' Through this FA.O. Sameer Ehsan Ullah Makhzan and two others, appellants have challenged the order of dismissal of stay application filed by them in a title suit passed by the learned Civil Judge, Lahore, vide order dated 3-6-1992.
2. Briefly stated facts of the case are that the appellants filed a suit seeking a declaration to the effect that they are owners of land measuring 15 Marlas and 200 Sq. Ft. Out of Plot No,10 alongwith the two constructed rooms, kitchen, bath room, store-room, etc. a portion of property No,S.E.-14-R- 7, bearing Khasra No,4345/3 situate at Qilla Gujjar Singh, Lahore. By way of consequential relief a decree for possession has also been claimed. Relief of recission of agreement for sale and the cancellation of the lease-deed in favour of respondent No,2 has also been prayed for in the suit.
Alongwith the plaint, an application under Order XXXIX, Rule 1, C.P.C. Has also been moved wherein a prayer has been made that the respondents may be restrained to continue the constructions on the premises and to change the nature of the property and to use the same for residential of common purposes till the decision of the suit. The suit as well as the stay application is being contested by the respondents, who have taken the stand that the plaintiffs-appellants have no prima facie case in their favour and that they have already received an amount of Rs, 39 Lacs from respondent No,1 on account of the sale price of the suit property and possession of the property has been delivered by the plaintiffs-appellants themselves, therefore, they have absolutely no case for grant of stay order. It is further stated in the reply to the stay application that respondent No,2 is a lessee of the suit property and he has raised construction on the said property prior to the institution of the suit and using the same, therefore, the application for grant of temporary injunction is liable to be dismissed.
2. Learned trial Court vide order dated 3-6-1992 dismissed the stay application as according to the learned trial Court, respondent No,2 was admittedly in possession of, the disputed property, hence interim injunction restraining him to use the property as an Adda of Flying Coach and Buses cannot be granted. It has been held by the learned Civil Judge that the balance of inconvenience lies in favour of respondent No,2 and as admittedly the plaintiffs have received considerable part of the total sale price, they have no case for grant of stay order. Learned trial Court directed that the respondent No,2 shall be bound to pay the rent in terms of the impugned lease-agreement in accordance with law to the landlord/owners, it shall be deposited in Court before 15 days each succeeding month w,e,f, July, 1992. It has further been directed that the deposited amount shall not be withdrawn by the landlords/owners till the final disposal of the suit. This order has been challenged by the appellants in this appeal.
3. Mr. Muhammad Aslam Sindhu, learned counsel for the appellants has argued that the learned trial Court has exercised discretion illegally and with a material irregularity. According to the learned counsel lease-deed in favour of respondents executed by the petitioners required registration and as the same is unregistered and as the original term thereof stands expired, the same has become void, and consequently possession of respondent No,2 is rendered illegal and hence could not have formed a basis for dismissal of the stay application. Learned counsel relied upon section 107 of the Transfer of Property Act as well as the provisions of section 17 read with section 49 of the Registration Act. Learned counsel has also relied upon Habib Bank Ltd. v. Dr. Munawar Ali Siddiqui (1991 SCM R 1185), for the above proposition propounded by him. Learned counsel further argued that it is in fact respondent No,2 whose possession has been protected vide impugned order, and, therefore, the order passed by the learned Civil Judge is not lawful. When confronted with the proposition that lease agreement was for a period of eleven months, therefore, it did not require registration, learned counsel concedes this legal proposition but insists that as the oiginal term of lease agreement has expired, it has become void. He however, concedes that possession of a person who enters into certain property as a tenant-lessee and term thereof expires, the status of that person shall remain as that of a lessee-tenant and that the terms of the previous agreement shall continue to govern the lease-tenancy so far as it relates to the payment of rent, but tenancy shall become month to month. Learned counsel, however, argued that the plaintiffs-appellants intends to file ejectment proceedings against respondent No,2, and, the impugned order will stand in their way and therefore, the same is not lawful. Learned counsel for the respondents have vehemently controverted the argument of the learned counsel for the petitioners and have supported the impuged order.
4. I have considered the arguments addressed by the learned counsel and also gone through the record of the case. Admittedly, the respondent No,2 is in possession of property in dispute. He has also raised construction and parties admit even today that he is using that place as an Adda. The suit property is also in his possession. Consequently, if a person is admitted to be in possession of the property, the user thereof cannot be estopped through an interim injunction. They are claiming possession of the vacant plot and as admittedly respondent No,2 entered the premises as a lessee-tenant, it cannot be said that the learned trial Court has committed an illegality by refusing stay order against user of the premises by the respondent No,2. Argument of the learned counsel to the effect that as the lease-agreement has become void due to the expiry of lease period, is also misconceived. After the expiry of the lease period, if the relationship between the parties is governed by the Transfer of Property Act, the lessee shall be deemed to be a lessee holding over, whereas in case of tenancy governed under the Urban Rent Restriction Ordinance, the tenant shall be deemed to be holding the property as a tenant from month to month. Basic status of the occupant therefore does not change by the expiry of the term of the original lease and therefore unless and until a lessee-tenant is ejected in accordance with law, there is no lawful- justification to restrain him from utilizing the property in question. Argument of the learned counsel to the effect that the order for dismissal of the stay application will stand in the way of ejectment petition which may be filed by the appellants is firstly premature and secondly is misconceived. In case, an ejectment petition is filed by the appellants against the respondent No,2 that will have to be decided in accordance with law by the forum where proceedings are filed. This aspect is not the subject-matter either before the trial Court or before this Court and therefore, it is not necessary to render any findings on this issue. Consequently, I see no legal infirmity in the judgment rendered by the trial Court. Resultantly, this F.A.O. Is dismissed. However, Mr. Ahmad Waheed Khan, Advocate assisted by Muhammad Zahid Abbasi, learned counsel for the respondents have no objection if a direction is issued to the trial Court to decide the suit within three months w,e,f, the receipt of the order of this Court. Hence it is directed that the suit shall be decided by the trial Court within three months with effect from the date, the order of this Court is received by him. Copy of the order shall be immediately sent to the trial Court. Parties to bear their own costs.