1. ' The facts of the matter are that applicants are the legal heirs of late Khushnood Hassan who was plaintiff in Suit No,613 of 1987 and respondent was defendant. The applicants filed the Suit against the respondent for declaration, specific performance and permanent injunction stating therein that on 11-6-1983, applicants had purchased the house bearing No,A-250, Korangi Market No,6, Karachi from the respondent in total consideration of Rs,80,000 out of which he had paid Rs,40,000 to the respondent at the time of sale agreement which was acknowledged by the respondent through receipt in favour of the applicants and further in presence of sale agreement the respondent put the plaintiff/applicants in physical possession of the house in dispute. The sale agreement/receipt was witnessed by attesting witnesses. The abovementioned Civil Suit was dismissed by the learned VI Senior Civil Judge, Karachi East vide judgment dated 23-10-1997.
2. Against this judgment applicants have preferred Civil Appeal bearing No,70/97 before the VIth Additional District & Sessions Judge, Karachi East.
3. ' After filing of the appeal applicants filed application under Order XLI Rule 5 read with section 151, C.P.C. For seeking injunction against the ejectment of the applicants from the disputed house ordered by the learned VI Senior Civil Judge and Rent Controller, Karachi (East) in rent Case No,279/87 Exh.2/90 pending between the parties.
4. ' Learned counsel for the applicants contended that the applicants are entitled to seek protection of their possession under section 53-A of Transfer of Property Act 1882. That since appeal has been admitted for regular hearing and without grant of stay the pendency of the appeal would be meaningless. The pendency of appeal enjoins upon the Court that the house shall not be vacated unless the suit proceedings including appeal proceedings are concluded. That the Court below has committed gross illegality in refusing the stay against the execution. Learned counsel has referred Sardar Muhammad Anwar Khan v. Mian Asghar Ali (1988 CLC 402).
5. ' Mr. Sardar W. Qureshi, learned counsel has contended that this revision application 'itself is not maintainable inasmuch as there is no material irregularity/illegality in the order passed by the Courts below, whereas the Courts below have properly exercised their jurisdiction. The Civil Suit bearing No,613/87 filed by the applicants was dismissed by the learned trial Court after recording the evidence and hearing the parties vide judgment referred hereinabove against which no doubt appeal has been filed but stay application has rightly been rejected by the learned VIIth Additional Sessions Judge, Karachi East which order is agitated through this revision. That the respondent filed rent case No,279/1987 against late Khushnood Hasan, the predecessor-ininterest of the applicants which was allowed by the learned Rent Controller, against the same order Khushnood Hassan filed First Rent Appeal No,11 of 1990 which was also dismissed by Saleem Akhtar, J, (as his Lordship then was) vide judgment dated 13-1-1991, against this judgment applicant Khushnood Khan preferred Civil Petition for Leave to Appeal bearing No,70-K of 1991, the same petition was withdrawn by the learned counsel for the applicant and the petition was dismissed as withdrawn. Learned counsel for the respondents relied upon the following authorities:
(1) Khawaja Ammar Hussain v. Muhammad Shabiruddin Khan (1987 CLC 1149).
(2) Muhammad Anwar v. Arshad Mani (PLD 1988 Lahore 264).
(3) Faiz Ahmed and another v. Mst. Qudsia Khatoon (1991 MLD 1051).
(4) Muhammad Rafique v. Messrs Habib Bank Limited (1994 SCMR 1012).
(5) Shakeel Ahmed v. Mrs. Naseem Akhtar (1994 CLC 2328).
6. ' It would be pertinent to point out that Saleem Akhtar J, (as his Lordship then was) while going through the entire case of the late appellant Khushnood Hassan regarding his contention that he has purchased the disputed house from the respondent and paid Rs,40,000 to him as advance and balance of Rs,40,000 was to be paid after deducting entire expenses. The learned Judge has also considered the Civil Suit for specific performance of the agreement against the respondent, though respondent has denied that he has sold the property to the applicant. After considering the entire aspects of the case, evidence and case-law, the learned Judge observed as follows:-- ' "I am of the further view that the tenancy did not cease to exist on execution of the receipt and that the appellant was liable to pay rent."
7. ' Learned Judge further observed that: "Although the appeal is being dismissed the respondent would not eject the appellant during the operation of order of injunction or if the suit is decreed. The appellant is directed to deposit rent in Court at the rate of Rs,100 p.m. Till the suit filed by him is disposed of. With these observations that the appeal is dismissed.
8. ' Whereas their Lordship of the Supreme Court dismissed the Civil Petition filed by the appellant against this order with the following observations: "However, Syed Ansar Hussain, Learned Advocate Supreme Court appearing for the petitioner, has submitted that the petitioner does not wish to press the above petition but request that this Court may make observation that the observations contained in the High Court's Judgment will not prejudice the petitioner in the pending suit.
9. ' In this regard, it may be pertinent to observe that the learned Judge in Chamber has made following observation in the impugned judgment:- "I do not feel it necessary to make any comment on this document as they will be subjected to proof before the Civil Court and an observation at this stage is likely to cause prejudice to either party."
10. ' From the abovequoted observation, it is evident that the learned Judge in chamber was conscious of the fact that the matter is sub judice on the question of sale before the civil Court and, therefore, he made tentative observation for the purpose of examining the case under section 14 of the Ordinance, which, will not come in the way of either of the parties in the pending suit."
11. ' It is also matter of fact that late Khushnood Hassan also did not deposit rent of Rs,100 p.m. As ordered by the learned Judge of this Court while dismissing his F.R.A. Moreover Civil Petition for Leave to Appeal was also withdrawn by the applicants on their own accord. Suit filed by the applicants has been dismissed by the Senior Civil Judge referred hereinabove and the injunction so granted in favour of the applicant by the High Court as well as by their Lordships of the Supreme Court is not in the field at present. In view of the above facts I would like to discuss the case-law cited by the learned counsel for the parties ' Learned counsel for the applicants cited Muhammad Anwar Khan v. Mian Asghar Ali (1988 CLC 402). In this case Rustam S. Sidhwa, J, (as his Lordship then was) decided the civil revision filed by Sardar Muhammad Anwar Khan petitioner against the judgment of learned Additional District Judge of Lahore dismissing his appeal filed against the order of Civil Judge, Lahore, dated 13-3- 1975 dismissing his civil suit and also against the order of the learned Additional District Judge dismissing his application for the amendment of the plaint and writ petition filed by Sardar Muhammad Anwar, petitioner, against a separate order of the learned Additional District Judge Lahore, dismissing his appeal filed against the order of Rent Controller, Lahore ordering his conviction from Bungalow No,21-B, Gulberg H, Lahore.
12. ' The facts of both these petitions are that, Mian Asghar Ali, respondent, on 22-2-1972 executed an agreement for sale in favour of Sardar Muhammad Anwar, petitioner agreeing to sell his Bungalow No,21-B, Gulberg II, Lahore, to the petitioner for a consideration of Rs,1,40,000. The Agreement inter alia contained that Rs,5,000 had been paid by the petitioner as earnest money and that further sum of Rs,20,000 would be paid as advance to the respondent by 5th March, 1972, the date on which possession of the bungalow would be given to the Petitioner another sum of Rs,15,000 would be paid as advance to the respondent by 5th April, 1972 that the balance sum of Rs,1,00,000 would be paid to the respondent at the time of execution and registration of the sale-deed which would be executed by the respondent within six months from the date of execution of the agreement.
13. Further that respondent would obtain the necessary clearance certificates showing that taxes and bills on the bungalow had been paid, petitioner would have the right of paying out of the balance sale price, the sum of Rs,50,000 to the mortgagee bank, which was due and payable by the respondent to the Bank on the mortgage of the bungalow, petitioner would execute a rent note in favour of the respondent agreeing to pay rent for the said bungalow at Rs,700 per mensem, so that if the petitioner did not fulfil the agreement within six months, rent would be claimed at the said rate and if the petitioner delayed fulfilment thereafter, at Rs,1,400 per mensem, and that if the petitioner defaulted in the fulfilment of the contract, the earnest money of Rs,5,000 would be forfeited and the petitioner would be duty bound to deliver back the possession of the bungalow to the respondent.
14. ' It was the case of both the parties that possession of the bungalow was taken by the petitioner on 22-2-1972, that advance of Rs,20,000 was paid by the petitioner to the respondent before the 5th March, 1972, but as regards the advance of Rs,15,000 to the paid by the petitioner to the respondent by 5th April, 1972, it was the case of the petitioner that this amount was so paid, but the respondent only admitted that a sum of Rs,10,000 was paid. Respondent on 17-8-1972, served a notice on the petitioner to complete the transaction, failing which, he would become liable to pay rent according to the terms of the agreement. In the said notice it was mentioned that he had only paid Rs,30,000 towards the two advances, instead of Rs,35,000. On 21-8-1972 the petitioner replied back to state that he was ready to complete the transaction and that he had paid the sum of Rs,35,000 towards the two advances. On 23-8-1972, the respondent sent a notice to the petitioner stating that the agreement stood terminated for default of performance on the part of the petitioner and that earnest money of Rs,5,000 stood forfeited to him. Respondent on 30-4-1974, served another notice on the petitioner reiterating the facts of the earlier notice that the amount of Rs,30,000 paid by the petitioner as advance would stand adjusted against the rent at the rate of Rs,1,400 per mensem from 5-3-1972 to 30-4-1974.
15. ' On 23-5-1974, the respondent filed an eviction petition against the petitioner claiming default in the payment of rent. He submitted that he had entered into an agreement for sale with the petitioner in respect of the disputed bungalow for a sum of Rs,1,40,000 against which he had received Rs,5,000 towards earnest money and Rs,30,000 towards advance, instead of Rs,35,000 which was to be paid, and after adjusting Rs,5,000 towards earnest money forfeited in his favour Rs,4,200 as rent for the period 22-2-1972 to 22-8-1972 at the rate of Rs,700 per mensem and the balance of Rs,29,400 as rent for the period from 23-8-1972 to 22-5-1974 at the rate of Rs,1,400 per mensem, a sum of Rs,3,600 was outstanding as arrears of rent upto 22-5-1974. Accordingly, his ejectment was sought on the ground of default in payment of rent.
16. ' The petitioner denied the facts stated in the above petition and denied the relationship of landlord and tenant between the parties. He also objected to the jurisdiction of the Rent Controller to decide the matter which related to the terms and conditions of agreement for sale and further pleaded that he had become the owner of the bungalow by operation of law. He also admitted the execution of the agreement dated 22-2-1972 and did not dispute its terms and conditions except assert that the payment of the balance sum of Rs,1,00,000 was subject to the clearance of all the dues by the respondent. The petitioner in his written statement also admitted the receipt of notices dated 17-8-1972 and 23-8-1972 given to him by the respondent, but denied the receipt of notice dated 20-9-1972. Since the petitioner considered himself the owner of the bungalow, due to breach of the terms of the agreement by the respondent he did not consider himself liable for the payment of rent to the respondent and denied the default in payment of rent.
17. ' In this background of the matter the learned Judge accepted the writ petition and was pleased to set aside the judgment of Additional District Judge, Lahore, and eviction petition was remanded to the Rent Controller to await the decision in the civil suit, before delivering the judgment afresh. On the face of it with due respect to the authority I am of the firm opinion that this authority in any case is not relevant, applicable and helpful to the case of the applicants. Moreover the eviction application was remanded to the Rent Controller to await the decision in the civil suit, before delivering the judgment, whereas in this case civil suit filed by the applicants has already been dismissed by the judgment of the learned Senior Civil Judge referred hereinabove. I would be failing in my duty if I do not record the observations of Saleem Akhtar, J, (as his Lordship then was regarding the contention of the applicants that he has purchased the house from the respondent and has paid Rs,40,000 as an earnest money.
18. ' ...."A close scrutiny of the original document filed before the Controller which is at page 181 of the Controller's record will show a coma but full stop is also visible. The words quoted above and underlined which are alleged to have been added afterwards do not seem to be in line with the words proceeding these words. It seems clear that these words were added afterwards otherwise it would have written at the same time it would have been in line with the preceding words. This discrepancy in the receipt is sufficient to cast doubt upon the genuineness of the additional words inserted in it. It seems significant that by inserting these words, the situation in the case can completely be overturned. If these words would not have occurred in this receipt allegedly executed by the respondent, the appellant would not have been entitled to claim possession in part performance of the agreement and the tenancy would not have ceased to exist, nor the appellant would have been entitled to stop payment of rent. Therefore, for the purposes of this rent case in my view these words were added afterwards, merely to avoid any ejectment,"
19. ' In view of these observations of a learned Judge of this Court, the authority referred by Syed Ansar Hussain, in any case is not relevant in so far as the decision of this revision application is concerned.
20. ' In would discuss the case-law referred by the learned counsel for the respondent.
(1) Khawaja Ammar Husain v. Muhammad Shabbiruddin Khan (1987 CLC 1149). In this case Naimuddin, J, (as his Lordship then was) considering the agreement of sale of rented premises held that 'in absence of any express or implied stipulation in agreement of sale between landlord and tenant in respect of premises already in occupation of tenant, that henceforth occupation of tenant would not be as tenant but as vendee, such tenant would continue to be tenant unless and until relationship between parties be determined by agreement, or by decree of Court or by operation of law. Whereas in case in hand the rent case filed by respondent was allowed, F.R.A.
21. Filed by the applicants against the order was dismissed, special Leave to Appeal Petition filed against the order of dismissal of F.R.A. Was also withdrawn. The Civil Suit filed by the applicants was dismissed by the learned senior Civil Judge, the applicants also did not deposit the rent of Rs,100 per month as ordered by the High Court, the rent proceedings are quite separate and stay of the execution in rent case in any case is not warranted.
(2) Muhammad Anwar v. Arshad Jilani (PLD 1988 Lahore 264) in this case, the learned Judge while discussing the provisions of section 52-A of Transfer of Property Act has laid down that where transaction of agreement to sell was admitted by both parties, party found to be in actual possession of such property would be presumed to be in possession thereof under such agreement or in part performance of it. Such person, however, could not take benefit of section 53- A of Transfer of Property Act, where agreement to sell was not in writing and transferee had performed or was willing to perform his part of contract. In the case in hand the respondent has denied the sale of the property moreover written agreement was also not produced before the Rent Controller and receipt as alleged to have been issued by the respondent in favour of the applicant Khushnood Hassan for Rs,40,000 was not accepted by the Rent Controller in the rent case, the same plea was rejected by the learned senior Civil Judge in the civil suit filed by the applicants which was dismissed by the Senior Civil Judge referred hereinabove. Moreover the observations regarding interpolation made by Saleem Akhtar J, (As his Lordship then was) as referred hereinabove are itself sufficient to discard the same.
(3) Faiz Ahmad and another v. Mst. Qudsia Khatoon (1991 MLD 1051). In this case Syed Abdul Rehman, J, (as his Lordship then was) has observed that even otherwise an agreement of sale does not absolve the tenant even if he is the proposed purchaser of the premises which he had initially taken on rent, until and unless there is a clear term that the tenant shall not pay the rent after such agreement. Here in this case also no such agreement has been produced by the applicants. Moreover their civil suit has been dismissed by a competent Court, rent application of the respondent was allowed by the Rent Controller against which F.R.A. Was dismissed, leave to appeal petition was withdrawn, under the circumstances this authority in my humble opinion is applicable to the facts of the present case.
(4) Muhammad Rafique v. Messrs Habib Bank Limited (1994 SCMR 1012). In this case their Lordships of the Supreme Court has held that: ' "We may point out that this Court has declined to allow tenants to plead section 53-A of the Act even in case, in which the landlords entered into agreement to sell the tenements to the tenants in absence of a clause in the sale agreement to the effect that the relationship of the landlord and tenant ceased to exist and that the possession of the tenant was of that of a purchaser after execution of the sale agreement.
(5) Shakeel Ahmed v. Mrs. Naseem Akhtar (1994 CLC 2328) In this his Lordship Mukhtar Ahmed Junejo, J, has held that consequently I am of the view that the appellant is not entitled to any benefit under section 53-A of Transfer of Property Act on the ground that he had entered into an agreement with the respondent for purchase of the demised premises.
22. ' I have gone through the material placed with the case and have minutely gone through the authorities cited by the learned counsel for the parties which have been discussed hereinabove.
23. The admitted facts of the case are that rent case filed by the respondent was allowed by the Rent Controller against which F.R.A was filed which was also dismissed and Special Leave to Appeal filed by the applicants was also withdrawn by him on his own accord. The civil suit filed by the applicants has also been dismissed by the learned Senior Civil Judge, no doubt appeal against the same judgment has been filed but stay application was rejected by the 7th Additional District Judge, Karachi East against which order the revision has been filed. The matter is pending before the learned Rent Controller being rent case No,279/1987 and execution bearing No,2/90 is pending and litigation since then is going on and the ejectment of the applicants could not take place due to these proceedings. However since civil suit filed by the applicants has been dismissed by the Senior Civil Judge while deciding the suit bearing No,613/37 vide judgment dated 23-10-1997. The F.R.A. Bearing No,11/1990 filed by the Khushnood Hassan was also dismissed with the observations made by the learned Judge of this Court referred hereinabove, special petition for leave appeal filed by the applicants was also withdrawn by them referred hereinabove. Moreover applicants also did not deposit Rs,100 per month as rent as ordered by this Court vide judgment dated 13-1- 1991.
24. ' The contention of the learned counsel for the applicants is that since appeal against the judgment of Senior Civil Judge is pending therefore stay application filed by the respondent in rent case No,279/87 and Execution bearing No,2/90 pending before the Rent Controller Karachi East may be stayed is uncalled for. The respondent after litigation of 10 years cannot be denied the fruit of decree passed in his favour . The order passed by the learned 7th Additional District and Sessions Judge Karachi is legal and he has exercised his jurisdiction quite correctly and there is no any illegality or gross irregularity in the exercise of the jurisdiction by the Court below. The case-law referred by Mr. Ansar Hussain in my humble opinion is not relevant and applicable to the facts of the present matter whereas case-law cited by Mr. Sardar W. Qureshi, Advocate in my humble opinion is relevant to the facts of the present which I respectfully follow.
25. ' For the facts, circumstances and case-law discussed and referred hereinabove I am of the firm opinion that this revision application is devoid of merits and circumstances which must fail, the same accordingly is hereby dismissed. In view of the above order C.M.A. No,1225/97 is dismissed having become infructuous.
26. ' On 2-12-1997 after hearing the parties the matter was dismissed in limine by short order and above are the reasons for the same.