1983 PLP 739 (CLC)

4. On 9‑9‑78 Mst. Shamim Akhtar respondent No. 3 fixed ejectment proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against the petitioner seeking his eviction from the house in question on the ground of default in payment of rent and bona fide personal need of the petitioner. She contended in the ejectment petition that. Abdul Haq and his brother by means of a registered sale‑deed sold the house in dispute in her favour on 11‑3‑76 and that after purchasing this property. she served the petitioner with a notice but he did not .make the payment of rent to her and was thus a defaulter.

5. The ejectment application was resisted by the petitioner who pleaded inter alia that he was in possession of the house in question as purchaser from Abdul Haq, the original owner, and that he had already filed a suit for specific performance of the contract against the said Abdul Haq and Mst. Shamim Akhtar. He urged that in the circumstances, relationshi of landlord and tenant did not subsist between him and Mat. Shami Akhtar.

6. The learned Controller framed the preliminary issue about the existence of the relationship of landlord and tenant between the parties. After recording the parties evidence, the learned Controller found that Mst. Shamim Akhtar respondent No. 3 admittedly had purchased the house in question through a registered sale‑deed from original owner viz. Abdul Haq and that she also served the petitioner with a notice requiring him to pay the rent. He also observed that admittedly the petitioner was a tenant under the original owner. With these observations, he concluded that now the petitioner was a tenant under Mst. Shamim Akhtar. Conse quently, the Controller ordered the eviction of the petitioner from the house allowing him one month's time for vacating the same.

7. The petitioner preferred an appeal and the learned Appellate Authority i. e. the Additional District .Judge, Gujranwala, dismissed the appeal observing that the sale‑deed executed by Abdul Haq in favour of Mst. Shamim had not been cancelled by any Court and that it still held the field and further that the petitioner in spite of notice served on him by respondent No. 3 failed to pay rent to her. The learned Appellate Authority further observed that the alleged agreement to sell claimed to have been executed by Abdul Haq, the original owner, in favour of the petitioner was not proved while Shamim Akhtar had purchased the house from Abdul Haq through a registered sale‑deed.

8. It is not denied that suit for specific performance of the contract filed by the petitioner against Abdul Haq and respondent No. 3 (Shamim Akhtar) is still pending before the civil Court at Gujranwala. In that suit it has been claimed by the petitioner that Abdul Haq had agreed t sell the house in question to him for a sum of Rs. 15,500, and that he ha already received a sum of Rs. 3,500 as the earnest money on two occasion i. e. Rs. 2,000 on 20‑7‑74 and Rs. 1,500 on 11‑1‑75 Mst. Shamim Akhtar being successor‑in‑interest of the original owner i. e. Abdul Haq is legally bound by the decision in the suit for specific performance of the contract instituted by the petitioner against Abdul Haq and also against her. In Hassan Abbas v. Shahid Bashir and 5 others (1), it has been held:‑ "If the owner of any property agrees to sell the property to a tenant, who is in occupation thereof, but subsequently seeks ejectment of the tenant, the tenant can, in view of the provisions of section 53‑A of the Transfer of Property Act, successfully resist the ejectment proceedings on the score of agreement of sale in his favour." It was further observed: "It is true that the provisions of the Transfer of Property Act do not, in terms, apply to this Province but its principles are generally observed in this part of the country as well therefore, in view of the principle of section 53‑A, the appellant, could resist the ejectment proceedings on the basis of the agreement of sa1C relied upon by him." (1) 1980CLC1942

9. While distinguishing this authority, the learned Appellate Authority (Additional District Judge) has observed that in the circumstances of the under consideration case, agreement to sell was executed by Abdul Haq and not by Mst. Shamim Akhtar who had brought the ejectment proceedings against the petitioner. These observations are not legally sound inasmuch as Mst. Shamim Akhtar being successor‑in‑interest of Abdul Haq is bound by the agreement which he prior to the sale in her favour had executed in favour of the petitioner. In Manzoor Hussain v. Nawazish Nazir Hussain and another (1), it was held that if the agreement to sell had been executed and the landlord bad received considerable amount from the tenant as earnest money, he (the tenant) could not be dispossessed of the property till the specific performance of the contract, or the return of the money.

10. The petitioner's plea of non‑existence of relationship of landlord and tenant has not been accepted by the learned Controller and the Appellate Authority also inter alia on the grounds That the agreement to sell allegedly executed V by Abdul Haq, the original owner, in favour of the petitioner was not duly proved and that by merely execution of agreement to sell in his favour, he had not acquired an absolute title regarding the property and, therefore, could not resist the ejectment petition. These propositions are per se wrong inasmuch as the execution of the agreement to sell have to be proved by the petitioner before the civil Court which alone is competent to pass a decree for specific performance of the contract on the basis of the agreement. Secondly, as already observed, by virtue of the provisions of section 53‑A of the Transfer of Property Act, the petitioner can valid resist an ejectment application contending that he was in possession of the house in question as owner in part performance of the agreement to sell.

11. Reliance on behalf of the respondent has been placed on Malik Chiragh Din v. Sh. Raft‑ud‑Din and another (2), wherein it was found that plea of protection by virtue of the provisions of section 53‑A of the Transfer of Property Act was not available to the tenant if the agreement to sell was not proved. In the present case, as already observed, the execution of agreement to sell has yet to be decided by the Court of competent jurisdiction and no finding has even been recorded by the Controller that the execution of agreement to sell as alleged by the petitioner was not proved. This authority is, therefore, distinguishable on facts. Reliance by the contesting respondent has also been placed on Begum Shamas un‑Nisa v. Syed Akbar Abbas and another (3), and Muhammad Sharif and another v. Muhammad Afzal Sohail etc. (4), which pertain to limited scope bf the constitutional jurisdiction of the High Court in relation to ejectment matters. In these authorities, however, it has been found that the constitutional jurisdiction of the High Court is confined to ascertain, whether the Rent Controller and Appellate Authority while passing the impugned order had not flouted provisions of relevant statute or had failed to follow law relating thereto as laid by the superior Courts.

12. In the circumstances of this case, the Controller as also the learned Appellate Authority ignored the provisions of section 53‑A of the Transfer of ` Property Act and failed to follow the law laid down in this behalf in Hassan Abbas v. Shahid Bashir and Manzoor Hussain v. Nawazish Nazir Hussain.

13. For the foregoing reasons, it is concluded that the impugned orders passed by respondents Nos. 1 and 2, suffer from legal infirmity. (1) P L D 1976 Lab. 637 (2) 1980 Law Notes S C 385 (3) PLD1982SC413 (4)PLD1981SC246 The writ petition is accordingly allowed, impugned orders are declared to have been passed without lawful authority and of no legal effect. The parties arc, however, left to bear their own costs. K. M.A. Petition allowed