P L D 1986 Karachi 258 (PLP)

Counsel further contends that even if it is assumed that the fault is attributed to the landlord/appellant, the agreement is clear and provides "In the event of failure on the part of the vendor to complete the sale the vendees shall be entitled of their option to sue for specific performance of the agreement and/or damages according to law." The learned counsel contends that on the failure of the landlord/vendor the tenant has an option either to treat the bargain closed or to enforce the agreement by fling a suit for specific performance. In any event the Rent Controller should be last person to pre‑empt the result or outcome of a legal battle between the parties in a civil Court. He ought to have refus ed to first entertain the plea of cessasion of tenancy on the basis of the agreement which was lying dormant since 30‑4‑1973, the last date of its performance or ought to have held that by force of clause (7) of the agree ment the respondents had become tenants of the appellant on a monthly rent of Rs. 1400 with effect from 20‑4‑1973. The upshot of the argument is that if the agreement Exh. 5/E is completely ignored the old tenancy continues, but even if the agreement is initially considered and held to be inoperative on account of breach by any of the two parties, the relationship for purposes of the proceedings before the Rent Controller would revive in terms of clause (7) of the agreement. Mr. Malik Saeed learned counsel for the respondents meets this argument by reading clause (6) of the agreement Exh. 5/E which is as follows That the vendor shall make out a valid, clear and marketable title of the said property, obtained and get the completion plan and lease deed of the said plot property in his favour from K. D. A. at his expenses, obtain Income‑tax Clearance Certificate and all necessary certificates at his expenses, and execute and register the conveyance deed of the said property in favour of the vendees within about 3 months from the date of this agreement." The learned counsel then proceeds to argue that the appellant has failed to fulfil these obligations and has thus committed the breach of the agreement of sale Exh. 5/E. In short the contention raised is that the old tenancy was terminated by the agreement of sale Exh. 5/E and on account of execution of this agreement say part performance and substantial compliance of its terms by the respondent, the respondent himself became owner of the property and the relationship of landlord and tenant came to an end. So far as its revival by virtue of clause (7) of the agreement is concerned, the learned counsel contends that such fresh relationship of tenancy could be created only if the breach was attributable to the respondents. According to the learned counsel the consequences visualised by clause (7) were dependent upon performance of reciprocal obligation of the appellant in terms of clause (6) of the agreement. The learned counsel for the respondents does not stop here. He proceeds to urge that assuming without conceding that even if on tentative assessment it is held that the fresh tenancy has been created by virtue of clause (7) of the agreement, any order of ejectment passed in these proceedings would remain ineffective because the respondents are fully protected by section 53‑A of the Transfer of Property Act. Counsel submits that the respondents have paid a substantial part of consi deration and have been put in possession of the property and have always been and are still ready and willing to pay the balance as soon as the appel lant complies with all the terms of clause (6) of the agreement, namely, he obtains permission of the K. D. A., obtains Certificate from the Income tax Authority and offers a valid marketable title to the respondents through a Registered Sale‑Deed. Reliance is placed on the following cases in support of the contention that any ejectment order passed by the Rent Controller in this situation would by ineffective on account of the bar of section 53‑A of the Transfer of Property Act (1) Abdullah Bhai v. Ahmed Din P L D 1964 S C 106. (2) Manzoor Hussain v. Nawazish Nazar P L D 1976 Lab. 636. (3) Kalimuddin Ansari v. Director Excise P L D 1971 S C 114. (4) Ghulam Sakina v. Umar Bux P L D 1964 S C 456. (5) Hassan Abbas v. Shahid Bux 1980 C L C 1442. (6) Inayatullah v. Shah Mehmood P L D 1961 Lah.

372. Reference may be made to only 1980 C L C 1442, which is the latest case and has relied on other cases. In this case decided by a learned Single Judge of Lahore High Court, the following view was taken :‑ "I agree with the learned counsel for the appellant that 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 proceed ings on the score of the agreement of sale in his favour." The contention of the learned counsel for the respondents has force) and must be accepted. In the circumstances the findings that there is no relationship of landlord and tenant between appellant and the respondent within the meaning of the Ordinance are upheld. The application for ejectment of the respondents has been rightly dismissed by the Rent Con troller by his order dated 9‑9‑1976. The appeal against that order has also been rightly dismissed by the learned IV Additional District Judge, Karachi by the judgment dated 25‑4‑1978. The learned counsel for the appellant then tried to project the miser able plight of the appellant by showing that be has been denied any relief by the Rent Controller and the first appellate authority and both the Courts below have squarely fixed the blame on the appellant by a deep investigation and close analysis of the various clauses to the agreement Exh. 5/E and evidence of the parties in the case thus forestalling the fate of any Civil Suit. Not only this the tenant armed with these findings has stopped payment of rent and has also withdrawn a suit for specific performance which be bad filed in the High Court. I have given a serious thought to the arguments of the learned counsel. So far as his apprehension about finality of findings in the orders of the learned Rent Controller and the learned IVth Additional District Judge are concerned, I was of the view that no findings recorded by the two lower Courts are of any consequence so far as the determination of breach i concerned. The powers of the Rent Controller under the Rent Act and also of the appellate authority created under this Act cannot go beyond the limits prescribed under the Act. Under the West Pakistan Urban Rent Restriction Ordinance, 1959 and also under the Sind Rent Premises Ordinance, 1979 the Rent Controller I has two main functions to perform. Under section 4 of Ordinance VI of 1959 he has to determine a fair rent of the premises if the dispute is brought before him. This order would be a judgment in rem and would be immune from any further attack. The only other function, which the Rent Controller has to perform relates to eviction of a tenant from the tenanted premises and the protection provided to the tenant by section 13 (1) of the Ordinance of 1959. They are to the effect that the landlords right would remain dormant and suspended and unenforceable against a tenant until it is proved to the satisfaction of the Rent Controller that : (i) the tenant has not paid or tendered rent due him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable, or (ii) the tenant has, without the written coast of the landlord ; (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof. or (b) used the building or rented land for a purpose other than that for which it was leased or has infringed any condition of the tenure on which the building or rented land is held by the landlord, or (iii) the tenant has committed such acts as are likely‑ to impair materially the value or utility of the building or rented land, or (iv) the tenant has been guilty of such acts and conduct as are a nuisance to the occupants of buildings in the neighborhood, or (v) where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause, or (vi) the building or rented land is reasonably and in good faith required by the landlord for. the reconstruction or erection of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or land is situated." Any order passed by the Rent Controller or the Appellate Court determining the existence or non‑existence of the incidence rights and liabi lities mentioned above would be final and binding and not open to any further attack or scrutiny by any party before any Court. la the earlier Statutes on the same subject the Rent Controller was an authority to issue an ejectment certificate certifying that the tenant has suffered any of the disability and as such had lost the protection of the Rent laws. With this certificate in hand the landlord used to approach a regular Court for ejectment of the tenant. Under the new rent laws i. e. Ordinance (VI o 1959) and Sind Ordinance (XVII of 1979) the power of ejectment has also been blended with the function of issuing the ejectment certificate but the scope of authority to issue certificate is not expanded. In my earlier judgments I have held that the finality attached to an order passed by the Controller, the appellate authority or the High Court by force of section 15 (5) of Ordinance (VI of 1959) or to an order by the Controller or the appellate authority by force of section 21(3) of Ordi nance XVII of 1979, would remain confined to the findings within the confines of powers given to these forums by the Statute. In other words the immunity granted to the orders of the authority under the Rent laws is not a blanket immunity covering any order passed by these authorities but only to such order as are germane to the exercise of power for fixation of fair rent and incidence of ability or disability prescribed by the provisions relating to ejectment. To be more precise investigating the requirements of section 13 (2), (3) of Ordinance (VI of 1959), Any other finding which may have been recorded collaterally for disposal of the issues under the said sections would be tentative and a casual and summary appreciation of the points of dispute between the parties. For instance the Rent Controller's opinion regarding validity of transfers of interest in the property by sale, gift, mortgage or by force of any Statute etc. with consequential change of relationship of landlords and tenant would be tentative and not conclusive. This opinion is no more good law. The learned counsel has placed a case decided by the Hon'ble Supreme Court reported in as Ramat‑Ullah v. Ali Muhammad (1983 S C M R 1064) in which it was held ‑‑ "I may, however, usefully add that any Tribunal or a statutory Authority exercising quasi‑judicial functions when required to deter mine any question, which, under the law, it has the authority to determine should decide all the questions arising before it and thereby spare the parties from the ordeal of rushing from one forum to another. The findings recorded by such Tribunals on the questions adjudicated by it, subject to correction or alteration by the Appellate or Constitutional forum are final and on the general principles of res judicata are not open to be re‑agitated before a civil Court. Thus, the findings recorded by a Tribunal of limited jurisdiction like the Rent Controller would also be final, if they are given on the merits of the plea raised before it and will operate as res judicata. However, in the event where the Rent Controller feels that complicat ed question requiring a protracted inquiry would be necessary for deciding a particular question such as for instance whether a party claiming to be the owner of a property and is therefore the landlord of the person occupying it, cannot in view of the demands of the law to decide questions of the existence of the relationship of land lord and tenant expeditiously be undertaken by him, he can observe that such a question should be decided by a Court of general juris diction, namely, the ordinary civil Court and this finding should be specifically recorded by him in his order. The result in practical terms accordingly may be summed up as follows. The Rent Controller who was dealing with a petition for ejectment of an occupant of a property by a party claiming to be his landlord, a claim which as based on the plea of ownership, should have proceeded to decide all the issues relevant to the said question, which incidentally may also have included a decision on the question of title, This was done by the Rent Controller. If his appellate authority considered that a deeper and a more detailed examination of the last mentioned question was necessary for setting this matter and also found that the title of the alleged landlord did suffer from some doubt. he should to these circumstances, have dismissed the ejectment petition, leaving the appellant before him, to move the Civil Court for a declaration of his title. As has been observed earlier that if such leave is not granted by the Rent Controller or by the Appellate Authority while deciding the ejectment petition, the finding of such authorities even on the question of title, incidental though it may be, ; and will operate as res judicata. not liable to be civil Court. However, the aggrieved party can get this omission rectified, if made by the Rent Controller. by filing an appeal and if made by the appellate authority, from the High Court, in exercise of its supervisory constitutional jurisdiction. In case these forums find that the question of title does indeed, require further examina tion by the civil Court and the finding of the Rent Controller or the appellate authority should not be treated as finial, such a finding given by them would enable the aggrieved party to re‑agitate the said question before a civil Court and in such an eventuality the bar of res judicata would not apply." In view of the above dictum it is necessary to make an observation that any opinion expressed by the learned Rent Controller or the 1st Appellate Authority regarding breach of the contract and resulting transfer of interest in the property should be treated to be tentative and should not be treated A as res judicam. Either party would be free to take any appropriate action in any civil Court for redress of his grievance in connection with the agreement Exh. 5/E. In view of the denial of relationship of landlord and tenant by the respondent, he is not entitled to any protection of rent laws and the appellant would be at liberty to obtain possession of the premises from the respondent in due course of law. The result is that this appeal is dismissed with no orders as to costs. Parties are left to pursue their remedies before the competent civil Court. A. A. Appeal dismissed.