MUHAMMAD ANWAR KHAN Versus ASGHAR ALI

This judgment will dispose of civil revision (C.R. No.402‑D of 1980) filed by Sardar Mohammad Anwar, petitioner, against the judgment of a learned Additional District Judge of Lahore dated 18‑3‑1980 dismissing his appeal filed against the order of Mr. Badar‑uz‑Zaman, Civil Judge, Lahore, dated 13‑3‑1975 dismissing his civil suit and also against the said order of the learned Additional District Judge dismissing his application for the amendment of the plaint and constitutional petition (Writ Petition No. 8739 of 1980) filed by Sardar Mohammad Anwar, petitioner, against a separate order of the same learned Additional District Judge, Lahore, dated 18‑3‑1980, dismissing his appeal filed against the order of Syed Shehbaz Hassan Gardezi, Rent Controller, Lahore, dated 7‑1‑1978 ordering his eviction from Bungalow No.21‑B, Gulbarg II, Lahore.

2. The facts leading up to both these petitions are that on 22‑2‑1972, Mian Asghar Ali, respondent, executed an agreement for sale in favour of Sardar Mohammad A nwar, petitioner, agreeing to sell his Bungalow No. 21‑B, Gulberg II, Lahore, to the petitioner for a consideration of Rupees one lac forty thousand (Rs.1,40,000). The agreement inter alia recited that Rs.5,000 had been paid by the petitioner as earnest money, that a sum of Rs.20,000 would be paid as advance to the respondent by 5th March, 1972, on which date possession' of the bungalow would be given to the petitioner, that another sum of Rs.15,000 would be paid as advance to the respondent by 5th April, 1972, that the balance sum of Rs.1,00,000 would be paid to the respondent at the time of the execution and registration of the sale‑deed, that the sale‑deed would be executed by the respondent within six months from the date of execution of the agreement, that the respondent would obtain the necessary clearance certificates showing that taxes and bills on the bungalow had been paid, that the petitioner would have the right of paying, out of the balance sale price, the sum of Rs.50,000 to the mortgagee Bank, which was ,due and payable by the respondent to the‑ Bank on the mortgage of the bungalow, that the petitioner would execute a rent note in favour of the respondent agreeing to pay rent for the said bungalow at Rs.700 per mensem, so that if the petitioner did not fulfil the agreement within six months, rent would be claimed at the said rate and if the petitioner delayed fulfilment thereafter, at Rs.1,400 per mensem, and that if the petitioner defaulted in the fulfilment of the contract, the earnest money of Rs.5,000 would be forfeited and the petitioner would be duty bound to deliver back the possession of the bungalow to the respondent.

3. It is the case of both the parties that the possession of the bungalow was taken by the petitioner on 22‑2‑1972, that advance of Rs.20,000 was paid by the petitioner to the respondent before the 5th March, 1972, but as regards the advance of Rs.15,900 to be paid by the petitioner to the respondent by 5th April, 1972, it is the case of the petitioner that this amount was so paid, but the respondent only admits that a sum of Rs.10,000 was paid.

4.. On 17‑8‑1972, the respondent served a notice on the petitioner to complete the transaction, failing which, he would become liable to pay rent according to the terms of the agreement. In the said notice it was mentioned that he had only paid Rs.30,000 towards the two advances, instead of Rs.35,000. On 21‑8‑1972, the petitioner replied back to state that he was ready to complete the transaction and that he had paid the sum of Rs.35,000 towards the two advances. On 23‑8‑1972, the respondent sent a notice to the petitioner starting that the agreement stood terminated for default of performance on the part of the petitioner and that earnest money of Rs.5,000 stood forfeited to him. On 30‑4‑1974, the respondent served another notice on the petitioner reiterating the facts of the earlier notice and stating that the amount of Rs.30,000 paid by the petitioner as advance would stand adjusted against the rent at the rate of Rs.1,400 per mensem from 5‑3‑1972 to 30‑4‑1974.

5. On 23‑5‑1974, the respondent filed an eviction petition against the petitioner claiming default in the payment of rent. He admitted that he had entered into an agreement for sale with the petitioner in respect of the disputed bungalow for a sum of Rs.1,40,000 against which he had received Rs.5,000 towards earnest money and Rs.30,000 towards advance, instead of Rs.35,000 which was to be paid, and after adjusting Rs.5,000 towards earnest money forfeited in his favour Rs.4,200 as rent for the period 22‑2‑1972 to 22‑8‑1972 at the rate of Rs.700 per mensem and the balance of Rs.29,400 as rent for the period 23‑8‑1972 to 22‑5‑1974 at the rate of Rs.1,400 per mensem, a sum of Rs.3,600 was outstanding as arrears of rent upto 22‑5‑1974. Accordingly; his ejectment was sought on the ground of default in payment of this rent.

6. The petitioner denied the facts stated in the above petition. He denied the relationship of landlord and tenant between himself and the respondent. He also objected to the jurisdiction of the Rent Controller to decide the matter which related‑ to the terms and conditions of agreement for sale dated 22‑2‑1972. He pleaded that he had become the owner of the bungalow by operation of law. He also admitted the execution of the agreement dated 22‑2‑1972 and did not dispute its terms and conditions, except assert that the payment of the balance sum of Rs.1,00,000 was subject to the clearance of all the dues by the respondent, including the redemption of the bungalow which was mortgaged with a Bank. According to the petitioner, it was not done by the respondent and he had, therefore, become entitled to get the sale‑deed registered, after making payment of the mortgage amount to the bank and clearing all other dues. The petitioner in his written statement also admitted the receipt of notices ‑ dated 17‑8‑1972 and 23‑8‑1972 given to him by the respondent, but denied the receipt of notice dated 20‑9‑1972. Since the petitioner considered himself the owner of the bungalow, due to breach of the terms of the agreement by the respondent, he did not consider himself liable for the payment *of rent to the respondent and denied the default in payment of rent.

7. In the meantime on 18‑6‑1974, the petitioner filed a suit seeking a declaration to the effect that he was in possession of the disputed bungalow by virtue of the agreement for sale dated 22‑2‑1972, because of the failure of the* respondent to get the sale‑deed registered which he was entitled to get completed and as a consequential relief he prayed that the respondent be restrained from interfering with his possession over the disputed bungalow ‑or from alienating the same to any third person.

8. The respondent contested the above civil suit filed by the petitioner. The respondent pleaded that the suit was not correctly valued for the purposes of court‑fees and jurisdiction, that the correct value for the said purpose was 1,40,000 and that the suit was not maintainable in its present form. The respondent denied the title of the petitioner over the disputed property and asserted that he himself was its owner and that by committing the breach of the agreement dated 22‑2‑1972, the petitioner according to its terms and conditions had become a tenant under him.

9. The learned Civil Judge in the civil suit framed the following preliminary issues:‑

(1) Whether the suit has been correctly valued for the purposes of court‑fee and jurisdiction? if so, what is the correct valuation? OP Parties.

(2) Whether the suit is not maintainable in its present form? OP Respondent.

10. On 13‑3‑1975, the learned Civil Judge dismissed the civil suit filed by the petitioner. He decided issue No. 1 in favour of the petitioner and issue No.2 in favour of the respondent.

11. On 31‑5‑1975, the petitioner preferred an appeal before the District Judge, Lahore; against the above decision.

12. In the meantime, in the eviction proceedings filed by the respondent against the petitioner, the parties were leading evidence on the following issues:‑

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

(2) Whether the petition is not competent?

(3) Whether the petitioner has become owner in possession by operation of law?

13. On 7‑1‑1978, the learned Rent ~ Controller, Lahore, decided all the three issues in favour of the respondent and ordered the eviction of the petitioner.

14. Being aggrieved by the above decision, the petitioner preferred an appeal against the same before the District Judge, Lahore.

15. Both the appeals of the petitioner were ultimately marked to Mr. Nusrat Hussain Qureshi, Additional District Juke, Lahore, who heard the same and fixed 10‑3‑1980 for orders. On the said date the petitioner moved an application under Order VI, Rule 17, C.P.C. in the appeal filed by him against the judgment of the learned Civil Judge in the declaratory suit, that he be permitted to amend the plaint, so as to convert the suit for declaration and consequential relief into one for specific performance of the contract. Accordingly, arguments were heard on this application. Ultimately on 18‑3‑1980, the said learned Additional District Judge, Lahore, dismissed both the appeals filed by the petitioner.

16. Being aggrieved by ‑both the above judgments, the petitioner filed Civil Revision No.402‑D of 1980 and constitutional petition (Writ Petition No.8739‑80) against the same, which are now before me for disposal.

17. I have heard the arguments of the learned counsel for the petitioner and the respondent in both the civil revision and the constitutional petition and have perused the record.

18. I will first take up Civil Revision No.402‑D of 1980, which relates to the matter arising out of the civil suit filed by the petitioner. The pivotal question that calls for decision is whether the application f the petitioner for the amendment of his plaint should have been allowed by the learned Additional District Judge. In this connection, learned counsel for the petitioner has cited Mst. Ghulam Bibi and others v . Sarsa Khan P L D 1985 S C 345. In this case the plaintiffs had filed a suit for declaration that they were the owners in possession of the land in dispute and for injunction to restrain the defendants from interfering with their possession. The frame of the suit was contested by the defendants, on the basis that a civil suit for declaration and injunction was not maintainable. Accordingly, an issue in that respect was framed, with others, by the trial Court. The trial Court decided the issue regarding the frame of the suit against the defendants and decreed the suit on the other issues. The defendants preferred an appeal and succeeded on the issue regarding the form of the suit. In second appeal, an application was filed by the plaintiffs to amend the plaint, but it was rejected on the ground that it was a belated request and, if allowed, it would cause injustice and injury to the oppositV party, particularly when an objection was taken in the written statement by the defendants but no steps were taken to rectify the error. The plaintiffs then went up in appeal in the Supreme Court, which allowed the amendment. In the said case the Supreme Court approved the view of the learned Single Judge of the High Court that generally delay alone in applying for amendment on expiry of period of limitation did not constitute a ground for refusing amendment, but as regards the view of the learned Single Judge that the plaintiffs were negligent or that the application for amendment was not made bone fide, they came to the contrary view and allowed .the amendment. The Supreme Court further observed, notwithstanding the question of negligence etc., that delay alone in applying for the amendment was not a determining factor for accepting an application in that behalf. It came to the conclusion that under Order VI, Rule 17, C.P.C., the Court had to determine two matters, first, whether the amendment was necessary for the purposes of determining the real questions in controversy and second, whether to allow the said application. It came to the conclusion that with respect to the first matter, the Court had discretion to allow the amendment, depending upon whether it considered the amendment to be necessary for the purposes of determining the real questions in controvery, but that in respect of the second, once the Court came to the finding that the amendment was necessary for the purposes .of determining the said questions, it became the duty of the Court to permit the amendment. On the question whether the conversion of the suit from one for declaration and consequential relief to ‑ that for specific performance was one for the purposes of determining the real questions in contrdvery, the Supreme Court answered the question in the affirmative. As regards the second, it automatically stood answered affirmatively. This ruling is on all fours with the present case. Even otherwise, the Supreme Court in a number of cases has held that limitation does not bar a Court from allowing an amendment, if otherwise it is in accordance with the provisions of Order VI, Rule 17, C.P.C.. see Karamat Ali v. Muhammad Yousaf Haji P L D 1963 S C 191, Ahmad Din v. Mohammad Shafi P L D 1971 S C 762 and Syed Akhlaq Hussain v. WAPDA 1977 S C M R 284. The amendment was necessary in the instant case for determining the real questions in controversy between the parties and I would hold accordingly.

19. This revision petition is, therefore, accepted and the decisionlg of the learned Additional District Judge dated 18‑3‑1980 passed in Civil Appeal No.122 of 1975, both in the main case and on the petition for amendment of the plaint, is set aside. The file of the case is remanded to the learned Civil Judge, who shall permit the petitioner to amend his plaint in accordance with the petition for amendment filed by him and to pay the necessary deficient. court‑fees on the amended plaint, where after the learned Civil Judge shall proceed with the suit from that point onward. Since the suit is a very old one, the Civil Judge shall take special steps to dispose of the same within six months.

20. I now take up the constitutional petition (Writ Petition No.8739 of 1980) filed by the petitioner. It is an admitted position that the petitioner was inducted into the disputed property under the terms of the Agreement for Sale dated 22‑2‑1972. In the eviction petition filed by the respondent, the petitioner was, therefore, entitled to seek protection of his possession under section 53‑A of the Transfer of Property Act, 1882. If any authority is required in this respect, Muhammad Idrees v. Additional District Judge, Lahore 1986 SCMR 988 may be cited. Under the said section 53‑A, the respondent, as] the ostensible transferor of the disputed property, was debarred from enforcing against the petitioner, who was the ostensible transferee, any right in respect of the property of which the petitioner has taken possession, other than a right expressly provided by the agreement for sale. Since the petitioner's possession was protected, the Rent Controller had no jurisdiction to secure the possession for the respondent in any manner. The "right expressly provided" to the respondent by the terms of the agreement for sale was to claim rent from the petitioner, if the petitioner delayed the execution of the agreement. The right to forfeit the earnest money and to claim back the property were only available in the event of a breach of the agreement. The "right expressly provided by the terms of the contract", as stated in section 53‑A of the Transfer of Property Act; obviously refers to those rights provided in the contract which are available, so long as the contract is alive and has not come to an end. Where there is a breach, the law itself provides the necessary remedies, apart from those which may specially be provided in the contract. The respondent under para 5 of the agreement for sale was entitled inter alia to receive rents at particular rates for the delayed period. This was a right expressly provided in the contract, which he could have claimed. The right to secure possession of the property was only' available on the breach of the agreement. Through the media of the eviction petition, the respondent could not have claimed eviction as a 'right expressly provided by the terms of the contract' Even otherwise, when the Rent Controller passed his order of eviction against the petitioner on 7‑1‑1978, the appeal of the petitioner against the dismissal of his civil suit was pending before the Additional District Judge at Lahore. The Rent Controller should have waited for the decision. Had he done so and passed the final order after the petitioner's appeal against the dismissal of the civil suit had been dismissed, the Rent Controller may have found some justification to say that the petitioner had lost the protection of his possession, by the dismissal of his appeal. I do not think that the Rent Controller was justified in deciding the case, without waiting for the decisions of the appeal filed by the petitioner against the dismissal of his civil suit for declaration and injunction. The decision of both the lower Courts is, therefore, illegal and deserve to be quashed.

30. The writ petition is accepted and the judgment of the learned Additional District Judge, Lahore, dated 18‑3‑1980 and that of the Rent Controller, Lahore, dated 7‑1‑1978 are set aside. The eviction petition is remanded to the Rent Controller to await the decision in the civil suit, before delivering the judgment afresh on the respondent's petition.

A . A . / M‑495/ L Petition accepted