MUHAMMAD ASHRAF Versus AZIZ AHMED KHAN

This eviction appeal impugned the judgment dated 22‑12‑1992 whereby an order of eviction was passed against the appellant. One Ibrahim Khokhar was the original owner of the property in which the demised shop is allocated. Both the parties were tenants in two adjoining shops in the said premises and were paying rent to the said Muhammad Ibrahim Khokhar. Sale agreement had been executed between the said Muhammad Ibrahim Khokhar and the appellant on 21‑5‑1978 (Annexure 'A' to the written statement) in terms thereof the said Muhammad Ibrahim Khokhar had agreed to sell the demised shop to appellant Muhammad Ashraf for Rs.55,000 out of which Rs.5,000 had been paid at the time of the execution of the sale agreement and the balance was payable before the Sub‑Registrar at the time of the registration of sale‑deed. The date for the execution of the sale‑deed was fixed as 20th September, 1978. The appellant, however, could not pay the balance of the sale price in time and no sale‑deed could be registered. The said Muhammad Ibrahim Khokhar treated the said agreement of sale as expired and of no effect and after about 10 years sold the property to respondent Aziz Ahmed through registered sale‑deed dated 25‑9‑1988. With the execution of this registered sale‑deed, appellant Muhammad Ashraf automatically became the tenant of Aziz Ahmed Khan who then served appellant Muhammad Ashraf with notice of attomment under section 18 of the Ordinance (notice dated 19th October, 1988 which is Annexure ' A' to the rent application). This notice was replied by the appellant vide reply dated 24‑10‑1988 (Annexure 'B' to the eviction application) in which the appellant claimed that the sale‑deed executed by Muhamamd Ibrahim Khokhar in favour of respondent Hafeez Ahmed Khan was illegal and without any effect because it was executed secretly and clandestinely and because the agreement of sale between him (the appellant) and Muhammad Ibrahim Khokhar still substituted in view of a further undertaking given by the said Muhammad Ibrahim Khokhar on 12‑10‑1978. Nevertheless the appellant abided by the notice of attornment and commenced paying rent, under protest and subject to his rights under the agreement of sale, to respondent Aziz Ahmed Khan with effect from 23‑9‑1988. On 18‑10‑1988 the appellant served the said Muhammad Ibrahim Khokhar with a notice (with copy to respondent Aziz Ahmed Khan) protesting with Muhammad Ibrahim Khokhar for selling the property to respondent Aziz Ahmed Khan in the face of the earlier sale agreement in his (appellant's) favour. It is not clear from the contents of this notice that what was required by the appellant from the respondent as well as Muhammad Ibrahim Khokhar. However, the respondent and the said Muhammad Ibrahim Khokhar replied its notice through reply dated 24‑10‑1988. The agreement of sale was admitted but it was maintained that the appellant failed to pay the balance of the sale price within time which time was extended by mutual agreement to 5‑10‑1978 but the appellant failed to pay the balance of sale consideration even at the end of the extended period and on that ground the said agreement of sale came to an end and the same was cancelled and the advance money of Rs.5,000 was returned to the appellant. Muhammad Ibrahim Khokhar denied having executed any undertaking in favour of the appellant as claimed by the appellant in terms of which he (Muhammad Ibrahim Khokhar) had undertaken not to sell the premises to anyone else but appellant Muhammad Ashraf or get the shop vacated from him. Subsequent to these notices and their replies respondent Aziz Ahmed Khan instituted eviction application on the ground of his personal requirements. According to the respondent, he had purchased the premises because his shop was proving inadequate for his requirements and he wanted to expand it. Shortly thereafter, the appellant also instituted a suit for specific performance of the contract in the Civil Court. On the basis of the evidence before him, learned Rent Controller agreed with the respondent that he required demised premises for his personal requirements and passed order of eviction which is impugned in this appeal. Suit for specific performance filed by the appellant against the previous owner Muhammad Ibrahim Khokhar is still pending before the Trial Court. I have heard the learned counsel for the parties and have gone through the record of the case.

2. Learned counsel for the appellant was of the view that the rent application was not maintainable, or at least the order of eviction is not executable, until the suit of specific performance filed by the appellant against the previous owner of the premises is decided because the title of the respondent is defective and is not perfect as yet.

3. I am of the view that a sale agreement is just an agreement and does not confer any proprietary rights upon the person in whose favour it is executed. To take the present case, the agreement of sale dated 21‑5‑1978 does not confer any title upon the appellant. It is surprising to note that the agreement of sale has not even been produced in the Court and only its photostat copy was appended to the written statement of the appellant and it was not even properly exhibited during the course of evidence. On the basis of this agreement the appellant could seek the specific performance of sale through a suit under section 12 of the Specific Relief Act or he may seek damages for its breach but until the suit for a specific performance is decreed in favour of the appellant, the property continued to vest in Muhammad Ibrahim Khokhar and he is, therefore, at liberty to dispose it of in whatever ways he liked. This view finds support from the judgment reported as 1986 MLD 2049 (Capt. Dr. Abdul Wahab v. Province of Punjab), in which it is held that "it is a settled law that a mere agreement for sale does not create any right or interest in the property". The other two judgments on the point are 1987 CLC 795 (Benque Indo Suez v. Muhammad Saleem and others) and 1994 CLC 132 (Muhammad Yousuf v. Syed Wali Muhammad Shah) in which it is held that a mere contract of sale does not create any charge or interest in the property which is the subject‑matter of such contract although such contract does vest the parties with the right to get the same enforced. I am, therefore, of the view that notwithstanding the execution of agreement of sale by Muhammad Ibrahim Khokhar in favour of the appellant on 20‑5‑1978, the relationship of landlord and tenant continued to exist between the two and the said Muhammad Ibrahim Khokhar legitimately sold the property to the respondent who lawfully stepped into the shoes of the previous owner and became landlord of the appellant.

4. Learned counsel for the appellant had laid great emphasis on evidentiary value of the undertaking executed by the said Muhammad Ibrahim Khokhar in favour of the appellant on 12‑10‑1978. Muhammad Ibrahim Khokhar had denied its execution. It is not signed by anyone else as a marginal witness. The appellant has also not produced the original undertaking before the Court and even its photostat copy was not formally tendered in evidence but was only filed with their written statements. Its contents are reproduced below:‑‑

"I, Muhammad Ibrahim son of Beghan Khan Khokhar resident of Khokhar Mohallah, Hyderabad do hereby undertake and assure Muhammad Ashraf son of Sher Muhammad tenant in my shop West Katcha Khokhar Mohallah, Hyderabad will not sell the said shops and upper portion thereon to any other person. In case of sale of the same. I will give preference to Muhammad Ashraf son of Sher Muhammad. I will not get vacated shop from Muhammad Ashraf son of Sher Muhammad in future. I will increase rent as per prevailing market value if and when required so."

It is evident that from this undertaking the respondent had bound himself not to sell the property in question to any other person and in case he contemplated sale he would give preference to appellant Muhammad Ashraf and would also not get the shop vacated from him nor would increase the rent. The undertaking does not show for what consideration this undertaking was given and the presumption must be that it was without consideration. It would, therefore, be void on that account. Secondly, no one can contract himself out of the rights guaranteed to him under any law. The classical authority on the point is E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) in which Mr. Evans had waived notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and had commenced paying rent to Mr. Muhammad Ashraf who was the transferee of the property and he did not raise any objection as to want of such notice but, nevertheless, the Supreme Court held that Mr. Evans could not contract himself out of his right under section 30 of the Displaced Persons. (Compensation and Rehabilitation) Act, 1958 and it was incumbent upon Muhammad Ashraf to serve such notice upon Mr. Evans before the relationship of landlord and tenant could come into existence. The principle laid down in that judgment is applicable in all cases in which somebody contracts himself out of the rights given to him under any law. Muhammad Ibrahim Khokhar was under no obligation to prefer the appellant as a future purchaser of the property and he could not bind himself not to seek eviction of the appellant from the shop in question. Thus, apart from the fact that the appellant has failed to prove that Muhammad Ibrahim Khokhar had executed 'this undertaking, the said undertaking was also void and illegal, even if it had been executed by Muhammad Ibrahim Khokhar because, firstly, it was without consideration and, secondly, because it infringed the principle laid down in the judgment reported as E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) as for the agreement of sale, it provided for the execution of the sale‑deed by 20th September, 1978 which period was later on extended to 5‑10‑1978. If Muhammad Ibrahim Khokhar did not fulfil his obligation by this date it was open to the appellant to bring a suit for specific performance of the contract under section 12 of the Specific Relief Act within three years of 5‑10‑1978 under Article 113 of the Limitation Act. Since the appellant did not bring the suit within time he cannot rely on the suit filed by him in 1988 (Suit No.343/88) which is, on its very face, barred by time. Learned counsel for the appellant relied upon the case of Imamuddin v. Shaikh Bashir Ahmed, reported as (1989 CLC 2309). This judgment does not appear to be relevant because the appellant is not in possession of any current agreement of sale. The agreement of sale on which he is relying pertains to 1978 and the date by which the sale‑deed was to be executed was 5‑10‑1978. It is a dead horse on which the appellant simply cannot rely.

5. The rent application having been found to be maintainable I would now revert to the bona fide personal requirements of the respondent.

6. In support of his claim of personal requirements the respondent states that he is running the business of repairing the motorcycles and the shop in his possession is very small and, therefore, he had purchased the demised shop as well and wants to comibe the two for his business purposes. The first objection raised by the learned counsel for the appellant is that the respondent did not mention anything about his personal requirements in the notice of attainment and, therefore, this is an afterthought and has no basis in reality. There is no force in this argument. As matter of fact, a person who steps into the shoes of a landlord is only expected to inform the tenant of this fact as per section 18 of the Ordinance. Not only he is not expected to give any other facts in such notice but mentioning other facts therein would rather be irrelevant. The second argument raised by the learned counsel is that if he in fact required more space for his business he should not have purchased the demised shop but some other property which was lying vacant. This argument is misleading. It may be noted that the portion purchased by the respondent, apart from the upper portion, consists of not only the demised shop but its adjacent shop in which the respondent himself is doing business. Obviously, the respondent could not purchase some other property for his personal use because he could not carry on business on two separate premises. The shop in possession of the appellant is adjacent to the shop in possession of the respondent and, therefore, it was only natural for the respondent to purchase the adjacent shop because in only such a case could he combine the two and use them jointly for his workshop. I am of the view that very fact that the respondent purchased the premises goes to establish the bona fides of his personal requirements. It is an admitted position that the demised shop and the shop in possession of the respondent are of equal area which is 10' x 8' . This is too small an area for a motoreycle repairing shop and the requirements of the respondent for more space cannot be denied. Learned counsel for the appellant had brought to may notice the admission of the respondent that he was not empty employing any workers in his workshop and was carrying on the business with the help of his nephew and a few children and learned counsel argued that this indicated that the business was too small and did not admit of additional requirements of space. This is a malacious argument. According to R.W.2 Shamsuddin, respondent Aziz Ahmed was carrying on the business of motoreycle for the last about 15 or 20 years and the space in his possession was sufficient for his requirements. This space, as we have already noted, is only 10' x 8' . It is hardly enough space and no reliance can be put to what this witness claimed.

7. I am satisfied that the respondent has sufficiently proved the bona fides of his personal requirement and as such the impugned judgment is upheld and this appeal is dismissed.

8. Learned counsel for the appellant has, in the alternate, prayed that execution of the eviction order be stayed till the decision of the suit field by the appellant for the specific performance of the contract. In this connection he relies on the judgments reported as 1990 MLD 2217 (Qassim v. Budha Soomar) and 1991 SCMR 850 (Aleemuddin v. Muhammad Aslam and others). The first judgment is in respect of an application under Order 39, rules 1 and 2, C.P.C. in a suit for specific performance of contract in which the plaintiff having satisfied the Court that he had made out a prima facie case and that he would suffer irreparable loss in case he was ejected, temporary stay was granted to him. In the second case the Supreme Court had granted one month's time to the appellant in that case for seeking interim relief from the Civil Court. None of these two judgments advances the case of the appellant for the stay of execution of the ejectment order until the decision of the suit for specific performance of contract. The alleged agreement of sale on the basis of which suit of specific performance has been filed is apparently barred by time by about more than seven years. Secondly, in view of the judgments reported as 1983 SCMR 302, which is the judgment of our Supreme Court, a registered sale‑deed is enough proof of title in favour of landlord and Rent Controller cannot go behind a registered sale‑deed to question its validity and effect. The learned counsel for the appellant desires that an unregistered and hopelessly time‑barred agreement of sale should be given preference over the registered sale‑deed in favour of the respondent and the execution of the eviction order should be stayed. Such a request has no sanction of law. Same view is held by our Supreme Court in the case of Shaikh Manzoor Ahmed v. Mst. Iqbal Beg in (1989 SCMR 949) and Qassim v. Syed Reheem Shah (1990 SCMR 647).1 am, therefore, not inclined to stay the execution of the eviction order till the decision of the suit filed by the appellant.

9. As a second alternate, learned counsel for the appellant had prayed that the appellant may be granted at least one year's time for vacating the premises because he would require some time to find an alternate accommodation. There is some force in this prayer of the learned counsel but it appears to me that the period of one year is far too long and would act to the detriment of the respondent who is seeking possession on the basis of his personal requirements. Keeping all these facts in view. I would allow four months time to the appellant to vacate the premises.

A.A./M‑37/K Appeal dismissed.