This is an application filed by the plaintiff seeking an injunction restraining the defendant from evicting her from the premises bearing No.GR-3, Block `A', Sea View Appartments, Clifton, Karachi and also from selling or transferring the same.
2. In the affidavit in support of the application the contents of the plaint have been sought to be treated as part of the application. As such it becomes necessary to examine the plaint in order to determine the factual basis on which the application proceeds.
3. The facts as pleaded in the plaint arc that the plaintiff, since September, 1981, was the tenant of the defendant No.1 in respect of the abovesaid premises. According to her the last payment on account of rent was made on her on 15-6-1986 for the month of July, 1986 and that such payment was received by the defendant No.1 as final payment on account of rent. She has annexed a Photostat copy of such receipt as Annexure A to the plaint but all that the said receipt re--counts is chat a sum of Rs.2,250 is acknowledged as rent for July, 1986 from Mrs. Rana, the plaintiff in this suit.
Be that as it may, the plaint continues to record that in the month of July 1986, as result of negotiations, the defendant No.1 contracted to sell the premises in suit to the plaintiff for a consideration of Rs.4,20,000 and that the plaintiff paid to the defendant No.1 a sum of Rs.10,000 by way of advance and part payment and further that it was agreed between the parties that the balance of Rs.4,10,000 would be paid by the plaintiff to the defendant No.1 before the Registrar at the time of registration. As Annexure `B' the plaint is attached this receipt which stipulates that a cheque of Rs.10,000 was received by the defendant from the plaintiff as advance in consideration of sale of the suit premises for a sale consideration of Rs.4,20,000 and that the balance of Rs.4,10,000 was payable by the purchaser after the formalities were completed. It is the case of the plaintiff that she had been ready and willing to pay the balance price but that it appeared that the defendant No.1 wanted to wriggle out of the contract and as such kept procrastinating the matter.
The plaintiff further, maintains that she became aware of this approach on the part of the defendant No.1 when that defendant commenced ejectment proceedings against her in January, 1988 before the Cantonment Rent Controller, who vide his order, dated 30-6-1988 ordered the plaintiff's ejectment. Reference to January, 1988 seems to be incorrect as in the Ejectment order, dated 30-6-1988, copy whereof has been placed on record pursuant to order of this Court, dated 18-9-1988, the date of the Ejectment Application is shown to be 29-4-1977 and the Rent Case No. Is 42 of 1987. The plaintiff, however, further maintains that after the signing of the contract super receipt, dated 22-7-1986 a new relationship was established between the parties and that the question of payment of any rent in view of the agreed sale did not arise due to such new relationship. The plaintiff adds that her continued possession was in pursuance of the agreement of sale and that her possession, accordingly, is protected. It is also the case of the plaintiff that the defendant No.1 is in collusion with the Pakistan Defence Officers Housing Authority, the defendant No.2 in the suit, and that the defendants in collusion may dispose of the suit property. She further states that during the past few months the values of the property have appreciated and it is for this reason that the defendant No.1 has resiled from the contract. She has, accordingly, prayed for specific performance of the contract, dated 22-7-1986. Plaintiff, in the affidavit filed in support of the Injunction Application, has further pleaded that her possession is protected under section 53-A of the Transfer of Property Act, 1982 and that she has made improvements in the suit property with a view to withstand the vagaries of the sultry weather."
4. All these pleas, in the plaint as well as in the application seeking grant of Injunction, have to be considered in relation to examination of the element of prima facie case in relation to the interim prayer of the plaintiff.
5. In response to the application for injunction the defendant No.1 has submitted his counter- affidavit. The defendant has pleaded that the proposed sale of the premises was negotiated on 22-7-1988 and a sum of Rs.10,000 was paid by the plaintiff to that defendant but, thereafter, the plaintiff did not abide by her commitment in the receipt 22-7-1986 and requested the defendant No.1 for adjustment of the amount of Rs.10,000 as in that receipt, towards the future rent and that the plaintiff further agreed that the rent of the premises shall then onward be Rs.3,000 per month, but the plaintiff did not pay the rents after adjustment of the said sum of Rs.10,000. In these circumstances the defendant No.1 maintains that he was constrained to file an application for ejectment against the plaintiff on the ground of default as also for personal bona fide need. On hearing the parties the Cantonment Rent Controller passed the order of ejectment which order, the parties argued, was confirmed by this Court on 9-10-1988 in F.R.A. 691/88. The defendant No.1 has also maintained that the plaintiff is not protected under section 53-A of the Transfer of Property Act as neither possession was continued in the plaintiff as purchaser nor was the plaintiff exempted from payment of rent till such time as he became the owner of the premises. The defendant No.1 further relies on the following part of deposition of the plaintiff before the Cantonment Rent Controller:-- "It is correct that I have not filed any suit in any Court against the applicant for specific performance to complete formalities of same/(sale) of the case premises because the final decision of the applicant has not been communicated to me."
6. The defendant No.1 has further maintained that the plaintiff had refused to purchase the premises in suit and it was only when the order of ejectment was passed against her that she filed the present suit solely to avoid making payment of about Rs.75,000 which had accumulated towards rent since December, 1986. The defendant No.1 has produced a copy of the cross- examination of the plaintiff in the rent proceedings.
7. In her affidavit in rejoinder the plaintiff has reiterated that she is protected under section 53-A of the Transfer of Property Act and that her continued possession is as the purchaser of the premises and not as tenant. She further maintains that after 22-7-1986, the date of receipt evidencing the agreement to sell, the position was as under:-- "As a matter of fact after the contract, dated 22-7-1986 any talk to (took) place between the parties as there was on contact whatsoever in the matter as suggested by the defendant No.1 except any request and demand no attempt was made by the defendant No.1 to complete the sale. It is submitted that the defendant No.1 kept on promising that he would complete the title to the property and all of a sudden he riled an ejectment application, therefore, the rest of the paragraph is not disputed:"
These are obviously contradictory pleas.
8.The receipt, dated 22-7-1986 whereby the terms of the Sale Agreement are evidenced, Annexure `B' to the plaint, is neither a formal Agreement nor does it even bear due revenue stamp.
Technically it is open to serious question whether it can even be considered. However, at this stage of the suit, it is not desirable to deny hearing to the plaintiff solely on the basis of technicalities. The matter of admissibility of the receipt is, therefore, deferred to the stage of hearing of the suit and following the dictum in the leading case of Perveen Begum v. Mr. Sarwar Khan PLD 1956 Kar. 521 it is tentatively held that k referred receipt as it contains the necessary terms of agreement inter' partes should merit consideration at least for the purposes of the instant application.
9. The broad question in this case, accordingly, is whether in a suit for 1 specific performance, irrespective of every other consideration, an order of ejectment passed against the tenant- proposed purchaser can be stayed.
10. The relationship of landlord and tenant is as such a contractual relationship as the relationship between a seller and purchaser of immovable property.
11. The two relationships may or not be mutually exclusive. Such relationships would converge on a focus where, at the time the agreement of sale is concluded, it is stipulated that the relationship of landlord and tenant, which earlier existed between the parties, shall come to an end with the advent of the agreement of sale or where it is provided that the proposed purchaser shall continue in possession in part performance of the contract of sale and not as tenant or where, as from the date of the agreement of sale, the tenant is expressly absolved from any further payment of rents.
Likewise, the relationship of landlord and tenant would, automatically and without any further act, come to an end on the completion of sale between the erstwhile landlord and tenant. I cannot conceive of any other situation in while the relationship of landlord and tenant would cease merely because the parties entered into an agreement of sale, which would take its own course in maturing as a complete sale and- the resultant divestation of the landlord's interest. On the other hand there is plethora of case law on the point that it is not necessary for a landlord to be the owner of the property and all that is required for such relationship is that one person should induct another into a premises as tenant and that other should undertake to pay rent to him. Similar would be the position in cases of attornment. In these matters even a completed sale by the title holder, on its own force, would not under-cut the landlord-tenant relationship which owed its existence elsewhere than on title.
12. For the foregoing propositions reference may be made to the statutory provisions contained in sections 40, 53-A, 54 and 55 of the Transfer of Property Act, 1882 and the various special Rent Laws applicable in different parts of Pakistan. '
13. Section 53-A of the Transfer of Property Act, which provision is often described as a shield rather than a sword, meaning thereby a weapon of defence rather than of offence, stipulates that where the "transferee ...., being already in possession, continues in possession in part performance' of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract "then notwithstanding non--registratnon or non- completion of the contract the transferor shall not be permitted to enforce any rights against the transferee except such as are relatable to the sale. Section 54 of that Act which, inter alia, deals with a contract of sale provides that such contract "does not, of itself create any interest in or charge on such property." Section 40 of the Act of 1882 postulates that an obligation arising out of the contract and annexed to the ownership of immovable property which does not qualify as an interest therein may be enforced only against a subsequent transferee with notice or a gratuitous transferee but not against one without notice. Recovery of earnest or advance money may be such an obligation. Section: 55 of the Act which deals with rights and liabilities of buyers and sellers provides that, in the absence of a contract to the contrary, "the seller is entitled ....To the rents and profits of the property till the ownership thereof passes to the buyer.
14. It is, inter alia, in the light of the above legal principles that this case has to be judged. The two receipts on which exclusive reliance has been placed in the plaint, photostat copies whereof have been annexed thereto, do not indicate that f the liability of the tenant to pay rent had come to an end. In other words a stipulation to the contrary in terms of S.55 of the Transfer of Property Act did not exist. In fact that plaintiff has made a misstatement in the plaint that the receipt of rent, dated 15-6--1986 indicated "the final payment made on account of rent" (Para. 3 of the plaint). Similary, it is stated in the plaint that the continued possession of the plaintiff owes its sanction under the receipt, dated 22-7-1986 which evidenced the terms of the agreement of sale between the parties.
However, Annexure `B' to the plaint, which is that receipt, is not only completely silent on this point but seems to imply otherwise as there was nothing to preclude the parties from determining the relationship of landlord and tenant from any point of time but they, as normally is the case, preferred to defer that matter upto the date bf completion of sale. In the same context, some observations, though of a tentative nature, are necessary about the conduct of the parties regarding the completion of sale. The plaintiff has taken a contradictory stand maintaining that there was no contact between the parties for finalization of the sale while on the other hand she maintains that she was anxious to complete the same but the defendant No.1 avoided in responding for reasons which are stated to be mala fide. There is no documentary evidence on these points but according to the plaintiff herself, as per paragraph 13 of the plaint, the values of properties have appreciated during the period of past few months but if that were so there would be no reason for non-completion of the sale from July, 1986.
15. In view of the foregoing I am of the view that the plaintiff was not absolved of the payment of rents nor does her continued possession seem to have been in part performance of the contract. It is also doubtful if she was ready and willing to perform her part of the contract. As such she does not appear to qualify for the protection provided by S.53-A of the Transfer of Property Act. If precedent is needed for these propositions reference may be made to (1) Dakshinamurthi Mudaliar and others v. Dhanakoti Ammal (87 I.C. 1925) Ehagwandas Parsadilal v. Surajmal and another (AIR 1961 M.P. 237).
16. An order of injunction is in the nature of an equitable relief and the person who seeks such relief .In equity is also required to do equity and I do not find any material in relation to the application for injunction to justify the grant of such equitable relief as quite evidently the plaintiff has apparently made misstatements and has not even attempted to substantiate her willingness to complete the sale by even a single letter or other cogent circumstance showing her willingness to perform her part of the contract. On the other hand the defendant No.1 has honestly admitted his commitment to sell but has relied on L other factors' for his defence of the case. It is also relevant to note that it is a' requirement of law that the equitable relief of injunction has to be sought promptly but in this case the plaintiff not only waited till the filing of the ejectment application but even allowed herself to suffer the order of eviction itself, which was passed on 30-6-1988, before approaching this Court where the plaint wag' presented on 14-9-1988. This has nothing do with limitation. Promptitude is a sine qua non for seeking equitable relief and that element also governs its grant. In the above circumstances, 'in my view, the delay is sufficient to make it fatal to the grant of an injunction in favour of the plaintiff.
I am therefore, constrained to vacate the order of status quo granted by this Court on 18-9-1988.
18. However, before parting with the case it may be observed that the foregoing observations are relevant only for the disposal of the application for injunction and shall not affect the final disposal of the case for specific performance of the contract which will be determined on examination of evidence F on its own' merits. In the event the plaintiff is evicted persaunt to the orders of eviction passed in relation to the proceedings under the Rent law she would bet entitled to a decree for possession, if, on the final disposal of this suit, she is I granted the relief of specific performance.