JUDGMENT MUHAMMAD ASHRAF LEGHARI, J.- The appellant through this appeal has assailed the order dated 30.1.1999 passed by Additional Controller of Rent Clifton, Cantonment karachi in Rent Case No. 68/97, whereby the ejectment application filed by Mst. Shahida Khatoon was allowed and the appellant was ordered to hand over the physical possession of the premises to the respondents within 45 days from the date of the order.
2. The brief facts of the case are that late Mst. Shahida Khatoon owned House No. 29/1, Commercial Avenue Phase IV, Defence Housing Authority Karachi. The appellant was the tenant of the premises at the monthly rent of Rs.6600/- payable on yearly basis, beginning from lst October of every year ending on 30th September of the coming year, it was stated that the appellant was irregular in payment of rent and had giver* three cheques in March, 1997 and onwards which were dishonoured. The appellant failed to deposit the rent from October, 1 996 to September, 1 997 at the aforesaid rate. She further stated that the appellant made certain additions and alterations in the premises without obtaining any permission of the landlady and thereby impaired the value of the bungalow. The bungalow was required to her for the use of her family. She filed an ejectment application under Section 17(2)(4) of Cantonment Rent Restriction Act, 1963 before the Cantonment Rent Controller, Clifton, Karachi.
3. The respondent was served with notice. He filed written statement wherein he stated that he was not tenant of application but he had purchased the premises from applicant through lease agreement dated 7.9.87. He was occupying the same having agreed to purchase it from applicant Mst. Shahida Khatoon for a consideration of Rs.20,00,000/- (Rupees Two millions) and made part payment amounting to Rs.12,00,000/- to the landlady as earnest money and was paying subsequently Rs.79200/- as annual installment towards the sale consideration. He admitted that the cheques issued by him in favour of lady were dishonoured as he had already paid the amount in cash to her son.
4. The appellant moved an application under Section 34 of the Arbitration Act, 1940 on 23.8.1997 praying therein that the matter be referred to arbitration under Section 34 of the Act for the Settlement of the dispute. The said application under Section 34 referring the matter to the arbitrator was dismissed by the learned Rent Controller.
5. The applicant moved an application under Section 17(6) of the Cantonment Rent Restriction Act, 1963, praying therein that the opponent, tenant be directed to deposit the arrears in the Court. The tenant was directed to deposit the arrears of rent as well as future monthly rent vide order dated 14.4.1 998.
6. It is pertinent to note that thereafter an application under Section 17(9) of the Cantonment Rent Restriction Act, 1963 was filed by respondents in the matter on 21.5.1998, praying that since the appellant had failed to. Deposit the arrears of rent amounting to Rs. 125400/- up to 13.5.1998 in terms of the tentative rent order dated 14.4.1998, therefore, the defence of the appellant be struck of. The appellant filed objections thereto on 27.6.1998.
7. The application under Section 17(9) moved by the landlady for striking of the defence of the appellant was allowed as the appellant had failed to comply with the tentative rent order passed by Rent Controller on 14.4.1998. The appellant has challenged the said order.
8. It is contended by the learned counsel for appellant that the learned Rent Controller should have determined the relationship of landlord and tenant between the parties in the first instance and he should have framed the preliminary issue to that effect, it is pleaded that no specific finding in respect of existence of said relationship is recorded by the Rent Controller. The suit in respect of the premises is filed by the appellant in this Hon'ble Court on original side which is pending and therefore the rent matter should be stayed till the final decision in the civil suit, it is stated that the appellant is the owner of the property and there is no relationship of landlord and tenant between the parties. Reliance is placed upon the cases of Rehmatullah v. AH Muhammad and another (1983 SCMR 1064) and Province' of Punjab through Education Secretary and another v. Mufti Abdu! Ghani (PLD 1 985 SC 1).
9. Learned counsel for respondents has contended that no application was moved in the Court of learned Rent Controller for determination of tenancy relationship between the parties, it is argued that the appellant was put in possession as tenant. He was irregular in payment of rent. The appellant issued cheques for payment of rent but those weft dishonoured. He further stated that the appellant has himself, pleaded that the cash payment was made to the applicant's son, therefore, the cheques were dishonoured. He has stated in his written statement as under:- "It is reiterated that the cheques pertained to the rent of the premises."
It is argued that the contents of lease agreement have not been denied by the appellant. The agreement by no means can be termed as sale-deed or sale agreement. The lease agreement clearly mentions that the premises are given to appellant for 24 months at a monthly rent of Rs.6000/-. The contents of lease agreement further shows that the appellant was tenant of the landlady. The learned Rent Controller on an application moved by respondents passed tentative rent order on 14.4.1998, whereby the appellant was directed to deposit the rent at the rate of Rs.6600/- per month for the month of May, 1998 before 5th of June and subsequent rent before 5th of each calendar month. The appellant was directed to deposit the arrears with effect from October, 1996 to April, 1998 amounting to Rs. 125400/- within 30 days of the passing of said order.
The appellant failed to comply with the said order, therefore the Rent Controller rightly struck of the defence of the opponent. The learned counsel for respondent placed reliance upon the cases reported as Ashiq A/i and another v. Mehar Ellahi and 13 others v. Syed Abdul Qadir and other (2001 SCMR 1 30), Abdul Hamid and 3 others v. Syed Abdul Qadir and other (PLD 2001 SC 49) + (2001 KLR
(SC) 269), Mst. Zarina Khawaja v. Agha Mehboob Shah (PLD 1988 SC 190), Mst. Azimin Nisa Begum v.
AH Muhammad (PLD 1990 SC 382), Rashid Ahmed v. M/s. Friends Match Works (PLD 1989 SC 503) and Begum Mumtaz Riaz v. Masood Siddique and another (PLD 1992 Karachi 26).
10. The perusal of record shows that the appellant was inducted as tenant in the premises. After execution of lease agreement he issued cheques towards rent but the same were dishonoured.
The appellant has admitted in his written statement that the cheques pertained to the rent of premiss. The appellant failed to pay rent to the respondents, who are the legal heirs of deceased Mst. Shahida Khatoon. He has filed suit for declaration, specific performance and permanent injunction against them. The lease agreement does not disclose in its any clause that the premises in question have been sold to him. The appellant had admitted that he did not comply with the tentative rent order dated 14.4.1998. The Rent Controller was therefore justified to strike of the defence of the appellant.
11. In the instant case, the property is entered in the name of respondent in record. The alleged lease agreement does not confer any ownership right to appellant. Although, the said agreement is lease agreement and cannot be construed as an agreement for sale but even if it is assumed for the time being that it is an agreement of sale, then also in that event the possession is protected under Section 35-A of the Transfer of Property Act and the relationship of landlord and tenant continued to exists between the parties, even after the execution of agreement of sale. This plea gets support from the case of Mst. Azimin Nisa Begum v. AH Muhammad (PLD 1990 SC 382) wherein the Hon'ble Supreme Court has observed as under:- "For the foregoing reasons I am unable to subscribe to the conclusions arrived at by the leaned Single Judge and hold that the respondent was not entitled to protect his possession and resist ejectment, under the provisions of Section 53-A of the Transfer of Property Act and the relationship of landlord and tenant continued to exist between the parties even after the execution of the agreement sale. As admittedly the respondent had failed to tender rent to the appellant the eviction order passed against him by the Rent Controller was fully justified. I would therefore, allow this appeal, set aside the judgment of the learned Single Judge of the High Court and restore the order passed by the Rent Controller. There will be no order as to costs."
The case-law cited by the learned counsel for appellant has no relevance to the facts and circumstances of the instant case. The facts of cited cases were quite different, In those mattes, the title of landlords were under clouds and record of right was dubious. The said cases were not based on agreements.
12. In the cited case of Rehmatullah, the sale-deed was executed by landlord in favour of his nephew (the tenant) and stated that he signed the documents relating to the passport of his son but he never meant to sign disputed sale-deed. The signature on sale-deed was not denied.
13. Another case of Province of Punjab through Education Secretary and another v. Mufti Abdu!
Ghani relied upon has also altogether different facts and circumstances. The land on which structure was raised was allotted to school which belonged to appellant. The respondent was not owner of the land and as such he was not entitled to recover rent.
14. Consequently, I do not find any illegality or infirmity, in the impugned order dated 30.1.1999, which needs no interference. FRA No. 139/1999 is dismissed in limine alongwith listed application CMA No. 328/99 with no orders as to costs. Appellant shall hand over vacant physical possession to the. Respondents within 90 days from the date of this order.