1986 PLP 2577 (CLC)

Kh. Sharful Islam for Respondent. Dates of hearing: 20th and 23rd January, 1986. This appeal arises from an ejectment order issued on 17‑11‑1984 by VIII Senior Civil Judge and Rent Controller, Karachi. The relevant facts are that the disputed shop in Liaquat Market, Malir was on rent with the appellant at Rs.60 per month from 1972. The respondent is a landlord and filed an ejectment case on 21‑1‑1976 on the ground that default had been committed in respect of rent of October, 1975 and January 1976 and that the premises were needed for his bona fide use as he was jobless and wants to settle in his own business. In the written statement the appellant alleged that he had paid rent upto November, 1975 and thereafter sent money order for rent of December, 1975 and January, 1976, which was refused and thereafter he has deposited the rent in Miscellaneous Application No. 551. of 1976. During the pendency of this case in March 1980, as agreement of sale of the said shop for a consideration of Rs.46,000 had been entered into between the parties and the appellant had paid Rs.6,000 (six thousand) as advance. Three issues were framed; whether the opponent is in possession of premises in part performance of agreement for sale and his possession is protected under section 53‑A of T.P. Act; and whether he has committed default in payment of rent and whether the shop is required for bona fide use. The statements of Muhammad Ibrahim P.W. 1 (Exh.5) and Saved Khan Gul P.W. 1 (Exh. 1) were recorded. The Rent Controller came to .the conclusion that the position of the appellant was not protected by section 53‑A of Transfer of Property Act, as he had failed to establish that he had ceased to be a tenant and that the agreement of sale had not stipulated that the appellant will remain in possession of the premises as a part performance of the sale agreement. He further held that the appellant had committed default in payment for the month of October, and November 1975 and that the respondent was in need of the shop for Bakery business. Consequently the ejectment was granted. Mr. Masood Hayat Khan, learned counsel for the appellant had submitted that the findings in respect of default is incorrect inasmuch as the respondent had himself issued a receipt of rent for the months of January and August, 1975 (Exh. 5‑D) and thereafter he issued two more receipts for two months which must be for September and October (Exhs. 5‑E and 5‑F). He, therefore, argued that the rent of October, 1975 was actually paid and acknowledged by the respondent. The submission is correct and Mr. Sharful Islam has not given any reasons as to why Exh. 5‑E and 5‑F should not be construed as receipts of September and October, 1975. In respect of rent of November, 1979 the appellants counsel showed me two money orders coupens Exh. C land Exh. "D" dated 2‑1‑1976 and 23‑1‑1976, where it was clearly mentioned by the appellant that the rent of November 1975 was paid to the son of Ibrahim. It is correct a that Ibrahim in his position has denied that the rent was paid to his son for November, 1975 but Saeed had made definite statement on this point that he paid rent to son of ibrahim and his statement is corroborated by Exhs. "C" and "D" and,' therefore, I came to the conclusion that the rent of November should also be treated as have been paid to the respondent and, therefore, the finding in respect of default in payment of two months rent is hereby set aside. Masood Hayst had argued that finding on issue No. 1 is incorrect and he relied upon P L D 1971 S C 114 (1231); P L D 1976 Lah. 637 and 1983 C L C

739. For the proposition that the defence of section 53‑A of the Transfer of Property Act is available to a tenant to whom the property has been transferred but it has not been done by a registered lease and that a tenant even contracting to purchase a property can make use of provisions of section 53‑A of the T . P. Act and can resist the ejectment proceedings. In the last two cases it has also been observed that the relationship of landlord and tenant comes to an end in such a case. On the other hand, Mr. Sharful Islam has relied upon 1981 C L C 374; where it was held that West Pakistan Urban Rent Restriction Ordinance,1979 being subsequent law, provisions of section 53‑A of the Transfer of Property Act are no bar to ejectment of tenant wilfully default; in payment of rent to landlord, notwithstanding tenant having an agreement for sale of property in his favour, having done the same in furtherance thereof unless shown to be continuing in possession in part performance of the contract. It was further held that since no stipulation has been made about continuation and cessation of tenancy prior to execution of contract to sell the property, the tenant should be deemed to be a tenant holding over, the relationship continued and liability of the tenant to pay rent also continued. Reference in the above case was made to 1976 S C M R 141, the case of Ghulam Ghous v. Jan Muhammad, where the admitted position was that the respondent entered into an agreement to sell the premises in favour of the petitioner, in that case, the agreement was placed on record. The petitioner, there declined to make payment of the rent taking shelter behind the said agreement which did not stipulate exempting the petitioner from the payment of rent till the completion of the sale. It was held by the Supreme Court that "agreement of sale which formed the sheet anchor of the petitioner's case did not exempt him from the payment of rent and, therefore, his continued occupation of the premises in violation of the law could hardly to be called as an advance or a step toward part performance that admittedly the petitioner has never paid the consideration. With respect following the view of the Supreme Court in 1976 S C M R 141, I have examined the contents of the alleged agreement of sale, in this case, Exh. A‑1 and I find that the same is merely a receipt of Rs.6,000 as advance out of the total consideration of Rs.46,

000. Its dated 2‑3‑1980 and there is stipulation that the balance of the amount will be paid within twenty days. There is no stipulation in this alleged agreement of sale that the relationship of landlord and tenant will cease between the parties, nor there is any mention that the possession of the tenant would henceforth be treated as a possession of the transferee under the said agreement of sale. Moreover, nothing is shown to have been done by the appellant in part‑performance of this contract. Mr. Masood wanted to rely upon notice Exh. A‑2, showing that he was prepared to perform the contract but could not do so on account of the breach of the agreement on the part of the respondent. However, mere willingness to perform the contract does not amount to any act which is done in part performance, of the contract. In these circumstances I am of the view that the' relationship between the parties had continued even after this agreement, to be of landlord and tenant, and they are to be governed by this provision of West Pakistan Urban Rent Restrict Ordinance, 1959 and, therefore, the defence under section 53‑A of the T.P. Act was not available to the appellant. Consequently, finding on issue No. 1 is maintained. Incidentally, it may be mentioned here that suit for specific performance of the contract has been filed by the appellant in 1983 and the same is pending. The appellant could claim some relief on the basis of the alleged agreement Exh. A‑1, only if it was ordered to be decreed by the Civil Court and not earlier. In respect of the findings about the personal need the appellant's counsel has pot been able to show me that the premises were not in fact needed by the respondent. I have, however, given my consideration to the question as to whether a person, a landlord who has agreed to sell the property to the tenant during subsistence of the ejectment application can still be said to be in need of the premises. In this respect what is relevant, is that ejectment case had been filed on 21‑1‑1976 and till 1979 only the statement of the respondent No. 1 had been recorded and thereafter in March 1980, the parties entered into a contract about the sale of the property. It appears to me that in the statement made by the respondent it was clear that he was having no job at the relevant time and wanted to run the business of bakery in the said shop. But the application had remained pending for four years and yet he hall not been able to get the possession of the shop and, 'therefore, he entered into the said agreement of sale which stipulated that the entire consideration of Rs.46,000 would be paid to the appellant within twenty days. Therefore, the need of the respondent for securing either a shop or money out of which he could get his need satisfied appears to be apparent. I am quite clear in my mind that the act of B the respondent in contracting to transfer the shop to the appellant did not militate against the personal need which he had established for the shop. I, therefore, reject this appeal on the basis of my findings on issues Nos. 1 and

3. However, I would allow six months time to the ‑appellant to vacate the premises as it is difficult to arrange to obtain the commercial premises in Karachi. This extension of time would be subject to the deposit of rent in time with the Rent Controller. However, since the respondent has received a sum of Rs.6,000 from the appellant as an advance, of consideration for the sale of this shop, therefore, the respondent has to refund the said amount of Its. 6,000 to the appellant before he can claim the possession of the same. The respondent is, therefore, directed to deposit the sum of Rs.6,000 (six thousand only) at the time of making an application for execution of this order. It would be appropriate and in the interest of justice if the specific performance suit filed by the appellant is decided at the earliest by the Trial Court. H . B . T Appeal dismissed