INAYATULLAH QURESHI Versus MUMTAZ AHMAD KHAN

Mumtaz Ahmad Khan respondent had rented his Bungalow No.ll‑E/2, Gulberg III, Lahore, to Inayat Ullah Qureshi, petitioner for a period of five years on a monthly rent of Rs.800 plus Rs.300 as maintenance charges through lease agreement Annexure 'A', dated 8‑7‑1969. Later on negotiations about the sale of said property were held between Riaz Ahmad brother of Mumtaz Ahmad Khan aforementioned and Inayat Ullah Qureshi petitioner and agreement Annexure 'B' was executed by them on 26‑4‑1976 providing a procedure for the execution of sale‑deed between them. It was agreed between the parties that the petitioner would keep on paying rent for the property in question till its transfer to him by all the co‑sharers. Riaz Ahmad Khan and his brother Zafar Ahmad Khan respondents Nos. 2 and 3 respectively appointed their brother Mumtaz Ahmad Khan respondent No.l as their attorney authorising him amongst others to negotiate sale of the property in dispute. On 8th June, 1976 a fresh sale agreement Annexure 'C' was executed by Mumtaz Ahmad Khan respondent No.1 in favour of Inayat Ullah Qureshi petitioner showing the receipt of Rs.1,50,000 as earnest money by him from the petitioner and fixing liability on the petitioner to pay interest at the stipulated rate in case the payment was delayed. It is alleged that respondent No.1 avoided to complete the bargain compelling the petitioner to file a suit for specific performance of contract in October, 1977 against the respondents (which is still pending).

2. On 13‑12‑1977 the respondents filed an ejectment petition against the petitioner on the grounds of default in the payment of rent and personal need. The petitioner denied the relationship of landlord and tenant between the parties leading to the framing of the following issue.

"Whether the relationship of landlord and tenant exists between the parties? O.P.A."

The petitioner while appearing as R.W.1 admitted that initially he occupied the premises in dispute as tenant under the respondents but maintained that with effect from 8‑6‑1976 he was occupying the premises in dispute as an owner on the basis of sale agreement Annexure 'C' and, therefore, there was no question of payment of rent to the respondents.

Malik Riaz Ahmad one of the respondents appeared as A.W.1 and stated that the petitioner had not paid any rent to them since May 1976. He produced rent agreement Exh.A.3 in support of his contention. As regards the sale agreement he admitted its execution but stated that it had come to end on the failure of the petitioner to make payment within the stipulated period.

3. The learned Rent Controller observed that even though a sale agreement had been executed between the parties, the petitioner was not absolved of his liability to pay rent to the respondents in the absence of any express condition incorporated therein in that behalf. He, therefore, held that the relationship of landlord and tenant existed between the parties and that the default on the part of the petitioner in the payment of rent stood established from 8‑6‑1976. In consequence he accepted the ejectment petition and ordered eviction of the petitioner vide his order, dated 26‑12‑1983.

Feeling aggrieved the petitioner filed an appeal which was dismissed by the learned Additional District Judge, Lahore on 17‑3‑1985.

Hence this writ petition.

4. It is contended that since the agreement to sell executed between the parties on 8‑6‑1976 was replaced by a fresh contract, dated 8‑6‑1976, performance of the original contract could not have been forced upon the petitioner. Furthermore, the petitioner being in possession as owner in part performance of agreement to sell could validly resist his ejectment. Learned counsel appearing on behalf of the petitioner has cited some reported and unreported judgments in support of the above contentions.

5. The respondents have vehemently contested the petition. Learned counsel appearing on their behalf has also cited a number of precedents in support of their case. They have not denied the execution of sale agreements with the petitioner but state that since no stipulation had been made about the continuation or cessation of tenancy prior to the execution of contract for sale of property the petitioner shall be deemed to be a tenant holding over liable to pay rent as before.

6. I have heard the learned counsel for the parties at length and have also examined the case law on the point in controversy in depth. The petitioner does not dispute that he initially occupied the property in dispute as a tenant in pursuance of agreement Exh.A.3 (Annexure 'A') on payment of Rs.1,100 per month (Rs.800 as rent and Rs.300 as maintenance charges). Clause (6) of the agreement Exh.A.2, dated 26‑4‑1976 provided that Inayat Ullah shall keep on paying the house rent till it was finally transferred to him by the owners. In the sale agreement Exh.A‑I (Annexure'C'), dated 8‑6‑1976 no express stipulation was made about continuation or cessation of tenancy between the parties. Non‑payment of rent by the petitioner after 8‑6‑1976 to the respondents is not denied. The suit for specific performance of the contract filed by the petitioner is still pending and its fate is not known. In Allah Yar etc. v. Additional District Judge etc. 1984 S C M R 741 it was held that till Allah Yar etc. (the tenants) were able to obtain a decree from civil Court in their suit for specific performance of agreement to sell, they could not have lawfully denied relationship of landlord and tenant and their refusal to pay rent for a long period could not be treated as bona fide. In Khusro Alam Hydri v. Mst. Iqbal Begum 1981 C L C 347 it was held that in the absence of any stipulation about the continuation or cessation of tenancy prior to the execution of contract for sale of property, tenant shall be deemed to be a tenant holding over liable to pay rent to the landlord and provision of section 53‑A of Transfer of Property Act, 1882 would not give any protection to the tenant.

In Mian Muhammad Abdullah v. District Judge, Sahiwal and 6 others PLD 1985 Lah. 467 it was held that jurisdiction of the Rent Controller was not ousted during pendency of suit for specific performance of contract and that protection for part performance of contract was not available in the absence of contract in writing providing for cessation of relationship of landlord and tenant between the parties. Kh. Ammar Hussain v. Muhammad Shabbir‑ud‑Din Khan P L D 1986 Kar. 74 is about the protection granted by section 53‑A of Transfer of Property Act, 1882. It was held that a sale agreement in the absence of any provision determining relationship of landlord and tenant between the parties would not authorise non‑payment of rent by the tenant from the date of entering into such agreement. It was further held that a tenant would continue to be tenant unless and until relationship was determined by agreement, by decree of Court or by operation of law. In Muhammad ldrees v. Additional District Judge and others 1986 C L C 590 it was held that till such time that an agreement to sell was specifically enforced in favour of the tenant by a competent Court he was bound to pay rent and no protection under section 53‑A of Transfer of Property Act would be available to him and exemption in the payment of rent claimed by him would be misconceived.

7. Keeping in view the above circumstances, it had been rightly held by the learned Rent Controller and the learned Additional District Judge that in the absence of any express or implied condition in the agreement to sell about the continuation or cessation of rent agreement the status of the petitioner would remain as that of tenant with liability to pay rent to the landlord. The non‑payment of rent by the petitioner to the respondents is not denied. The suit for specific performance filed by the petitioner is still pending and its fate is not known. Accordingly, I do not feel persuaded to interfere with the concurrent finding arrived at by the learned Rent Controller and the learned Additional District Judge about the status of the petitioner and dismiss the writ petition with costs.

This order will be without any prejudice to the rights of the parties in the suit for specific performance of contract.

H.B.T./I‑62/L Petition dismissed.