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Regular Second Appeal No. 85 of 1974, decided on 26th April, 1980.

---------S. 53‑A‑Ejectment from tenancy‑Landlord entering into an agreement of sale with tenant with respect of property in his occupa tion‑Held, tenant entitled to protection of S. 53‑A if he proves execution of such an agreement; payment of a considerable amount towards sale price and stipulation in agreement for exemption from payment of rent‑Such defence can be taken irrespective of suit for specific performance of contract or a declaratory suit Rent Controller competent to determine relationship of landlord and tenant between parties‑Question of title cannot be gone into by Rent Controller in eviction proceedings‑Liability to pay rent can also be determined on question of return of money advanced‑Tenant not obliged in all eventualities to file a suit for specific performance of contract‑Such suit may be filed by tenant, if liability to pay rent not exempted, to complete his title ‑Relationship of landlord and tenant will cease to exist on date of grant of decree and proprietary rights conferred on tenant‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13.

The protection under section 53‑A of the Transfer of Property Act, 1882 is available to a tenant if he proves that such an agreement .was executed and that he had paid a considerable amount towards the sale price and that there is a stipulation in the agreement for the exemption of the payment of rent. This defence can be taken irrespective of the suit for specific perform ance of the contract or a declaratory suit. The Rent Controller would be com petent to determine the facts relating to the question of such an agreement in the exercise of his jurisdiction to hold whether the relationship of landlord and tenant subsisted between the parties or not if the agreement is proved but there is no exemption from the payment of the rent the Rent Controller shall hold the existence of the relationship as in that case the liability to pay rent continues. In nutshell the question to be decided in such cases when an agreement to, sell is put, forward as a defence is whether the tenant is liable to pay the rent or not and for no other purpose. Admittedly, the question of title cannot be gone' into by the Rent Controller in eviction proceedings. The liability to pay the rent may also be determined on the question of the return of the money advanced. The tenant is not obliged in all eventualities to file a suit for the specific performance of the contract. If the liability to pay the rent has not been exempt ed, it would be essential for the tenant to complete his title by way of filing a suit fir the specific performance of the contract and in case he is granted a decree and proprietary rights are conferred on him, the relationship of landlord and tenant will cease to exist from that date even in case the Rent Controller holds that no such agreement does exist. It may be under some circumstances that a tenant may be compelled to file a declaratory suit as to the prosecution under section 53‑A of the Transfer of Property Act on the basis of the agreement and the Court dealing with the same shall decide the case on its own merits and ultimately the civil Courts may hold that he was entitled to such a protec tion. One of such situations may be if the landlord wants to cause the eviction save under the due process of law or otherwise denies the existence of an agreement that the landlord may file a declaratory suit.

Mst. Shankri and others v. Milkha Singh A I R 1941 Lab. 407; Kalimuddin Ansari v. Director, Excise and Taxation, Karachi and another P L D 1971 S C 114; Mst. Ghulam Sakina v. Umar Bakhsh and another P L D 1964 S C 456; Manzur Hussain v. Nawazish Nazir Hussain and another P L D 1976 Lab. 637; Annamali Goundan v. Venkatasami A I R 1959 Mad. 354; Carrier Telephone Industries Ltd., Islamabad v. Messrs Sohail Brothers and another P L D 1978 Lab. 1116 and Ha/iJan Muhammad v. Ghulam Ghaua and others 1976 S C M R 141 ref.

Inayalullah and others v. Shah Muhammad and others P L D 1961 Lab. 372 fol.

-----S. 100‑Second appeal‑Concurrent finding of fact‑Such finding not shown to have been vitiated on account of misreading of evidence or non‑consideration of important evidence on record‑Held such concurrent finding cannot be disturbed in second appeal.‑[Find ing of fact].

-----Ss. 13 & 15‑Ejectment proceedings‑Rent Controller and appellate authority holding that tenant had not executed rent note Proceedings before civil Court in declaratory suit or suit for specific performance, filed by tenant‑Held, have nothing to do with determination of relationship of landlord and tenant by Rent Controller-‑Question of protection of possession of such tenant to be decided by civil Court on its own merits keeping in view consideration recognised under law for grant of temporary injunction as contained in O. XXXIX, rr. 1 & 2, Civil Procedure Code (V of 1908).

Akhtar Ali Pervaiz v. Altafur Rehman P L D 1963 Lah. 390 ref.

Ch. Inayat Ullah for Appellant.

Izhar‑ul‑Haq for Respondent.

Dates of hearing : 9th, 14th and 15th April, 1980.

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