' Petitioner Muhammad Siddique has filed this writ petition against the order dated 17-10-1991 of the Additional District Judge, Lahore by which he remanded the case of ejectment of the disputed property to the learned Rent Controller.
2. Petitioner filed an ejectment petition against the respondent in respect of the Property No,NE-113- R-2, Rahim Road, Misri Shah, Lahore on the ground of default from the month of September 1989 to November 1989. The respondent resisted that application and filed a written statement on 6-5- 1990 with a preliminary obection denying relationship of landlord and tenant between the parties and also on the ground that there was an agreement to sell of the property in favour of the respondent.
3. Petitioner examined A.W.1 Allah Baldish, A.W.2 Khuda Dad and A.W.3 Muhammad Saddique as his own witness. Respondent examined R.W.1 Abdul Wahid and R.W.2 Muhammad Ishaq as his own witness. The following issues were framed on 6-5-1990:
(1) Whether the relationship of landlord and tenant exists between the parties? OPA
(2) Order.
4. Learned Rent Controller vide his order dated 8-7-1991, after discussing the oral and documentary evidence on the record, granted the application of petitioner on the ground that the respondent cannot approbate and reprobate. He specifically held that where default is pleaded by the landlord the tenant cannot be permitted to plead payment of rent in case the relationship is denied by the tenant.
5. Appeal was filed against the order of Rent Controller and learned Additional District Judge vide his order dated 17-10-1991 maintained the finding of the Rent Controller on the only issue of relationship but remanded the case. He however observed that the Rent Controller was not legally justified in forfeiting the tenancy of the respondent on the facts and circumstances of the case. It appears that he was mainly influenced by the plea of respondent regarding agreement to sell, of the disputed property, in his favour by the petitioner.
6. Learned counsel for the petitioner Mr. Ghulam Mahmood Qureshi vehemently contends that once the relationship of landlord and tenant is denied, the tenant cannot be permitted to plead any defence in the default and there is no option for the Rent Controller but to forfeit the tenancy and consequently to pass the ejectment order which has been done in this case and that the order of Appellate Court remanding the case is not sustainable in the eye of law.
7. The legal proposition canvassed by the learned counsel for the petitioner is well-settled in (PLD 1991 SC 242) "Iqbal and 6 others v. Mst. Rabia Bibi and another", (PLD 1992 SC 401) "Madrissa Darul Uloom AlBaqiat-ul-Salehat Registered v. The Additional District Judge (Appellate Court)", (1988 SCM R 1449) "Mst. Fatima v. Abdul Razzaq", (1987 CLC 352) "Muhammad Saddique v. Anjumane Taheiri Saddar Jamaat Committee", (1987 CLC 1638) "Fazal Ahmad Khan Saleemi v. MRs, Anwar Iqbal" and (1989 M LD 4240) "Muhammad Khalid v. Mansoor Hafiz".
8. Learned counsel for the respondent submits that petitioner' has executed an agreement to sell in favour of the respondent as to the disputed property and a civil suit for the specific performance of the contract is pending in the Civil Court and in these circumstances there was no legal justification for the Rent Controller to pass the ejectment order and that his order was rightly set aside by the Appellate Court and the case remanded. Reliance is placed on (1983 SCM R 1064)
"Rahmat Ullah v. Ali Muhammad and another" in support of the proposition canvassed by the learned counsel for the respondent.
' The facts of the precedent case are not helpful to the respondent as in this case the tenant pleaded that sale-deed and rent note relied upon by the landlord were fictitious, forged and fabricated and Rent Controller concluded that the relationship of landlord and tenant was not established and as such dismissed the ejectment application. The landlord went in appeal which was allowed by the Additional District Judge but he observed at the same time that the tenant, if so advised, might file civil suit for the cancellation of sale-deed and rent note. It was held on the facts of the cited case that it is not correct that even if a landlord fails to establish the relationship of landlord and tenant beyond reasonable doubt, he would still be allowed the benefit of affirmative finding on this issue. Section 13 of the Rent Restriction Ordinance lays down that if the Rent Controller after affording reasonable opportunities to the tenant "is satisfied" that one or the other conditions have been fulfilled he is liable to be evicted. This clearly shows that the finding o 'act is to be reached after complete satisfaction and that too as a result of opportunity having been afforded to the parties concerned to the satisfaction of the Rent Controller by one way or the other.
9. In the present case the rent note Exh.A1 is admitted to be correct by the tenant and after recording the evidence learned Rent Controller passed the ejectment order on the ground that relationship of landlord and tenant existed between the parties. This finding of fact is affirmed by the Appellate Court and despite that the case has been remanded ostensibly on the ground that the agreement to sell as to the disputed property was pleaded by the tenant.
10. On the aforementioned consideration learned Additional District Judge could not have remanded the case because the agreement to sell does not create any right whatsoever in favour of the tenant unless a decree is passed and the sale-deed executed. There was enough evidence for the Rent Controller to hold the relationship of landlord and tenant in favour of the parties after hearing them and he did not commit any legal error in forfeiting the tenancy and consequently passing the ejectment order.
11. On the facts and circumstances of the case and law laid down, as above, and particularly when the agreement to sell is denied by the landlord, Appellate Court could not have remanded the case on the ground that there was an agreement to sell in favour of the tenant.
12. There is another aspect of the case which cannot go unnoticed. The petitioner-landlord recorded his statement as A.W.3 and admitted in the cross-examination that he will pay a sum of Rs,1,00,000 to the respondent-tenant, the cost of the superstructure, at the time of ejectment of the disputed property. When confronted, learned counsel for the petitioner frankly conceded to pay a sum of Rs,1,00,000 to the respondent which the latter refused to receive at the time of arguments.
13. In view of above this writ petition is accepted and the order of Appellate Court is set aside and that of the Rent Controller restored. The petitioner will, however, deposit a sum of Rs,1,00,000 within a month with the Rent Controller to be paid to the respondent and thereafter execution proceedings for the ejectment will be made.
' There is no order as to costs.