits accruing to him or arising out of the said property.
E. In Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320), it was held, inter alia, by the Hon'ble Supreme Court that it is settled law that where in a case filed for eviction of the tenant by the landlord, the tenant takes up a position that he had purchased the property and hence is no more a tenant then he has to vacate the premises and file a Suit for specific performance of the sale agreement and if he succeeds, he would be given easy access to the premises; and, relationship between the parties for purposes of jurisdiction of Rent Controller stood established and by passing tentative rent order, the Rent Controller had carried out summary exercise by deciding such relationship. The order passed by the Rent Controller was maintained by the Hon'ble Supreme Court.
8. It would be seen that it has been consistently held by the Hon'ble Supreme Court that if the tenant asserts that he is no more a tenant as he had purchased the property, even then he has to vacate the property and file a Suit for specific performance of the sale agreement, and he would be entitled to possession of the property in accordance with law only if he succeeds in his Suit. It is also well-settled that till such time the Civil Court passes a decree against the landlord in a Suit for specific performance, landlord would be entitled to recover rent. In the instant case, it is an admitted position that the title of the demised premises is still in the name of the respondent which has not been transferred in the name of the petitioner even up till now. It is also an admitted position that despite the above, compliance of the tentative rent order was not made by the petitioner. Therefore, the Rent Controller had no option, but to strike off his defence in view of the law laid down by the Hon'ble Supreme Court in Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi through legal heirs (PLD 2007 SC 504). In view of the above, the impugned order of eviction passed by the Rent Controller was fully justified and it was rightly upheld by the appellate court.
9. Perusal of the tentative rent order shows that the petitioner was directed to deposit arrears of monthly rent at a specified rate and future monthly rent with 10% increase therein per annum till the disposal of the main case. Though the said 10% increase in rent per annum ordered by the Rent Controller has not been questioned by counsel for the petitioner, I have proceeded to examine the legality and vires of such direction by the Rent Controller. Under subsection (1) of Section 16 of the Ordinance, where a case for eviction of the tenant has been filed, the Rent Controller, on the application filed by the landlord and after such summary inquiry as he deems fit, is required to determine the arrears of rent payable by the tenant and to direct him to deposit the same within the period specified in this behalf; and, to further direct the tenant to deposit the monthly rent regularly on or before the tenth day of every month until final disposal of the case. The words "summary inquiry" used in this subsection are significant as they imply that to pass a tentative rent order under this subsection the Rent Controller is required to examine only the material before him, and not to make any in-depth inquiry. In the present case, the undisputed tenancy agreement and the pleadings of the parties before the Rent Controller were sufficient to draw a tentative conclusion upon a summary inquiry that there was a specific stipulation in the agreement regarding 10% increase in the monthly rent at the time of each renewal.
10. It is well-settled that a tenant becomes a statutory tenant if the agreement between him and the landlord expires, but he still continues to retain the possession of the rented premises even after expiration of the agreement and, in such an event, the rights and obligations of the parties are governed on the same terms and conditions as stipulated in the agreement. It was held by the Hon'ble Supreme Court in Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190) that the terms and conditions of an expired agreement continue in operation to the extent that are not repugnant to the rent law, and the same shall be enforceable whenever it is so required under the law. Similarly, in Abdul Latif and another v. Messrs Parmacie Plus (2019 SCMR 627), the Hon'ble Supreme Court was pleased to hold that where the tenant continues to occupy the tenement after the expiry of the term mentioned in the agreement, covenants of the agreement continue to apply except such covenants that are in conflict with the provisions of the applicable rent law.
11. In Abdul Latif supra a tentative rent order was passed by the Rent Controller under Section 17(8) of The Cantonments Restriction Act, 1963, (`Act of 1963') directing the tenant to deposit the rent with 7% increase therein in terms of the agreement. As the said order was not complied with by the tenant, his defense was struck off by the Rent Controller under Section 17(9) of the Act of 1963 and he was directed to vacate the rented premises within sixty (60) days. The appeal filed by him was allowed by this Court by holding that default had not been constituted as the provisions of Section 7(5) of the Act of 1963 prohibit increase in rent beyond what is determined under the tenancy agreement unless a period of three years has elapsed. It may be noted that in the cited case the tenancy agreement was for a period of eleven (11) months and under the agreement the rent was to be increased by 7% after every eleven (11) months. It was held, inter alia, by the Hon'ble Supreme Court in the above-cited authority that parties are free to agree to a fixed rate of rent or a rate that is variable to be increased either by a certain amount or by a certain percentage of the existing rent after a specified period of time to which there is no prohibition in law ; any periodical increase agreed by the parties under the tenancy agreement element has to be regarded as the rent determined by an agreement between them ; an increase, which is not unilateral but is with the mutual consent of both the parties, cannot be subsequently disputed by the tenant unless it is galled in question through an application made for fixation of fair rent ; only unilateral increase in rent or where fair rent has been fixed by the Rent Controller cannot be increased unless a period of three years has elapsed ; and, if the tenant does not file any application for fixation of fair rent, the consequence of non-payment of the agreed rent within the period prescribed by law would amount to commission of default in payment of rent and would make him liable for eviction. The appeal filed by the landlord was allowed by the Hon'ble Supreme Court by setting aside the order of this Court and maintaining the order of eviction of the tenant passed by the Rent Controller.
12. It would be advantageous to discuss here the provisions of Sections 7, 8 and 9 of the Ordinance briefly as they are relevant to the case at hand. Section 7 provides that no, landlord shall charge or receive rent of the rented premises at the rate higher than that mutually agreed upon by the parties or the fair rent determined by the Rent Controller, as the case may be. Under Section 8, the Rent Controller, on the application of the landlord or the tenant, has the power to determine fair rent of the rented premises after taking into consideration the factors specified in the said Section.
Like Section 7(5) of the Act of 1963, subsection (1) of Section 9 of the Ordinance provides that where the fair rent of any premises has been fixed no further increase therein shall be effected unless a period of three years has elapsed from the date of such fixation. It may be noted that subsection
(2) of Section 9 ibid provides that the increase in rent shall not, in any case, exceed ten percent (10%) per annum on the existing rate. The provisions of Section 9 ibid clearly show that the fair rent determined by the Rent Controller cannot be increased before three years, but in any other case the rent can be increased up to ten percent (10%) per annum as permitted by and envisaged in subsection (2) ibid.
13. The facts of the instant case and those of the above-cited authority are strikingly similar except that the present petition has arisen out of proceedings initiated under the Ordinance, whereas those in the cited authority were initiated under the Act of 1963. In the present case also the rent agreement had a stipulation for increasing the rent periodically; the rent agreement had expired whereafter the petitioner became a statutory tenant of the respondent; the tenant / petitioner had not filed any application before the Rent Controller for fixation of fair rent; and, the Rent Controller had passed a tentative rent order directing the petitioner / tenant to deposit the rent with periodical increase therein as stipulated in the expired agreement.
14. It may be noted that the rent agreement and the stipulations contained therein were not disputed by the petitioner before the Rent Controller. It was not his case that upon expiration of the rent agreement, some other terms and conditions were agreed by the parties. Thus, upon expiration of the rent agreement the status of the petitioner became admittedly that of a statutory tenant and the parties were bound by the terms and conditions of the rent agreement. The above stipulation for a periodical increase in the monthly rent, not being unilateral and or in conflict with any of the provisions of the Ordinance, but in fact being in line with Section 9(2) thereof and the admitted rent agreement, had to be regarded as the rent determined by the rent agreement between the parties and was enforceable as held by the Hon'ble Supreme Court in Abdul Latif supra. Thus, the tentative rent order passed by the Rent Controller was not illegal and or without jurisdiction.
15. Despite admitted non-compliance of the tentative rent order and the well-settled legal position consequent thereto, the petitioner has been persistently resisting not only the proceedings initiated by the respondent due to the former's willful default, but also the lawful orders concurrently passed therein by learned courts below. The impugned concurrent findings are in accord with the law laid down by the Hon'ble Supreme Court. The petitioner has not been able to point out any illegality or infirmity in the concurrent findings of the learned Courts below calling for any interference by this Court under its constitutional jurisdiction. In the above circumstances, the petition, being misconceived and not maintainable, is liable to be dismissed with costs.
16. Foregoing are the reasons of the short order announced on 30.01.2023 whereby this petition and listed application were dismissed with costs of Rs.50,000.00 (Rupees fifty thousand only). The amount of costs shall be deposited by the petitioner / his counsel in the account of the dispensary of this Court within thirty (30) days failing which the matter shall be placed before the Court for further orders.