MUHAMMAD NAZIR vs SAEED SUBHANI

' MUNIR A. SHEIKH, J---This petition is directed against the judgment dated 13-2-2002 of the Lahore High Court, through which second appeal filed by the petitioner against the orders of the two Courts below, bas been dismissed.

2. The respondent tiled an ejectment petition against the petitioner seeking his eviction from the property in dispute on the ground of default in the payment of rent and personal need. It was contested by the petitioner on merits by alleging that he had been paying rent to the respondent- landlord. He also raised an objection that by paying the entire amount of consideration under an agreement of sale, the petitioner was entitled to get a sale-deed executed but the respondent was avoiding to do so for which reason, the petitioner had already filed a suit for specific performance of the said agreement of sale.

3. On 21-6-2000, the Rent Controller finding that there was no dispute about the existence of relationship of landlord and tenant between the respondent and the petitioner and the rate of rent was also not in dispute, therefore, passed an order for deposit of arrears of rent and the future monthly rent before 15th of each succeeding month. The petitioner did not comply with the said order, therefore, the Rent Controller proceeded through order dated 25-1-2001 to strike off his defence as a consequence thereof, an order for eviction was passed directing the petitioner to hand over vacant possession of the premises to the respondent. The appeal tiled by the petitioner was dismissed by the First Appellate Court through order dated 17-1-2002 against which second appeal filed by him before the Lahore High Court has also been dismissed both on merits' and also as barred by time through the impugned judgment dated 13-2- 2002 against which leave is sought.

4. Learned counsel for the petitioner submitted that before the institution of the ejectment petition, the petitioner has already filed a suit for specific performance of an agreement of sale executed by the respondent in favour of the petitioner agreeing to sell the property in dispute to the petitioner.

He also argued that in the said suit, the respondent had admitted execution of the said agreement of sale but refused to execute the sale-deed on the ground that he had not been paid the remaining amount of consideration as agreed, therefore, the Rent Controller should have avoided to pass order of eviction.

5. The argument has no force. In the written statement filed in the present ejectment petition, the existence of relationship of landlord and tenant between the respondent and the petitioner was not denied even on the ground that an agreement of sale had already been executed from which it can safely be inferred that under the said agreement of sale the petitioner continued to retain the status of tenant and his possession was not agreed to be converted into one in part performance thereof.

6. Additionally the petitioner pleaded in the written statement that he had been paying the rent which also furnishes strong evidence that the said agreement did not have the effect of converting the possession of the petitioner as tenant to his possession under the agreement in part performance thereof. Admittedly, the petitioner did not comply with the order made under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, therefore, the order of the Rent Controller striking off his defence is unexceptionable in law. The appeal was rightly dismissed by the First Appellate Court which also does not suffer from any legal infirmity. Second appeal filed before the High Court was barred by time. It was hable to be dismissed on that short ground as it has been rightly held by the learned Judge of the High Court that section 5 of the Limitation Act was not applicable, therefore, the application seeking condonation of delay under the said section was not tenable. Even on merits, the learned Judge of the High Court has recorded findings after examination of the record and found that the order striking off the defence of the petitioner did not suffer from any illegality.

7. None of the orders impugned in this petition, suffers from any illegality, therefore, this petition has no merits which is accordingly, dismissed and leave refused.