' This appeal is directed against the order of the Additional Rent Controller whereby he accepted the petition of the respondent for ejectment of the appellant:
2. Brief facts of the case are that respondent instituted a petition for ejectment of the appellant from House No,1643 situated in Street No,36, Peoples Colony, Rawalpindi Cantt. Stating that he is tenant in the disputed premises at the monthly rent of Rs,1,600 and during the period of tenancy he intended to purchase the said house. A written agreement to sell was executed on 17-3-1991, according to which the appellant had agreed to transfer a plot of 10 Marlas situated at Bait-e- Saida Colony, Misrial Road, Rawalpindi Cantt. Owned by him in the name of respondent in lieu of Rs,3,50,000. The price of the property in dispute was fixed at Rs,4,30,000. It was agreed between the parties that the value of the said plot i,e, Rs,3,50,000 would be adjusted in the sale consideration of the house, Rs,4,30,000 and the, balance amount of Rs,80,000 was to be paid as under:--
(i) Rs,50,000 in cash on or before 15-5-1991;
(ii) Rs,30,000 were to be paid by the appellant to the House Building Finance Corporation as their dues about the said house.
3. The appellant only paid Rs,71,000 as earnest money to the respondent and thereafter it transpired that the plot of 10 Marlas referred above which was to be transferred to the respondent for adjustment of the sale consideration of the disputed premises had been forcibly occupied by some other person and was not available for the said purpose. The appellant after coming to know about this fact, promised in presence of the witnesses that he would pay Rs,3,50,000 in cash to the respondent before 15-5-1991 in lieu of the transfer of the said plot and would get the registered sale deed executed of the disputed premises. It was also agreed that if the appellant failed in making payment of the amount of Rs,3,50,000 by the due date, then he would start paying the rent to the respondent but he failed to pay the said amount by due date and even after that date despite repeated demands by him where after he was forced to cancel the sale agreement and earnest money of Rs,71,000 was adjusted towards the house rent at the rate of Rs,1,600 per month with effect from 19-3-1991 to 30-11-1994. In this behalf a legal notice was issued to the appellant on 19-1- 1995. The respondent also requested the appellant for the vacation of the house as the same was required for his personal use. The appellant in spite of receipt of the notice neither paid the rent to respondent from December, 1994 till filing of the petition nor vacated the house. The respondent sought the eviction of the appellant on the ground of default in payment of rent and for his own personal bona fide need.
4. The appellant contested the eviction petition by submitting written reply wherein he denied the relationship of landlord and tenant between the parties and stated that the petition is malicious in nature and mischievous in intent. He submitted that initially a portion of house was taken on rent at the rate of Rs,700 per month but in March, 1991 the parties executed an agreement of sale dated 17- 3-1991 whereby the value of the aforesaid house was fixed at Rs,4,30,000 whereupon the appellant sold his plot to him the same day in lieu of Rs,35,000 which amount was adjusted towards the payment of the disputed house and for balance amount of Rs,80,000 it was agreed that Rs,50,000 would be paid by the appellant to the respondent on or before 15-5-1991 and an amount of Rs,30,000 was to be paid by the appellant to the H.B.F.C. Subject to the condition that if the dues of the said Corporation were to the tune of Rs,30,000, the same were to be cleared by the appellant and if the dues exceeded said amount, the excess amount was to be paid by the respondent and in case of lesser amount, the balance amount was to be retained by the appellant. It was further stated in the written reply that the appellant paid the sum of Rs,50,000 in cash to the respondent while he paid Rs,21,000 to the House Building Finance Corporation as payable dues. He claimed that in this way he performed his part of the contract within the stipulated period. He alleged that the respondent with a view to avoid the execution of sale-deed and getting the same registered has filed the eviction petition.
5. On the divergent pleading's of the parties, learned Additional Rent Controller framed the following issue:-- ' Whether there exists a relationship of landlord and tenant between the parties? OPP.
' The petitioner/respondent closed his evidence on 28-11-1995 while the appellant despite a number of adjournments granted to him for production of evidence failed to produce the same and ultimately his evidence was closed on 11-3-1996 on which date learned Tribunal below passed the ejectment order against him.
6. Learned counsel for the appellants contends that reasonable opportunity was not given to him for production of his evidence. The agreement to sell Exh.P-1 shows that the house in dispute has been purchased by the appellant and the relationship of landlord and tenant is not established between the parties, therefore, the order of eviction is liable to be set aside.
7. Learned counsel for the respondent-landlord on the other hand submits that the agreement to sell does not create any right in favour of any party until its conditions are fulfilled. According to agreement the appellant was required to fulfil the condition precedent of payment of Rs,3,50,000 to respondent by 15-5-1991 failing which he was required to pay rent to the respondent at the rate of Rs,1,600 per month. He also submits that evidence of the respondent was closed on 28-11-1995. The case was fixed for evidence of the appellant on 10-12-1995. He failed to produce his evidence on the said date and the case was then adjourned to 3-1-1996. Again no evidence was produced by him and the case was fixed for 23-1-1996. On the said date last adjournment was allowed to the appellant for production of his evidence on 8-2-1996. Again appellant failed to produce his evidence and at the request of his learned counsel case was adjourned to 5-3-1996. On which date again last opportunity was given to the appellant for production of his evidence. On 11-3-1996 also evidence was not produced by him and consequently his evidence was closed. He maintains that conduct of the appellant clearly shows that he had no intention to produce the evidence in rebuttal.
7-A. I have heard the learned counsel for the parties and gone through the record. The perusal of the agreement to sell Exh.P-1 shows that the appellant agreed to transfer nis plot of 10 Marlas in favour of the respondent in addition to the cash payment of Rs,80,000 in lieu of the disputed house.
Since the plot intended to be transferred to the respondent was not available for the purpose having been forcibly occupied by some other person, as a substitute thereof, appellant agreed to pay a sum of Rs,3,50,000 to the respondent by 15-5-1991. In presence of the witnesses he undertook that in case he failed to make payment of the said amount by the due date, he would become tenant of the respondent at the rate of Rs,1,600 per month and the amount of Rs,71,000 already paid to the respondent as earnest money for purchase of the disputed house shall be adjusted as house rent. The appellant did not pay the amount of Rs,3,50,000 by the due date and even thereafter despite the repeated demands by the respondent, whereupon the respondent cancelled the said agreement and adjusted the earnest money of Rs,71,000 towards the house rent with effect from 19-3-1991 to 30-11-1994. The appellant has not paid any rent to the respondent with effect from December, 1994 till the order of eviction and todate. He is enjoying the possession of the disputed house without payment of any rent.
8. The conduction of the appellant shows that he was interested in delaying the adjudication of the ejectment petition. Firstly he had been asking for adjournments for submission of his written statement and after exhausting all the opportunities in that behalf, he started delaying the production of evidence. He failed to produce his evidence on 3 consecutive dates in support of his plea. Thereafter learned Rent Controller on 23-1-1996 gave him last opportunity for producing his evidence by adjourning the case for 8-2-1996. On this date also no evidence was produced by him.
On 8-2-1996 a request for adjournment was made on behalf of his counsel and the case was adjourned to 5-3-1996 on which date again last opportunity was given to him with a direction to produce his evidence on 11-3-1996 otherwise his evidence shall be closed. On the said date again the appellant did not produce his evidence and the learned Rent Controller was constrained to close his evidence and to accept the evidence of the respondent as there was no rebuttal thereof.
Six dates were given by the learned Tribunal below to the appellant for production of his evidence, but still he failed to produce his evidence. In this contest the contention of the learned counsel that no reasonable opportunity was given to the appellant for production of his evidence is without any substance on the face of the record, which shows that the appellant was negligent and had been getting adjournments for production of his evidence without any intention to produce the same.
Since there was no evidence on behalf of the appellant, learned Rent Controller was justified in accepting the application of the respondent.
9. The agreement to sell itself does not create any right. If it was a genuine document the appellant could have moved the relevant forum for specific performance of the contract. The inference drawn by the learned Rent Controller from the evidence on the record is amply justified in the given facts and circumstances of the case. The impugned order does not suffer from any legal infirmity calling for interference by this Court. There is no merit in this appeal which is dismissed with no order as to costs.
10. Learned counsel for the appellant has requested for grant of reasonable time for vacation of the disputed premises. The appellant is allowed three months time to vacate the same. He shall hand over the vacant possession of the disputed house to the respondent landlord on or before 25-6- 1998.