1991 PLP 1335 (MLD)

Allah Yar v. Additional District Judge and others 1984 S C M R 741; Jan Muhammad v. Ghulam Ghaus 1976 S C M R 141; Khusro Alam Haydri v. Mst. Iqbal Begum 1981 C L C 347 and Manzoor Hussain v. Nawazish Hussain P L D 1976 Lah. 637 ref: Ch. Hamid-ud-Din for Petitioner. Raja Abdul Razzaq for Respondents. Date of hearing: 2nd March, 1991. Ch. Allah Ditta petitioner was the landlord while respondents Nos.1 and 2 were his tenants in respect of the ground floor of property situated in Mohallah Bagh, Sarai Alamgir Tehsil Kharian, District Gujrat. The petitioner instituted an ejectment petition against the contesting respondents before the learned Rent Controller, Kharian on the ground of default in payment of rent on 27-7-1976. Learned Rent Controller after recording the evidence and hearing the parties rejected the application of the petitioner on the ground that there existed no relationship of landlord and tenant between the parties vide his order dated 18-12-1978. Order of the Rent Controller was assailed by the petitioner by filing an appeal, which was heard and dismissed by the learned Additional District Judge on 1i-6-1981. Said two judgments of the Courts below have been challenged by the petitioner by moving this Constitutional petition before this Court. Learned counsel for the petitioner contends that respondents/tenants were not exempted from the payment of rent to the petitioner/landlord during the subsistence of an agreement to sell between the parties. Learned counsel has placed reliance in support of his contention upon Allah Yar v. Additional District Judge etc. 1984 S C M R 741, Jan Muhammad v. Ghulam Ghaus 1976 S C M R 141, Khusro Alam Haydri v. Mst. Iqbal Begum 1981 C L C 347.

2. Learned counsel for tile contesting respondents has relied upon Manzoor Hussain v. Nawazish Hussain P L D 1976 Lah. 637 to argue that respondents are no more tenants under the petitioner within the meaning of law under the Rent Restriction Ordinance, 1959. He submits that an agreement to sell was entered into between the parties on 13-9-1975 voluntarily regarding the property in dispute and in consequence thereof respondents paid a sum of Rs.30,000 out of Rs.90,000 to petitioner/landlord. It is argued by the learned counsel that respondents became owners of the property in question and that tenancy between the parties came to an end automatically.

3. I have heard the learned counsel for the parties at considerable length. Learned Rent Controller and the learned Additional District Judge have decided the controversy between the parties relying upon P L D 1976 Lah. 637 (supra) while ignoring the rule laid down by the Honourable Supreme Court in Allah Yar and Jan Muhammad cases, referred to above. The law laid down by the Honourable Supreme Court is that tenancy did not come to an end automatically despite tile fact that an agreement to sell had been executed by the parties. It is evident from the record that rent deed between the parties was executed on 13-9-1975 w.e.f. 1-8-1975 to 31-1-1976. An agreement to sell, Annexure `B' was also executed by the parties on the same date. It may be noticed that same scribe wrote both the documents simultaneously and the witnesses thereof were also the same. It may also be seen that rent deed was executed first bearing No.2338 in the register of the scribe and it related to the ground floor only while the agreement to sell was mentioned at serial No.2339 in the register pertaining to the whole house. This shows beyond any shadow of doubt that the parties had the intention to continue the tenancy. It further shows that the petitioner/landlord was not clear as to whether, the agreement to sell would be completed by the respondents or not. In my view the intention of the parties was that the tenancy between them will continue till such [line the said agreement is acted upon in law by them. Respectfully following the rule laid down in the authorities, referred to above, I am of the view that the tenancy between the parties would not come to an end automatically. Parties would be treated as landlord and tenant till such time the learned Civil Judge' decide the controversy between the parties arising out of the agreement to sell between them. In case the Civil Court comes to the conclusion that agreement to sell could not be completed on account of a fault on the part of the respondents, such fault, would have its affect, according to law. However, in case the learned Judge comes to the contrary conclusion that the agreement to sell could not be completed on account of some fault on the part of the petitioner/landlord, respondent/tenants will not be liable to be ejected from the premises in question. The main case between the parties regarding the specific performance of contract was remanded on the basis of a compromise between the parties to the Civil Court for its decision within next three months. The result of the suit is still awaited. In these circumstances, both the impugned orders are not sustainable and as such are set aside. With this observation, this petition succeeds and is allowed leaving the parties to bear their own costs. H.B.T./A-1252/L???????????????????????????????????????????????????????????????????????????????? Petition allowed.