1. This second rent appeal was against a decision of lower appellate Court dated 3-5-1994 affirming that of the Rent Controller dated 6-3-1994, which in turn had directed ejectment of the appellate from the shop in question after finding preliminary issue on tenancy relationship in affirmative.
2. Relevant facts giving rise to the second appeal were briefly these: A shop in Anarkali Bazar, Nankana Sahib belonged to Muhammad Nazir. Appellant was in its possession as tenant of the aforesaid owner and paid him the rent. On 14-1-1992, former owner sold the shop to Muhammad Afzal respondent for a sum of rupees two lac, vide a registered deed of even date. Sale-deed was implemented in revenue papers by attestation of Mutation No.2386 on 30-6-1992. Thus, the relationship of landlord and tenant existed ' between the parties. Appellant paid the rent to the respondent for sometime and, thereafter was shown to have defaulted in it.
3. On 5-1-1993, respondent through his father acting as his attorney instituted a petition for eviction of the appellant from the shop in question on the grounds of rent-default and his bona fide personal requirement of it for setting up of his personal business in it. Appellant submitted his defence statement. He repudiated the tenancy and asserted that the respondent through his father had agreed for the sale of the shop to him for the sale price of Rs.3,25,000 and received two lac rupees in advance through a deed in writing. It was further agreed that from the date of agreement, appellant shall not pay the monthly rent to the respondent and hold the shop under agreement to sell only. Rent Controller settled a preliminary issue for resolution of the dispute about tenancy between the parties. Thereupon, it took evidence from them. On behalf of respondent, his father and general attorney namely Muhammad Mushtaq appeared as A.W.1 and gave evidence. He was supported by a witness. Furthermore, a few documents were put in evidence by him. In rebuttal, appellant himself entered the witness-box and recorded his own statement. His further evidence was closed by the Rent Controller, on 14-12-1993 by a separate order written in English. Upon scrutiny of record, Rent Controller found that relationship of landlord and tenant subsisted between the parties and since there was no dispute about rent default, further inquiry was unnecessary and consequently, directed ejectment of the appellant from the shop and gave him two weeks to vacate it. Appeal preferred from his decision failed in the Court below. Thereupon, this second appeal was instituted in this Court.
4. On the basis of alleged agreement for sale of the shop, appellant instituted a civil suit for completion of the sale of the shop in his favour, on 19-11-1994. Since required court-fee was not paid on the plaint, the trial Court called upon the appellant to meet the deficiency by a specified date. Appellant failed to deposit the court-fee stamps in Court in time, though, the necessary amount for purchase of court-fee stamps was already deposited by him in the treasury. In consequence of default, plaint in the suit was rejected on 14-2-1994. Appellant instituted a second suit for specific performance of agreement to sell in his favour on 24-2-1994. Respondent has submitted his written statement. Further stage in the suit was not known. It may be observed that marginal witnesses to the deed of agreement and its scribe could not be; produced in evidence by the appellant as Rent Controller had closed his; defence. Agreement to sell the shop was put under Mark-A only. On the basis of the recorded material, agreement to sell could not be held proved in the ejectment case. But for proof of agreement to sell, there could be no serious dispute about existence of tenancy relationship between the parties and liability to pay rent in respect of it. As said above, agreement to sell was not proved on present record. Learned counsel for the appellant pointed out certain portions in the judgment of the lower appellate Court which in his opinion were either product of gross misreading of record or an omission of correctly reading it. The criticism may have some substance but for purposes of decision of this appeal shall not have any material bearing because I have myself looked into the existing record and examined it thoroughly as if it was a case of first appeal. My own view of it was that agreement to sell was not properly proved in evidence of the appellant. He failed to produce necessary evidence for proving its execution by the attorney of the respondent. Neither the scribe nor the marginal witnesses were produced by him.
5. Enough time was given to the appellant for production of his defence evidence. He unnecessarily delayed production of his defence and the Rent Controller rightly put his foot down on his delaying tactics. Therefore, there was little justification for up-setting the order of the Rent Controller closing evidence of the appellant. If that was so, there was yet little less justification for finding fault with the conclusion in the impugned judgments of the lower Courts. Except for a little error here or there in the judgment of the lower appellate Court, the conclusions arrived at by both the Courts below were substantially firm and correct. In this view, learned counsel could not successfully assert against the correctness of the impugned judgment, and, in terms of the decision in Aleem-ud-Din and another v. Muhammad Aslam and 2 others 1991 SCM R 850 merely sought time for protection of possession from the trial Court seized of the trial of the suit for specific performance instituted by the appellant. There was no doubt that final judgment in the suit for specific performance of alleged agreement to sell rested with the Civil Court and the observations made in the impugned judgments by the Rent Controller as well as Additional District Judge in appeal shall not influence it in its final decision of the civil suit before it. As far - protection of possession of the appellant on the shop in question after passing of eviction orders in the competent forums, the trial Court shall be free to decide on merits in accordance with law. The judgment relied upon shall be available for its assistance. Equally, the judgment of the Supreme Court in Allah Yar and others v. Additional District Judge and others 1984 SCM R 741 shall provide a helpful reading by it. In this view, the finding recorded on preliminary issue and the order for eviction made on its basis were not open to any serious exception.
6. As the result of the above, second appeal is dismissed in limine. Appellant is allowed two weeks' time to approach the Civil Court for interim protection of his possession on the shop in question.
7. Meanwhile, he shall not be disturbed in his possession of the shop. This shall be subject to payment of due rent.