SHAKEEL AHMAD Versus NASEEM AKHTAR

1. Appellant Shakeel Ahmed has assailed the orders dated 18‑8‑1993 and dated 5‑1‑1994 passed in Rent Case No. 151/1993 by IIIrd Senior Civil Judge and Rent Controller, Karachi (East).

2. Parties in their pleadings were agreed, that the property in litigation bearing No. FN/57/8, situated in Malir Extension Colony, Khokhrapar, Karachi East, is in possession of appellant Shakeel Ahmed as tenant of the same. It is also an admitted position that during continuance of the tenancy between the parties, they entered into a Sale Agreement dated 15‑11‑1990 by which respondent Mrs. Naseem Akhtar agreed to sell to appellant Shakeel Ahmed the entire property bearing No. FN/57/8, for an amount of Rs.3,00,000 (rupees three lac) besides amount of the loan payable to the House Building Finance Corporation. Appellant paid to the respondent at the time of execution of the Sale Agreement an amount of Rs.50,000 as earnest money, while Rs.1,25,000 were agreed to be paid within 24 months from the date 20‑12‑1990. Rent of the ground floor, first floor and second floor of the building agreed to be sold, was to be realized by Mst. Naseem Akhtar till she remained in Pakistan. After her departure, her representative was to collect rent of the ground and second floor of the said building, but not of its first floor which was in possession of appellant Shakeel Ahmed. Monthly rent of the premises in litigation viz., first floor of building bearing No. FN‑57/8, Malir Extension Colony, Karachi, was Rs.1,000 p.m. as per the respondent, and Rs.850 p.m. as per the appellant.

3. In the background of said facts, respondent Naseem Akhtar filed Rent Case No. 151/1993 for eviction of the appellant from the demised premises on the sole ground of default in payment of rent since November 1990. In respect of the Sale Agreement dated 15‑11‑1990 the respondent in her rent application stated that Rs.1,25,000 agreed to be paid to her, had not been paid and that loan of HBFC was also not cleared and the same had risen to Rs.53,212 from Rs.30,000. She took plea that the sale agreement dated 15‑11‑1990 stood cancelled for non‑compliance of its conditions and the amount paid under it as earnest money stood forfeited.

4. The rent application was contested by the appellant, who in his written statement took stand that he was tenant of the premises in litigation since before 1985 and that the rate of rent agreed between him and the previous owner was Rs.600 p.m. which was later on enhanced to Rs.850 p.m. Appellant claimed to have paid to the respondent in pursuance of the agreement dated 15‑11‑1990 Rs.50,000 as earnest money on 15‑11‑1990, Rs.1,25,000 on 20‑12‑1990 and Rs.75,000 during a period of 24 months from 20‑12‑1990. Appellant showed his willingness to pay balance of the purchase price, if sale‑deed was executed in his favour.

5. During pendency of the Rent case, the respondent moved on 18‑5‑1993 an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 (hereafter mentioned as Ordinance 1979), for ordering the appellant to deposit in Court the arrears of rent for the period November 1990 till 18‑5‑1993 and the future monthly rent at the same rate. Said application was contested by the appellant who filed objections.

6. After hearing learned counsel for the parties learned IIIrd Senior Civil Judge and Rent Controller, Karachi East, under the impugned order dated 18‑8‑1993 ordered deposit of rent in the following words:‑‑

7. "Under these circumstances, I order the opponent to deposit the arrears of rent at the rate of Rs.850 only from November, 1990 to July 1993 amounting to Rs.28,050 only within 90 days from the date of this order. The opponent is further directed to deposit the rent of each current month at the same rate on or before the 10th day of each following month. Thus the rent for the month of August 1993 be deposited on or before the 10th day of September 1993 and so on."

8. On 1‑12‑1993 the appellant moved an application for recall of the order dated 18‑8‑1993. He had earlier moved an application on 14‑11‑1993 praying that the rent application be rejected under Order VII, rule 11 of C.P.C. Under the impugned order dated 5‑1‑1994, the Rent Controller declined to recall his earlier order dated 18‑8‑1993 and took view that inspite of passing of the tentative rent order the appellant had failed to comply with the same. While taking such view, the Rent Controller struck off defence of the appellant and ordered the respondent to be put in possession of the premises in litigation within 60 days. He also dismissed the application moved under Order VII, rule 11, C.P.C. by the appellant. Hence this appeal.

9. Mr. Mirza Muhammad Kazim, counsel for the appellant argued that there was no relationship of landlord and tenant between the parties after execution of the sale agreement between them on 15‑11‑1990. Leered counsel for .the appellant was of the view that the appellant was protected from being evicted by virtue of the provisions contained in section 53‑A of Transfer of Property Act. It was next argued that a substantial amount had been paid towards price of the property in litigation by the appellant to the respondent. Learned counsel also argued that it was customary for the respondent not to issue receipts in respect of the rent received by her. It was added that the appellant was not in arrears and he had not defaulted in payment of rent. In support learned counsel for the appellant cited the cases of Kalinluddin Ansari v. Director, Excise and Taxation, Karachi and another (PLD 1971 SC 114) and Barkat Ali v. M/s. Pakistan Sanitary and Drainage Works (1974 SCMR 75).

10. Mr. Manzar‑e‑Alam, Advocate for the respondent defended the impugned order and argued that the application for rejection of the rent case was rightly dismissed as misconceived, while the order dated 18‑8.1993 cannot be assailed. It was further argued that the appellant had admitted in his written statement being tenant of the respondent and such position had not changed due to execution of the Sale Agreement between the parties, which stood cancelled due to conduct of the appellant. It was also argued that the appellant was guilty of non‑compliance of the order dated 18‑8‑1993 and his defence was rightly struck off. In support learned counsel for the respondent cited the cases of:

(i) Allah Yar and others v. Additional District Judge and others (1984 SCMR 741).

(ii) Haji Jan Muhammad v. Ghulam Ghaus and others (1976 SCIVIR 141).

(iii) Saeed Khan Gul Zad Gul v. Muhammad Ibrahim (1986 CLC 2577).

(iv) Faiz Bakhsh and others v. Muhammad Munir and others (1986 CLC 507).

11. At the outset it is necessary to determine, whether a rent case can be rejected under Order 7, Rule 11 of C.P.C. and secondly whether in the instant case the rent case deserved being rejected. In the case of Province of Sindh through Secretary, Education, Sindh, Karachi and others v. Nisar Ahrned (1983 CLC 1905) the view taken was that the Rent Controller and the appellate authority, have been given power of a Civil Court, in respect of the matters enumerated in clauses (a), (b), (c) and (d) below section 20 of C.P.C. and not for any other purpose. It was also observed as below:‑‑

12. "Strictly speaking Order VII, rule 11, C.P.C. is not applicable to rent proceedings under the Ordinance. It must, therefore, follow that an Order purported to have been passed under the above provision cannot be treated *or equated with a decree in terms of Order VII, rule 11, C.P.C. as if it was passed by a Civil Court in order to entitle a party to file a Civil Appeal. "

13. In view of this authority, I hold that the application for rejection of the rent case was rightly dismissed.

14. The rent order dated 18‑8‑1993 covers the period November, 1990 to July, 1993. The rent has been ordered to be deposited at the rate of Rs.850 per month, which rate was mentioned in para. 2 of the written statement. Admittedly the appellant did not possess any rent receipt to support his claim that he had paid rent for November 1990 and for subsequent months. Since the rent application was filed on 13‑3‑1993 hence the rent due after 13‑3‑1990 was not time‑barred. The Rent Controller ordered deposit of rent for the period November 1990 to July, 1993 which was not time‑barred on 13‑3‑1993. Hence the case of Barkat Ali (1974 SCMR 75), where it was held that the time‑barred arrears of rent cannot be ordered to be deposited under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, has no application to this case. In para. 5 of his written statement, the appellant gave particulars of the payments made by him to the respondent, but he did not state if he had paid any amount to her on account of rent of the premises in question. In para. 6 of his written statement, the appellant mentioned in vague terms that he was regularly paying monthly rent alongwith instalments of balance of sale price. In the circumstances the Rent Controller was justified in passing the impugned order dated 18‑8‑1993.

15. Before passing the order dated 5‑1‑1994 the ‑ Rent Controller took efforts to see if his earlier order dated 18‑8‑1993 had been complied with. Office Note at back of the application moved under section 16(2) of the Ordinance, 1979 shows that the appellant deposited in Court Rs.850 on 9‑9‑1993, similar amount on 4‑10‑1993 and again on 10‑11‑1993. As against this the appellant was required to deposit in Court arrears of rent for the period November, 1990 to July, 1993 and the monthly rent. The appellant filed his counter‑affidavit in reply to the application moved under section 16(2) of the Ordinance, 1979. In said affidavit he did not claim having deposited any amount in Court in terms of the order dated 18‑8‑1993. In the circumstances the Rent Controller was right in striking off defence of the appellant and ordering his eviction under the Order dated 5‑1‑1994.

16. Lastly it is to be determined if the provisions contained in section 53‑A of the Transfer of Property Act are attracted to this case, for benefit of the tenant. In the case of Kalimuddin Ansari (PLD 1971 SC 114) the question at issue was about validity of the constitution of Karachi Municipal Corporation and its right to recover taxes under the W.P. Urban Immovable Property Tax Act, 1958 from the persons, who had constructed houses in the PECHS and Plot‑holders of the Housing Union. In that context an observation was made that the sub‑licensees had become the holders of a permanent lease, although without execution of registered lease deeds in their favour, they being lessees in perpetuity it would be very difficult for the Government to oust them. In this respect reference to section 53‑A of Property Act .was only incidental.

17. The cases cited on behalf of the respondent require to be discussed. In the case of Haji Jan Muhammad (1976 SCMR 141), it was held that an agreement of sale between a landlord and a tenant, did not exempt the latter from payment of rent and therefore, his continued occupation of the premises in violation of law could hardly be put forth as a defence or a step towards part performance when the tenant had not paid the, consideration. In the case of Allah Yar and others (1984 SCMR 741) purchase of the premises in dispute by the new landlords through a registered deed was not denied, while the tenants were given by husband of the previous owner/landlady a receipt in token of an agreement to sell the property and it was held that the occupant/tenants were not entitled to retain the possession in any other capacity than as tenants of the new purchasers. It was also held that in such circumstances reliance on section 53‑A of the Transfer of Property Act is of no help to the tenants, whose failure/refusal to pay the rent for a long period cannot be treated as bona fide. In the case of Saeed Khan Gul Zad Gul (1986 CLC 2577) the view taken was that relationship of landlord and tenant between the parties, continued as such, even after execution of a sale agreement between them and they were governed by the W.P: Urban Rent Restriction Ordinance and therefore the defence under section 53‑A of the Transfer of Property Act, was not available to a tenant in whose favour there is agreement of sale. In said case the alleged sale agreement between a landlord and tenant was simply receipt of the amount paid as advance out of total consideration of the sale of the property, while the balance was payable within certain period but nothing was done by the tenant/purchaser in that respect. In the case of Faiz Bakhsh and others (1986 CLC 507) the plaintiffs/appellants in possession of a land succeeded in proving that they had purchased the same for value and the view taken was that the plaintiffs/appellants cannot be deprived of the protection available under section 53‑A of Transfer of Property Act, even if the defendants/respondents relied on an agreement of sale in favour of minor son of one of them. These authorities go against the appellant. Consequently I am of the view that the appellant is not entitled to any benefit under section 53‑A of Transfer of Property Act on the ground that he had entered into an agreement with the respondent for purchase of the demised premises. This observation would however be subject to any finding by a Civil Court, in case any of the parties invokes jurisdiction of that Court.

18. For the foregoing reasons, this appeal is dismissed in limine. Such short order was passed on 15‑5‑1994 and these are reasons for the same.

19. H.B.T./S‑1081/K Appeal dismissed.