1. The sole point for consideration in this appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter called the Ordinance) is whether the learned Rent Controller was justified in refusing the ejectment of the respondent tenant from the demised premises on the ground that a suit for specific performance filed by the latter was sub judice before a Court of Law.
2. Appellant being the landlord of the premises known as Quarter No. 2/38 situated in Liaquatabad, Karachi rented out half of the portion of the premises to the respondent on a monthly rent of Rs. 100 by way of an oral agreement. The tenancy commenced w.e.f. 6-2-1974. On the failure of the respondent to pay monthly rent from June, 1974 to June, 1976 the appellant served a legal notice on the respondent Exh. 7 dated 17-5-1976 which was replied on 26-5-1976 in which the respondent tenant took up the plea that the appellant had sold out the quarter in question to him and transferred the possession to him. He agitated that the appellant was no longer the owner of the premises and that the respondent was the sole, absolute and lawful owner of the property. While he was living in half portion of the premises, the remaining half he had given to another person.
3. Being dissatisfied with the conduct of the respondent, appellant filed an ejectment application on 3-7-1976 against the respondent on the sold ground of default in payment of rent.
4. The respondent resisted the ejectment application by filing a written statement in which he denied the relationship of landlord and tenant and took up the plea that the appellant had transferred the premises to him for a consideration of Rs. 20,000. He admitted that the appellant himself had purchased the structure on the premises but he expressed his lack of knowledge if the property had been leased out by the K.M.C. In his favour.
5. Upon consideration of the relevant evidence on record, learned Rent Controller came to the conclusion that the lease deed in favour of the appellant being sub judice in Civil Suit No. 887 of 1979 it could not be said that he was the landlord of the respondent in respect of the premises in question. Consequently he dismissed the application giving rise to the instant appeal.
6. I have heard learned counsel appearing for the parties and with their assistance examined the material evidence on record.
7. The appellant claimed to be the owner and landlord of the premises and produced the lease deed Exh. 6, legal notice sent by him Exh. 7, postal receipt Exh. 8 and stated on oath that he had rented out half of the premises at the rate of Rs. 100 to the respondent in February, 1974. He further stated that the respondent paid the rent to him for a period of four months whereafter he failed to pay the rent. He denied the sale of the premises in favour of the respondent. He was cross-examined at length and confronted with the acknowledgement receipt Exh. 5, agreement of sale Exh. 5B and the agreement of sale in his own favour Exh. 5C. He categorically denied the execution of agreement of sale in respect of the demised premises in favour of the respondent and the receipt for payment of a sum of Rs. 5,000 but he admitted the purchase of the property in dispute from one Eiddo for Rs.
8. 40,000 but he denied the correctness of the agreement of sale Exh. 5C in his favour. He also refuted the suggestion that last-mentioned agreement was given by him to the respondent. His witnesses Muhammad Yaseen and Mansoorul Haq in their respective statements have supported his case that the demised premises belonged to him and that he had given half of the portion to the respondent on a monthly rent of Rs.
100. Legally speaking the evidence of landlord's witness Muhammad Yaseen cannot be take into consideration since his cross---examination had been reserved which was never resumed. From the evidence it is not ascertainable whether this witness did not appear for cross-examination or respondent had declined to cross-examine him. In the face of his examination-in-chief without any cross-examination in my humble view his evidence cannot be treated as legal evidence within the meaning of the term.
9. Respondent in his own evidence has relied upon the agreement of sale and the acknowledgement receipt in token of payment of earnest money amounting to Rs. 5,000 and claimed that it was executed by the appellant in his favour. He, however, added that he had not issued any notice to the appellant asking him to execute the registered sale-deed in respect of the property in dispute in his favour. He was constrained to admit that he had moved an application before Excise and Taxation Department for the transfer of property, in his favour in 1974-1975 after the execution of agreement but the said department did not transfer the property in dispute in his favour. In these circumstances, he also admitted that he was not paying the property tax or K.M.C. Taxes in respect of the property in dispute and probably both these taxes were being paid by the appellant. He also admitted the lease in respect of the property in dispute in favour of the appellant. He was left with no option but to concede that before filing of the rent case the appellant had sent a notice to him.
10. He was also compelled to admit that he had made an application to K.M.C. For the execution of lease deed in his favour but the same was not executed. His witnesses Muhammad Ramzan and Sanaullah have .No doubt tried to support the case of the respondent to the effect that the appellant had executed an agreement of sale in his favour and received part payment of Rs.
11. 15,000. While respondent's witness Muhammad Ramzan in his cross---examination stated that the document was executed on 11-1-1974 and the respondent paid Rs. 15,000 to the appellant in his presence, the second witness, namely, Sanaullah hesitated to say so and in his cross-examination he admitted that he had heard that opponent Nasroo had purchased the house but the transaction did not take place in his presence. Now in case this statement o1 the witness is accepted the alleged payment of Rs. 15,000 could not be made in his presence as this amount is stated to have been paid at the time of execution of the agreement of sale. Be that as it may, the execution or otherwise of the agreement of sale were the subject-matter of Suit No. 846 of 1985 renumbered as 259 of 1988. During the pendency of the appeal the appellant had filed an application under section 19 of the Ordinance seeking permission to produce certified copies of the orders dated 27-8-1990 and 10-11-1990 in the said suit which were brought on record vide order dated 12-11-1991. By these orders the appellant has shown that on 27-8-1990 the service of Court motion notice against the respondent/tenant was held good while by the order dated 10-11-1990 the suit had been dismissed for non-prosecution. Learned counsel appearing for the respondent stated at the Bar that an application under Order 9, rule 9, C.P.C. Seeking the restoration of the suit having been dismissed, a civil revision application has been filed before the High Court which is pending decision. There is a statement filed by learned Advocate for the respondent dated 25-1- 1993 on the file of this Court stating that after the dismissal of the title suit between the parties an application under Order 20, rule 5 read with Order 9, rule 9 and section 151, C.P.C. Had been presented on behalf of the respondent, therefore, the appellant could not take advantage of the dismissal of the suit.
12. PLD 1991 SC 242. Needless to point out prima facie an agreement of sale categorically repudiated and disputed by the appellant by itself would not operate as a bar to the jurisdiction of the Rent Controller to assume jurisdiction and to decide an ejectment application. I would therefore, disagree with the view of the learned Rent Controller when he states that it was difficult to accept that there existed the relationship of landlord and tenant between the parties. Having held above, there should be no difficulty in finding that the respondent had neither paid nor tendered a single pie to the appellant towards the arrears of rent since June, 1974 and thereby he has rendered himself Liable to eviction being a wilful defaulter. It is quite unfair and unreasonable on the part of a tenant to obtain the premises on rent and subsequently set up a title in his favour on the basis of an agreement of sale. In law a tenant is estopped from challenging the title of the landlord and in a case where he fails to establish his own title he is not entitled to any concession.