JUMMA KHAN Versus ZARIN KHAN

MUNAWAR AHMED MIRZA, J.‑‑This petition for leave to appeal is directed against judgment dated 17‑7‑1998 passed in F.A.O. No.82 of 1998 by learned Judge in Chamber of Balochistan High Court, Quetta.

2 Facts leading to filing of present petition briefly mentioned are. that respondent on 19‑6‑1996 filed application under section 13 of Balochistan Urban Rent Restriction Ordinance (VI of 1959) before Civil Judge‑cum‑Rent Controller, Quetta, seeking ejectment of petitioner from shop bearing Municipal No.9‑13/36‑A situated at Jinnah Road, Quetta, on the ground of personal bona fide requirement and causing nuisance. Petitioner contested the proceedings and filed written statement on 13-8-1996. It was pleaded that relationship of landlord and tenant did not exist between the parties because respondent-landlord executed an agreement to sell demised premises for a consideration of Rs.10,00,000 (Rupees ten lacs) out of which Rs.8,00,000 (Rupees eight lacs) had already been paid to him and final transfer was to be affected on 20-12-1994. Presently civil suit claiming specific performance of above agreement was pending adjudication against respondent. Replication to written statement was submitted on 2-9-1996 wherein respondent-landlord unequivocally refuted execution of agreement for sale. It was averred that sale-agreement has been forged by the petitioner for mala fide motives to obtain unlawful gains. Learned Rent Controller on 21-8-1996 framed following issues and gave parties opportunity of leading evidence-

"(1) Whether there exists relationship of tenant and landlord between the parties?

(2) Whether the shop in question reasonably and in good faith required by the applicant for his personal bona fide need and occupation in order to start his own business"

(3) Whether the applicant is entitled for relief claimed for?

(4) Relief?" ,

3. On the appraisement of evidence, adduced by the parties, learned Civil Judge-II-cum-Rent Controller, Quetta, by means of judgment dated 29-4-1998 gave positive finding regarding existence of relationship and directed that petitioner should hand over vacant possession of shop in dispute to respondent within four months.

Aggrieved from above decision petitioner preferred F.A.O. No.82 of 1998 before High Court of Balochistan, Quetta. It may be seen, that questions agitated on behalf of the parties during hearing of main case were exhaustively discussed and re-evaluated by learned Judge in Chamber of High Court and eventually dismissed the appeal by means of judgment dated 17-7-1998; which has been assailed through present petition for leave to appeal.

4 Syed Ayaz Zahoor, Advocate Supreme Court for petitioner stressed hard that shop in dispute had been sold by respondent-landlord through sale agreement dated 20-1-1989 and substantial amount was already paid to him, as such eviction proceedings were not maintainable. Learned counsel canvassed that the suit praying for specific performance of sale agreement concerning suit property was pending adjudication before Civil Court, therefore, ejectment proceeding need to be suspended.

5. Learned counsel for respondent vehemently opposed the petition contending that sale-agreement was forged by the petitioner for taking undue and unlawful advantage. He maintained that eviction of respondent was not affected merely because misconceived civil suit has been instituted in pursuance baseless claim.

6. We have carefully perused entire record in the light of above submissions. It, is an admitted feature of the case that petitioner was occupying the shop in dispute as tenant. This fact is also incorporated in the sale-agreement dated 20-1-1989. Tile question about genuineness or otherwise of said sale agreement is obviously dependent upon final determination by Civil Court of competent jurisdiction. Air this stage the validity of sale agreement relied upon by the petitioner/tenant is vigorously challenged by respondent/landlord Therefore, till the time that petitioner is able to establish hi; claim for specific performance on the basis of alleged sale-agreement, respondent-landlord would continue to enjoy the status of being owner and landlord of the premises. Relationship between the parties till such time would be regulated by the terms of tenancy. This Court in similar circumstances while examining dispute between the landlord and tenant where the ejectment proceedings were contested on the ground of sale-agreement in case of Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382 has opined that ejectment proceedings could not be resisted by taking shelter under section 53,,A of the Transfer of Property Act Relevant observations read as under:-

"For the foregoing reasons I am unable to subscribe to the conclusion arrived at by the learned 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 of 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 above view has been reiterated in case Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242. Relevant observations read, thus:

"Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time--even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate--though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17, Allah Yar and others v. Additional District Judge and others f 984 SCMR 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1."

Similarly following view has been taken in case `Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877:-

"However, the Judge in Chambers of the High Court has taken pain and elaborately discussed the issues and assessed the value of the agreement deed and other documents. He has referred to various authorities in that respect and has come to the conclusion that a tenant cannot be allowed to retain his possession on such agreement till decision of their title by a Civil Court of competent jurisdiction. We do not find any defect with his observations and conclusion. The factum of default of the payment of the rent and the requirement of the landlord has been proved. We have neither been persuaded nor satisfied that any defect lies with the judgment of the Judge in Chambers of the High Court which may call for interference of this Court in its appellate jurisdiction. The appeal fails which is dismissed accordingly with costs."

7. On the basis of dictum laid in aforequoted reports we unhesitatingly hold that petitioner cannot legitimately resist maintainability of ejectment proceedings pending against him on the ground of sale-agreement. Suffice it to observe that genuineness or otherwise of such agreement and its consequential effort will be independently determined by the Civil Court. However, in the instant case we are satisfied that issue regarding relationship of tenancy and personal bona fide requirement of respondent-landlord has been correctly decided by the Courts below. There does not appear any material defect or legal infirmity with regard to conclusions drawn in the impugned judgments. Accordingly the petition having no merit is dismissed and leave to appeal is refused.

M.B.A./J-31/S Petition dismissed.