ALEEM UD DIN And Another vs MUHAMMAD ASLAM And 2 Other

1. MUHAMMAD AFZAL ZULLAH, CJ.--- This appeal through leave of the Court is directed against the judgment, dated 18th January, 1986 of the Lahore High Court; whereby, the appellants'

2. Constitutional (Writ) Petition arising out of an urban tenancy matter, was dismissed.

3. Muhammad Aslam respondent No.1 was permanently transferred the plot in dispute which was surrendered by one Bashir Ahmad under the laws relating to the Settlement of Displaced Persons, in 1982. The appellants were then in possession of this plot. The transferee applied for their ejectment before a Rent Controller. The appellants' plea was that there was no relationship of landlord and tenant because the said Bashir Ahmad had entered into agreement of sale with them and that total price of the plot having been paid to him before he had surrendered the plot, they could not be evicted and that the protection under section 53-A of the Transfer of Property Act was in any case available to them.

4. The ejectment application was dismissed. However, the respondent's appeal was allowed by the District Court and the appellants were ordered on 4.12-1985, to be evicted. The appellants' writ petition having been dismissed in limine by the High Court they sought (cave to appeal which was granted to examine the contention: "that an agreement of sale in favour of the tenant in possession protect him against his dispossession under section 53-A of the Transfer of Property--- s Act and in this context he relied on a reported case Shamim Akhtar v. Muhammad Rasheed PLD 1959 SC 575."

5. Learned counsel has reiterated the same contention as was noted at the leave stage. Learned counsel, however, admitted that the predecessor-in-interest of the appellants namely; said Bashir Ahmad has not supported them in so far as the factual aspect is concerned. Otherwise too there is no positive finding in favour of the appellants in the impugned judgments that in fact there was till agreement of sale in favour of the appellants by Bashir Ahmad though the assertions made in that behalf having been duly noticed, the appellants' contentions based thereon were disposed of on other grounds, as well. When questioned in this behalf, learned counsel stated that all these aspects arc again sub judice before the Civil Court in a suit for specific performance riled by the appellants: which is still pending.

6. The last noted aspect would change the entire complexion of this case.

7. Learned counsel for the appellants realising the position of law declared by this Court in a situation as in the present case, stated that it might be difficult for the Civil Court to grant a decree to the appellants if there is no reservation/observation for continuance to its logical end, of the said litigation. He, therefore in addition to the argument already noted prayed for an observation that the judgments brought before this Court, would be subject to the final decision by the Civil Court. In this behalf learned counsel further elaborated that the appellants have incurred huge expense in raising construction at the plot in dispute as well as having installed machinery and other installations, and, has further contended that there is full justification for an independent adjudication by the Civil Court on the question of title and other related issues.

8. After examining this aspect of the case we do agree that in the circumstances thereof the prayer made by the learned counsel is fair and in accord with the dictates of justice. It is. Accordingly, held that the decisions in the hierarchy of the Rent Restriction Law in this case would be, subject to the final verdict in the general jurisdiction of the Civil Court.

9. On merits in so far as the order of the eviction is concerned, it would remain valid till the final decision on the Civil Court side. Accordingly, with these observations this appeal is dismissed.

10. On the question of protection of the possession of the appellants till the decision by the Civil Court, learned counsel for the caveator did put up a spirited resistance; understandably with a view to oust the appellants before they are able to get final verdict in the hierarchy of the Civil Courts. We having made observation that the judgments impugned in this case shall be subject to the final verdict by the Civil Court, it is but natural that till the Civil Court is able to render tile final decision and/or is able to control the question of possession (till the decision by that Court) the appellants should be provided limited protection till they are able to apply before the Civil Court and obtain an order thereon, interim or otherwise granting/withholding interim relief. Accordingly in the facts of this case in exercise of the power of this Court to do complete justice, the appellants are allowed one month's stay to seek/apply for interim relief from the Civil Court. There shall be no order as to costs.