1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as Rent Ordinance) directed against an order, dated 31-10-1993 whereby an application under section 16(2) of Sindh Rented Premises Ordinance 'moved by the respondent applicant dated 15-11-1992 was allowed and the appellant was ordered to vacate the premises in his possession within thirty days, hence this appeal.
2. ' Brief facts of the case are that the respondent/applicant filed an application under section 15 Rent Ordinance against the appellant on the ground of default in payment of rent from October, 1990 to February, 1991 who filed his written statement on 20-8-1991 wherein he stated that there was no relationship between the parties as landlord and tenant. The respondent/applicant moved an application under section 16(1) of Rent Ordinance with a prayer to pass an order to deposit arrears and future rent by the appellant, The appellant filed objections and after hearing the learned counsel for parties an order under section 16(1) was passed on 1-10-1992 whereby the appellant was ordered to deposit rent at the rate Rs,2000 per month from October, 1990 to August, 1992 amounting to Rs, 46,000 minus Rs,1000 which was already received by the respondent/applicant within two months from the date of the said order. So far rent for the month of September, 1992, same was ordered to be deposited on or before 10th October, 1992 and further rent of each calendar month was to be deposited by 10th day of each following month and it was further ordered that the respondent applicant would not be entitled to withdraw the arrears of rent and future rent till further orders. The respondent applicant filed an application under section 16(2) of Rent Ordinance on 15-11-1992 stating therein that the appellant has failed to deposit arrears of rent in Court as directed by the Court as per order dated 1-10-1992, therefore, defence of the appellant be struck off and the respondent applicant be put into possession of the premises. The appellant filed objections to the said application on 4-1-1993 wherein it was stated that two months period would expire on 30-11-1992 whereas the respondent applicant has made an application under section 16(2) of Rent Ordinance on 15-11-1992 i.e: 15 days before the time of compliance, therefore, this application so made was premature, consequently same was withdrawn as per statement dated 31-1-1993 of the learned counsel for respondent applicant. However, the said application was repeated under section 16(2) of Rent Ordinance on 3-2-1993 against which objections were filed by the appellant opponent on 22-2-1993. After hearing the learned counsel for parties, impugned order was passed.
3. ' 1 have heard learned counsel for parties and perused the record and proceedings of the case.
4. ' Learned counsel for appellant has argued that as per agreement of sale dated 14-3-1990 respondent was to prepare and present sale-deed before the Sub-Registrar and get it registered at his own expenses and to receive the balance of consideration and all rents dishonestly received by the respondent were to be readjusted towards the balance of price of the premises in dispute and further that in view of the sale agreement there remained no relationship of landlord and tenant between the parties after 22-3-1990 when Judicial Miscellaneous Nos. 35 of 1988 was decided by the High Court. Learned counsel for appellant has placed reliance upon Sardar Muhammad Anwar Khan v. Mian Asghar Ali (1988 CLC 402) Mst. Akhtar Begum and others v. Mian Aziz (1985 SCM R 1617 in support of his contentions ' Learned counsel for respondent has argued that as per sale agreement, dated 12th March, 1990, total consideration for the premises in dispute was settled at Rs, 1, 60,000 out of which sum of Rs, 24,000 was paid, balance was to be paid after disposal of case pending in the Court when the respondent was to transfer the premises in the name of the appellant and amount of expenses required on the transfer of the said premises were to be made by the respondent himself till then the appellant was to pay sum of Rs, 2,000 as rent before 10th of each calendar month when rent for the month of March, 1990 was stated to have been paid in advance. Learned counsel for the respondent further submitted that after getting the said premises cleared from litigation, he informed the appellant orally as well as in writing that the premises in dispute has been cleared from litigation, therefore, he was in a position to execute sale-deed but appellant expressed his inability to make payment of balance of consideration and for that written notices were exchanged between the parties but appellant continued to pay rent till September, 1990. Learned counsel for the respondent has referred to notice dated 12-2-1991 sent by him to appellant asking him either to pay rent or to pay balance as he wanted to complete the sale but appellant neither paid rent nor paid balance of consideration amount, consequently, eviction application was filed against the appellant. Learned counsel for respondent has placed reliance upon S. Muhammad Naeem Hashmi v. Muhammad Rafi (1985 CLC 2133), (ii) Asad Ahmad Siddiqui v. Mst. Vilayati Begum through L.Rs, (1990 M LD 2247), (iii) Faiz Muhammad and another v. Mst. Quddusia Khatoon (1991 M LD 1051) and (iv) Gopal Das v. Riaz Ahmad Qureshi (1990 MLD 2215) in support of his contentions.
5. ' The learned Rent Controller while passing tentative rent order dated 1-10-1992 has observed:--- "I have considered the arguments of both counsel. The opponent has not denied that the rent is due from October, 1990 and he has also admitted the execution of agreement in respect of payment of rent by him. The Rent Controller is not empowered to adjudge the said agreement as void or of no consequences. Since there is an agreement between the applicant and opponent that the opponent was bound to pay the rent at the rate of Rs,2,000 per month hence I find that there exists relationship of landlord and tenant because there is no clear term in the agreement to sell that opponent would not pay the rent after the cexecution of sale agreement. Learned counsel has relied upon an authority cited 1991 MLD 1053...."
6. ' Learned Rent Controller after making tentative assessment determined the arrears of rent due and ordered the appellant/tenant to deposit the same as per tentative rent order dated 1-10-1992.
7. ' It is admitted position that the appellant did not deposit the rent after October, 1990 and he has also admitted th' in terms of agreement he was liable to pay rent at the rate of Rs,2,000 per month.
8. There is nothing in the said agreement dated 12-3-1990 that on execution of the said agreement, the appellant would not be liable to pay rent to the respondent. However, it was stipulated that as the case property was under litigation, therefore, as soon as the title is cleared by the Court, the respondent would transfer the premises in question. In the instant case, the respondent has produced letters dated 22-9-1990, 28-10-1990, 10-11-1990 and 12-2-1991, wherein he has asked the appellant either to pay the balance amount or to pay rent to him as the title in respect of property has been cleared by this Court. But it would appear that the appellant did not pay the balance of consideration and also did not pay the monthly rent from October, 1990 therefore, ejectment application was filed. Mere agreement of sale would not absolve the appellant to pay rent only because he was proposed purchaser of the premises when there has been no term that appellant would not pay rent on this executing such agreement of sale when such agreement of sale would not create any right title or interest in or over the property in favour of appellant the proposed purchaser until and unless they said relationship of landlord and tenant is determined by an agreement. Reference may be made to Faiz Muhammad and others v. Quddusia Khatoon (1991 M LD 1051) and Gopal Das v. Riaz Ahmad Qureshi (1990 M LD 2212). The facts of cases viz. Mst. Akhtar Begum and others v. Mian Aziz (1985 SCM R 1617) and Sardar Muhammad Anwar Khan v. Mian Ashgar Ali (1988 CLC 402) cited by learned counsel for appellant are different and distinguishable to the facts of instant case considering that in the instant case the Rent Controller was moved under section 15 of the Rent Ordinance who has a limited jurisdiction in respect of the matter in question before him whereas in the cited case of Supreme Court a suit was filed for declaration and injunction by the plaintiff whereas in the case of Sardar Muhammad Anwar Khan it was a civil revision and the writ petition wherein the said observations were made by the learned Judge in Chambers.
9. Admittedly in the case the appellant has not deposited rent in terms of order dated 1-10-1992 and there has been deliberate and wilful non-compliance of the tentative rent order, which would invite penalty of striking off the defence of the appellant contemplated under section 16(2) of Rent Ordinance. In the circumstances no exception could be taken to the order passed by learned Rent Controller.
10. ' Accordingly appeal is dismissed with the directions to the appellant to vacate the disputed premises within 30 days subject to refund by the respondent of the amount of consideration paid towards the price of the premisses in question to the appellant after adjustment of the rent till delivery of possession.
11. ' These are the reasons for the dismissal of appeal announced as per short order on 8-9-1997.