ABDUL RASHEED vs MAQBOOL AHMED and others

' SARMAD JALAL OSMANY, J.---This petition impugns the order of the learned High Court of Sindh dated 3-2-2009 in C.P. No, S-1 of 2009 whereby concurrent findings of both the learned Rent Controller as well as the learned Appellate Court were maintained and the petition dismissed.

2. Briefly stated the facts of the matter are that the respondent had filed a rent case against the petitioner seeking the latter's ejectment on the ground of default in payment of rent since December, 1999. In the written statement the petitioner's stand was that he had purchased the premises from the respondent vide agreement reduced to writing for a lump sum amount of Rs,5,00 000 in pursuance of which he had already paid an amount of Rs,2,00,000 whereas the balance amount of Rs,3,00,000 was to be paid in due course of time as per terms of said agreement. Consequently, the relationship of landlord and tenant ceased to exist on the date the advance payment was made. However, the respondent had refused to honour such agreement as a result of which the petitioner had been forced to file a civil suit for specific performance thereof.

The respondent had also filed an application for deposit of arrears of rent before the learned Rent Controller which had been allowed and the same having not been complied with, the petitioner's defence was struck off and an order was passed by the learned Rent Controller to vacate the rented premises, Against such order, the petitioner filed a First Rent Appeal which was dismissed and so also, as observed above, the Constitutional Petition.

3. In support of the petition Mr. Anwar Hussain, learned Advocate Supreme Court for the petitioner has submitted that before proceeding further with the case it was the duty of the learned Rent Controller to first determine the relationship of landlord and tenant which had been denied by the petitioner and consequently passing of the tentative rent order etc. Was against the settled legal position. In support of his contention, he relied upon Khalil-ur-Rehman v. Talizar Khan (PLD 1992 SC 442) and Ghulam Rasool v. Khurshid Ahmed (2000 SCM R 632).

4. As opposed to the submissions of Mr. Anwar Hussain, Mr. Ahmadullah Farooqi, learned Advocate Supreme Court appearing for the respondent has stated that per settled law when the tenant takes up the plea of purchase of the rented premises he has to first vacate the same and file a civil suit for enforcement of the agreement to sell between the parties where after he would be allowed easy access into the premises if he prevails. In support of this submission he relied upon Jumma Khan v. Zarin Khan (PLD 1999 SC 1101) and Iqbal v. Rabia Bibi (PLD 1991 SC 242).

5. We have heard both the learned Advocates Supreme Court. It is settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails. In this regard reference can be made to Shameem Akhtar v.

Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCM R 1012) and Mst. Bor Bibi v. Abdul Qadir (1996 SCM R 877). In so far as determination of the relationship of landlord and tenant is concerned, such enquiry by the Rent Controller is of a summary nature. Undoubtedly the premises were taken by the petitioner on rent from the respondent and according to the former he later on purchased the same which was denied by the latter. Consequently, the relationship in so far as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller. In the tentative rent order the learned Rent Controller has carried out such summary exercise and decided the relationship between the parties to exist.

6. For all the foregoing reasons, we find no occasion to interfere in the order passed by learned Sindh High Court. Hence this petition being devoid of any merit is hereby dismissed and leave to appeal refused.