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Second Rent Appeal No.11 of 1984, decided on 2nd July, 1987.

---S.15(4)--Second rent appeal against ejectment order--Order staying execution, vacation of--Tenant admittedly committed default in payment of rent as ordered by Rent Controller and Appellate Court--Order staying execution of ejectment order granted to tenant was vacated by Appellate Court on application filed by landlord in view of default in payment of rent as per order of Rent Controller and First Appellate Court.

---S.2(c)--"Landlord", definition of--Collector of rent whether landlord--Collector of rent of premises, held, would fall within purview of definition of 18ndlord as given in S.2(c).

P L D 1982 Kar. 71 ref.

---Ss.2(f)(j), 15 & 21(1)--Transfer of Property Act, (IV of 1882), S.53-A--Sale agreement between landlord and tenant--Relationship of landlord and tenant--Proof--Sale agreement in respect of premises in dispute was executed between tenant and landlord--Tenant made part payment of sale price and subsequently filed suit for specific performance of contract of sale contending that he was willing to pay balance of sale -price and that landlord was avoiding execution of sale-deed--Requirements of S.53-A of Act (IV of 1882) having been fulfilled in all respect, tenant, held, ceased to be tenant of premises as his possession was protected in view of sale-deed and he could enjoy possession of premises as purchaser thereof--Relationship of landlord and tenant between parties was dissolved in circumstances.

P L D 1973 Quetta 1; P L D 1986 Kar. 258; P L D 1976 Lah. 637; 1984 C L C 2908; P L D 1964 Lah. 648; 1985 S C M R 1617; 1985 S C M R 554; P L D 1986 Kar. 74; 1973 S C M R 551 and PLD 1967 Kar. 372 ref.

---Ss.2(f)(j), 15 & 21(1)--Transfer of Property Act (IV of 1882), S.53-A--Agreement of sale--Dissolution of relationship of landlord and tenant--Jurisdiction of Rent Controller--- Relationship of landlord and tenant was dissolved after execution of agreement of sale between landlord and tenant of premises which was partly performed on the part of tenant--New relationship between purchaser and seller had been created by sale agreement between parties--Rent Controller, held, would have no jurisdiction to investigate whether there was any breach of sale agreement on part of tenant or that landlord was barred from claiming possession of disputed premises--Such enquiries being function of Civil Court, Rent Controller should leave parties to have their dispute settled through agency of normal Courts.

Rashid Ahmed v. Friends Match Works P L D 1986 Kar. 258 ref.

Masood Hayat Khan for Appellant.

Khalid Himayun for Respondent.

Date of hearing: 11th February, 1987.

This second appeal under section 15(4) of West Pakistan Urban Rent Restriction Ordinance, 1959, (hereinafter referred to as the Ordinance) is directed against the order dated 24-3-1984 passed by the learned First Additional District Judge, Karachi, in First Rent Appeal No.626/78 dismissing the appeal of the appellant against the order dated 28-8-1978 passed by the IV Rent Controller, Karachi, whereby he has directed the appellant to put the respondent in possession of the premises in case bearing No.5/87, Drigh Colony, Karachi.

2. That on 18-2-1977 the respondent filed an application under section 13(2) of the Ordinance against the appellant on the ground of default in payment of rent for the period commencing from August, 1968 till the filing of the application. The appellant filed written 'statement and denied the relationship of the landlord and tenant. He further stated that the respondent had entered into an agreement with the appellant on or about 29-8-1968 for the sale of her open plot of land for a total consideration of Rs.2,000 out of which he (appellant) paid a sum of Rs.1,000 as an advance. The balance sale consideration of Rs.1,000 was agreed to be paid at the time of registration of sale-deed vide Receipt dated 29-8-1968. The appellant had thus become the owner of the said plot. The appellant requested the respondent and her husband and attorney repeatedly to get the sale-deed registered but they postponed it on one or the other pretext.

3. On behalf of the respondent her husband Mansoor Ahmed appeared as a witness whereas the appellant examined himself.

It may be stated here that since the relationship of landlord and tenant was specifically denied by the appellant hence, the learned Rent Controller framed the following preliminary issue on 11-10-1977.

"Whether there exists any relationship of landlord and tenant between the parties "

Both the parties led their evidence on this issue. The learned Rent Controller after considering the evidence led on this issue and hearing the arguments of the counsel for the parties decided the abovenoted issue in affirmative on 4-3-1978. He, therefore, directed the appellant to deposit arrears of three years rent preceding to the rent application i.e. from February 1974 to Feb.1978 at the rate of Rs.20 per month. The appellant was also directed to deposit future monthly rent till the disposal of the application at the said rate. The appellant filed an application for review but it was dismissed on merits on 27-4-1978. The learned Rent Controller then framed the following regular issues:-

"(1) Whether the opponent is a defaulter in payment of rent

(2) What should the order be "

He answered the issue No.1 in the affirmative and consequently allowed the ejectment application as stated above.

3. Aggrieved by the said order of the learned Rent Controller the appellant filed an appeal being Rent Appeal No.626/78 which came up before the learned Ist Additional District Judge, Karachi, who by his impugned order dated 24-3-84 dismissed the same.

4. The appellant thereupon filed this second appeal on 12-6-1984 and it came up for hearing of Katcha Peshi on 5-8-84 when it was admitted for regular hearing. The appeal was accompanied by an application for stay, which came up for hearing on 26-8-84 when a learned single Judge passed the following order:

"26-8-84 Mr. Masood Hayat Khan Advocate

Mansoor Ahmed the husband of the respondent is present and states that the Advocate for the respondent is busy in another Court. This is an application for stay of the impugned order of ejectment. As the appeal has been admitted I think it would be proper to stay the execution of the impugned order. The appellant shall continue to deposit rent with the Controller in terms of the order passed by the Controller."

5. That on 22-1-86 an application under section 13(6) of the Ordinance (C.M.A. No.148/86) was presented on behalf of the respondent stating that the appellant had several times committed wilful default in payment of monthly rent as ordered by the Rent Controller as well as by this Court. The appellant has not filed any objection to the abovenoted application.

This case came up on 11-2-1987 for regular hearing as well as for hearing of the stay application for vacation of the stay order.

6. I have heard the arguments of the learned counsel for the appellant .on merits of the case as well as on the application made under section 13(6) of the Ordinance. The learned counsel for the appellant could not repudiate the contention of the appellant with regard to the default having been committed by him in payment of rent in time as is evident from the report of the Nazir submitted alongwith the said application for vacation of stay order. The appellant has failed to establish that he has paid the monthly rent regularly as per the order of the Rent Controller and after the admission of the appeal in terms of the order of this Court dated 26-8-84. In this view of the matter, the averments made in the application remain uncontroverted and hence I do not feel hesitant to hold that the application should succeed. It is allowed accordingly with the result that order of stay of the execution of the order of ejectment dated 26-8-84 is vacated.

7. Assailing the impugned orders, the learned counsel for the appellant made the following submissions:-

"(i) That both the Courts below have wrongly taken Mr. Maqsood Ahmed, the husband of the respondent as a duly appointed attorney. The Courts below have thus failed to consider the effect of the non-examination of the respondent in support of her case. Since the applicant did not examine herself, the ejectment application could not be allowed. He sought to support his contention by an authority of this Court reported in PLD 1982 Kar. 71.

(ii) That in the notice dated 10-10-76 addressed to the appellant by the counsel for the respondent (Ex.A/1) it is clearly mentioned that the appellant was occupying the premises as an unauthorised occupant and that he (the counsel) had instructions to file a suit for possession. The learned Rent Controller had thus no jurisdiction in the matter and the application for ejectment under the Ordinance was wrongly filed .

In this contention he referred to a decision reported in P L D 1973 Quetta 1.

(iii) That the appellant was occupying the premises by virtue of an agreement of Sale (Ex.B/1) and as such there was no relationship of landlord and tenant between the parries. In support of this connection he placed reliance on the decisions reported in P L D 1986 Kar. 258; P L D 1976 Lah. 637 and 1984 C L C 2908.

(iv) That in the application the date of commencement of the tenancy is not mentioned. It is, however, an admitted fact that subsequent to the payment of Rs.1,000/- as advance no rent was admittedly recovered from the appellant. And it clearly establishes that the respondent was not entitled to recover rent from the appellant. In this behalf the learned counsel referred to the decisions reported in P L D 1964 Lah. 648 and 1985 S C M R 1617 and 554."

8. The learned counsel for the respondent, on the other hand, supported the impugned orders. In his submission the relationship of landlord and tenant between the parties was conclusively proved through the agreement of Sale (B1), which has been filed by the respondent himself and wherein it is clearly mentioned that the appellant is the tenant of the disputed premises. He also placed reliance on the following sentence appearing in the letter (Ex.A/2) of the appellant in reply to the notice of the respondent.

"It is not at all true that I am occupying the plot in question unauthorisedly. The agreement which you have referred i.e. dated 29-8-68 itself indicates that I have been occupying the plot in question with the consent of Mst. Fehmida Bano, the allottee of the same."

The counsel then contended that the respondent had never given possession of the disputed premises to the appellant in pursuance of the agreement of Sale and as such the appellant's possession was not protected under section 53-A T.P. Act. In this connection he referred to a decision of this Court reported on P L D 1986 Kar. 74. Lastly, the counsel contended that the sale consideration was admittedly above Rs.100/- and hence, the sale of property in question could not be effected save through a duly registered sale-deed. In this behalf he referred to a decision of the Supreme Court reported in 1973 SCMR 551 and a judgment of the then High Court of West Pakistan Karachi Bench reported in P L D 1967 Kar. 372.

9. On hearing the learned counsel for the parties I find that the first abovenoted contention of the learned counsel for the appellant is without substance inasmuch as the statement on oath made by Mrs. Maqsood Ahmed to the effect that he used to collect rent on behalf of the appellant has not been challenged in cross-examination. It is by now too well established a proposition by authorities that a Rent Collector also falls within the purview of the definition of "landlord" as given in section 2(c) of the Ordinance. Therefore, PLD 1982 Kar. 71 has no relevancy to the facts of the instant case. The next three contentions raised by the learned counsel for the appellant can, I think, conveniently be dealt with and disposed of together in as much as they are inter-linked.

10. From the evidence available on record it is clearly borne out that the respondent is the owner of the disputed premises. She was also the landlady and the appellant was her tenant admittedly upto 29'8-68, the date of execution of the agreement of sale (Ex.B/1). It is also explicitly clear from the documents brought on record that the appellant was in possession of the disputed property at the time of the execution of the agreement or receipt dated 29-8-68 and he still continues to be in its possession. The said document Ex.B/1 further makes it absolutely clear that the appellant has made part payment of the sale price of Rs.1,000/- to the respondent. He also filed a suit for specific performance of contract contending that he is willing to pay the balance of the sale price and that the respondent is avoiding the execution of the sale-deed. It is, therefore, the case of the appellant that he had fulfilled the requirements of section 53-A of the Transfer of Property Act and that upon the execution of the document Ex.B/1 he ceased to be the tenant of the appellant and enjoyed the possession of the property as the purchaser thereof. Both the Courts below, as mentioned above, have held that relationship of landlord and tenant did exist between the parties as is evident even from the document Ex.B/1. Both the learned Courts below, however, appeared to have not given due consideration to the case of the appellant that in view of the agreement Ex.B/1 entered into between the respondent and himself, the appellant's possession was claimed to be protected by the provisions of section 53-A of Transfer of Property Act 1882. It was also pointed out by the appellant that admittedly after the execution of the said documents neither the respondent ever claimed rent from the appellant nor he paid the rent to the respondent since the appellant has ceased to be a tenant under her. It will require a thorough investigation into various facts as to whether there had been a breach of agreement of sale on the part of the appellant or that the respondent is debarred from claiming the possession of the disputed premises for having accepted part consideration of the agreed sale consideration and allowing the appellant to continue his possession on the disputed premises. All these enquiries and the decisions on the relevant issues would patently be beyond the jurisdiction of the Rent Controller. It would be the function of normal civil Court to go into these aspects of the matter and ultimately decide the relevant issues one way or the other.

11. Thus the contention of the appellant that in the presence of the agreement (Ex.B/1) the relationship of landlord and tenant which existed between the parties prior to the coming into existence of the said document was dissolved and a new relationship of purchaser and seller came into being. Upon reaching this conclusion, the Rent Controller is expected to stop there and leave the parties to have their dispute settled through the agency of the normal Courts. The learned Rent Controller and so also the learned first appellate authority, in my view, completely lost sight of this fact and the legal position which has been enunciated from time to time by superior Courts. The latest authority to be referred is a decision of this Court recorded by my learned brother Ibadat Yar Khan, J. in Rashid Ahmed v. Friends Match Works P L D 1986 Kar. 258 wherein at page 263 it is held as under:-

"Thus the relationship of landlord and tenant which on admission of both the parties continuing since long, is allowed to be dissolved and replaced by a new relationship of purchaser and seller. This finding is confirmed by the Ist Appellate Court also. The Rent Controller did not act on the premises of the admitted tenancy and decided to form the sale agreement as the basis of his decision. He should have stopped here and dismissed the landlord's application on account of this new relationship which had emerged as a result of the agreement Exh.5/E. But he did not stop here."

12. The upshot of the above discussion is that in the proceedings for ejectment before the learned Rent Controller the defence put up by the appellant that his possession was protected by virtue of section 53-A of Transfer of Property Act against ejectment was valid and it should have been allowed to prevail by the trial Court. Since the appellant has denied the relationship of landlord and tenant he has put himself to the jeopardy of being evicted from the premises if he fails to successfully set up his case of protected possession under section 53-A of Transfer of Property Act inasmuch as the protection provided to him by the Ordinance is no more available to him. I think it proper at this stage to refer to the following observations of my learned brother Ibadat Yar Khan, J. in the above-cited case of Rashid Ahmed, as they are with full force applicable to the facts of the instant case.

" ...Denial of relationship of landlord and' tenant by the tenant in rent proceedings would immediately dissolve all the clots which were obstructing free flow of rights enjoyed by an owner under the Transfer of Property Act. The owner in such a situation would be free to exercise all rights incidental to his ownership of the property and he would be free to throw away the occupant without any difficulty under the normal laws of the land. In my humble opinion this is a plain and straight approach to the problem."

I would also like to refer to a decision of Lahore High, Court in Hasan Abbas v. Shahid Bashir and others reported in 1980 C L C 1443 wherein it is held as under:-

"11. What emerges from the foregoing discussion is that in view of the agreement of sale in favour of the appellant, the respondents could not seek his ejectment from the disputed house by treating him as a tenant. In the circumstances, the learned Rent Controller was right in dismissing the respondents application for eviction of the appellant and the learned Additional District Judge had erred in setting aside his order and directing the appellant to vacate the said house."

13. I, therefore, allow the appeal, set aside the impugned orders of both the Courts below. The parties are, however, left to bear their own costs.

H.B.T./A-138/K

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