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Civil Petition for Special Leave to Appeal No. 55 of 1984, decided on 18th January, 1984.

(On appeal from the Order of the Lahore High Court, Lahore, dated 7th January 1984, in Writ Petition No. 5457 of 1983).

‑‑‑ Ss. 13 & 13‑A‑‑‑Transfer of Property Act (IV of 1882), S. 53‑A Landlord purchasing property through registered deed from previous owner‑‑Occupants, sitting tenants of property ‑‑ Landlord serving notice under S. 13‑A‑‑‑Eviction petition on ground of default in pay ment of rent and personal use‑Sitting tenants raising plea that one of them having entered into agreement to purchase property from previous owner through a receipt of payment of earnest amount were entitled to retain possession and there was thus no relationship of landlord and tenant between parties‑ Genuineness o1 said receipt of earnest money disputed from landlord's side‑Tenants already filed suit for specific performance so as to establish genuineness, validity and effect of receipt‑Courts below rendering concurrent findings that even if husband of previous owner/landlady executed receipt in token of agree ment to sell property, there was no proof that he was authorised by his wife to do so‑Neither Rent Controller nor appellate Court finally deciding question of genuineness or otherwise of receipt produced by tenants‑Question of fact, in that behalf still open‑Purchase by registered deed by landlord not denied by tenants throughout proceed ings and even before Supreme Court‑Tenants were not entitled to retain possession in any other capacity than as tenants of such land lord‑‑Reliance by tenants on S. 53‑A, Transfer of Property Act, 1882, not helpful‑Tenants cannot deny relationship of landlord and tenant till they were able to obtain a decree from Civil Court about genuine ness, validity and effect of said receipt‑Failure of tenant to pay rent for a long period could not be treated as bona fide‑Tenants were rightly adjudged as tenants and defaulters in payment of rent in circumstances‑Decision in hierarchy of forums under West Pakistan Urban Rent Restriction Ordinance 1959 no bar on adjudication of civil suit already filed by tenants‑Time for making application before Rent Controller for obtaining interim relief for protection of tenants possession not granted on ground of landlord having been adjudged as entitled to receive rent and issue of relationship of landlord and tenants having been decided against tenant.

A. K. Dogar, Advocate Supreme Court and Sheikh Abdul Karim, Advocate -on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 18th January, 1984.

Leave to appeal has been sought from judgment dated 7‑1‑1984 of the Lahore High Court ; whereby a Constitutional Petition filed by tenants calling in question their ejectment under the Punjab Urban Rent Restriction Ordinance (VI of 1959), was dismissed.

The respondent is (3/4) purchaser of the property in dispute through registered deed. The petitioners were sitting tenants therein. They were duly served with a notice under section 13‑A of the Ordinance notwithstand ing the same rent admittedly was not paid to the respondents who instituted an eviction petition on ground of default in payment of rent and personal use. The plea from the tenants (petitioner side) was that one of them having entered into an agreement to purchase the property from its previous owner through a receipt of payment of the earnest amount were entitled to retain the possession therefore there was no relationship of landlord and tenant.

Although the genuineness of the receipt in question was also disputed from the landlord's side, the learned Rent Controller without going into that question held that there was no proof that it was executed by duly cons tituted attorney of the previous owner/landlord who having no power of, attorney to sell, it (the receipt) was therefore of no help to the tenant. Accordingly the issue was decided against the petitioners. As admittedly rent bad not been paid and that too for a considerable period, the ejectment was ordered without any further proceedings regarding formal proof of non payment of rent. The learned First Appellate Court affirmed the finding of the learned Rent Controller.

Aggrieved by the afore noted orders passed by the Rent Controller and the Appellate Forum the petitioners‑tenants filed a Constitutional Petition in the High Court with the plea, on the basis of the aforementioned receipt that by virtue of section 53‑A of the Transfer of Property Act, they were entitled to retain the possession notwithstanding the admitted fact that respon dents‑have purchased the property through a registered deed regarding which they were served due notice. This plea was rejected by the High Court on the findings that the receipt in Question "has been duly considered and dis carded by the learned Rent Controller and the learned Additional District Judge. The reasons which prevailed with them in doing so are not perverse or violative of any principle of law". Accordingly, the Constitutional petition was dismissed. The petitioners have now sought special leave of this Court to appeal against the judgment of the High Court.

It is true that neither the learned Rent Controller nor the learned Appellate Court finally decided the Question of genuineness or otherwise of the receipt produced from the petitioner‑side. The question of fact in this behalf is still open. They have, however, rendered concurrent findings that even if the husband of the previous owner/landlord executed the receipt in token of an agreement to sell the property, there was no proof of the fact that he was authorised by his wife to do so. And because the purchase by the respondents through registered deed was not denied therefore, the petitioners were not entitled to retain the possession in any other capacity than as tenants of the respondents the purchase by whom through registered deed is not being disputed even now. Reliance of the learned counsel on section 53‑A of the Transfer of Property Act in the circumstances of this case is of no help to the petitioners. According to him they have filed a suit for specific perform ance so as to establish the genuineness, validity and effect of the so‑called receipt. Till they are able to obtain a decree from the Civil Court, they could not have lawfully denied the relationship of landlord and tenant. In this context their failure/refusal to pay the rent for a long period cannot be treated as bona fide. In this behalf, it may further be mentioned that according to the learned counsel the suit was filed on 28-11‑1981, nearly a year after the petitioners had become aware of the sale through the registered deed it favour of the respondents. They have rightly been adjudged as tenants as also defaulters in payment of rent.

Learned counsel for the petitioners requested for a clarification that the decision in the hierarchy of forums under the Rent Restriction Law shall not bar the adjudication of the Civil Suit already filed by the petitioners. In view of the fact that the genuineness of receipt, its validity and if these two aspects thereof are established affirmatively by the petitioners then its effect on the question of specific performance vis‑a‑vis the previous owner, has been left open by these forums. Therefore, these orders shall not bar the adjudication of the civil suit so far as the said aspects of the receipt are concerned.

Learned counsel also sought time so as to make an application before the Rent Controller for obtaining interim relief for the protection of petitioner possession. This prayer is against the rule laid down by this Court in the case of Rehmatullah v. Ali Muhammad and another (1983 S C M R 1064). The respondents have been adjudged in these proceedings as entitled to receive rent without any doubt. Regarding their right to do so the issue of relationship of landlord and tenant has rightly been decided against the petitioner. For the time being accordingly they have no right to retain the possession after the eviction orders have been passed m duly constituted proceedings under a special law. The stay of eviction by a Civil Court even as interim measure would obviously be in aid of injustice. The prayer made by the learned counsel in this behalf therefore, is refused.

With the foregoing observations this petition is dismissed.

M. Z. M. Petition dismissed.

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