2011 PLP 860 (MLD)

FAISAL ARAB, J.

The plaintiff is admittedly tenant of the suit property bearing Plot No.D-26, measuring 1000 square yards, situated at North Nazimabad, Block D, KDA Scheme No.2, Karachi. The case of the plaintiff is that on 25-2-2000 he entered into an agreement for purchase of the suit property from its owner Haji Zain-ul-Abedin for a total sale consideration of Rs.8,500,000 (Rupees eight million five hundred thousand only) and paid Rs.I,000,000 (Rupees one million only) before the execution of sale agreement and the remaining balance amount of Rs.7,500,000 (Rupees seven million five hundred thousand only) were to be paid within 84 months i.e. on or before 25-2-2007. It was one of the terms of the alleged sale agreement that till the finalization of the transaction the plaintiff shall remain as tenant. The counsel for the plaintiff has argued that at all material times the plaintiff was ready and willing to complete the sale transaction and in this regard plaintiff also served a notice upon the defendants, who are legal heirs of the owner late Zain-ul-Abedin in December, 2007, calling upon them to complete the transaction, but they failed to respond and therefore the plaintiff tiled the present suit on 24-1-2008. The plaintiff has prayed for injunctive order directing the defendants not to evict the plaintiff from the suit property till the suit is finally decided. It is also the case of the plaintiff that in 2009 after obtaining orders from the Court the entire balance sale consideration of Rs.7,500,000 (Rupees seven million five hundred thousand only) was deposited with the Nazir of this Court. The counsel for the defendants Nos.7 to 11 has denied the execution of sale agreement by the father of defendants with the plaintiff. He has contended that taking advantage of the dispute inter se of the heirs in Suit No.692 of 2007 the present suit has been filed and prior to the notice issued in December, 2007, during the entire period of about eight years, the plaintiff never claimed that he had entered into any transaction of sale with the father of the defendants Zain-ul-Abdeen. Taking the agreement to sell on its face, clauses (3) and (10) of the agreement clearly show that the plaintiff was entitled to occupy the suit property only in his capacity as tenant and was obliged to pay the monthly rent. The constructive possession pursuant to the sale was to be handed over to the plaintiff at the time of finalization of the transaction. Therefore, the occupation of the suit property by the plaintiff was only in his capacity as tenant and not pursuant to the agreement to sell dated 25-2-2000. Furthermore., the plaintiff within the period stipulated in the disputed agreement to sell had also not made payment of the balance sale consideration in order to demonstrate on his part his readiness and willingness to perform his part of the bargain if at all an agreement to sell existed. These two factors do not entitle the plaintiff to occupy the suit premises under the disputed agreement to sell. However, this would not debar the plaintiff to occupy the suit premises as tenant, which is to be regulated by the "rent laws and in this regard the defendants Nos.7 to 11 have obtained eviction orders from the Court of competent jurisdiction. The right of the owners to seek eviction of the plaintiff on account of committing default in the payment of rent cannot be taken away when admittedly the occupation of the plaintiff is in his capacity as tenant. Hence, C.M.A. No.8549 of 2010 is dismissed. The authenticity of the sale agreement is obviously to be determined when the parties would adduce evidence in the case. H.B.T./J-3/K Application dismissed.