1995 PLP 287 (CLC)

Mian Iqbal Hussain Kalanauri for Respondent. Date of hearing: 10th November, 1994. This petition under section 115, Civil P.C. from the agreed judgments of the lower Courts arose from a civil suit instituted by the respondent for ejectment of the petitioner from a residential house situated at Islamabad and for recovery of arrears of rent/mesne profits at the specified rate till actual vacation of the house by the petitioner. Suit was decreed in the trial Court on 14‑3‑1989 for the ejectment of the petitioner with the liability to pay arrears of rent, from the month of March, 1986 to May, 1986'at the rate of Rs.6,000 per month totalling Rs.18,000 and similar rent at similar rate till the vacation of the suit house by the petitioner. In appeal preferred by the petitioner, the decree passed by the trial Court was affirmed on 11‑10‑1994 by Additional District Judge, Islamabad. In course of first appeal, by an order passed on 20‑4‑1989, proceedings were stayed for the time being subject to deposit of the decretal amount i.e. rent at the prescribed rate up to the month of April, 1989 in Court till 20‑5‑1989. Mr. Abdul Basir Oureshi, Advocate, learned counsel for the petitioner stated at the Bar that the rent for the above period was deposited in Court by the due date and the rent for the subsequent period was neither paid to the respondent nor deposited in Court. Now a reference to facts of the case giving rise to the instant civil revision. Respondent was owner of house No. 23 in Street No. 17 of sector F‑7/2, Islamabad. It was let out in the month of September, 1981 by him to the petitioner for a term of eleven months at the rate of Rs.5,000 as rent per month. Later, the rent of the house was enhanced to Rs.6,000 per month. There was no dispute on the amount of monthly rent paid for the house. Tenancy period initially fixed had run out. It was not extended further by a deed in writing. However, petitioner continued his possession on the house in question. On 29‑4‑1986, respondent gave a legal notice to the petitioner for terminating his tenancy and vacation of the house by him. Petitioner did not respond to the legal notice. On 19‑5‑1986, respondent instituted a civil suit for possession through ejectment of the petitioner from the house and also recovery of rent at the rate of Rs.6,000 for three months with effect from March, 1986 to May, 1986 and mesne profits at the rate of Rs.700 per day till actual delivery of possession of the house to him by the petitioner. Upon being served in the suit, petitioner submitted his written statement. He took a few preliminary objections to the maintainability of the suit filed against him. and denied liability to vacate the house. Principal defence taken was that the petitioner held the house as rent‑paying tenant of Muhammad Sharif who had concluded an agreement for purchasing it from the respondent on 17‑12‑1985, renewed on 2‑1‑1986, for a sale price of Rs.20,00,000 and paid Rs.3,00,000 as advance money to him. Pleadings gave rise to the issues, correctly reproduced in the judgments of the lower Courts. Thereafter, both sides gave evidence in support of their respective versions. Respondent opened the case. His evidence consisted of his solitary statement on oath regarding facts of the case. His rebuttal was comprised of the testimony of the petitioner and Muhammad Sharif as D.Ws. 1 and

2. Receipts showing payment of rent by petitioner to Muhammad Sharif were not tendered in evidence in the testimony of the petitioner as D.W.

1. These were sought to be put in evidence in the statement of Muhammad Sharif as D.W.2. Respondent objected to their admissibility uin evidence. The trial Court postponed its decision on their admissibility to record to a later point of time and allowed the receipts merely to be placed on its File. These receipts Were twenty‑one in number. Upon scrutiny of evidence adduced at the trial, the trial Court decreed the suit. The appeal preferred from the decree was dismissed by the lower Court. Thereupon, instant civil revision was filed in this Court On 20‑10‑1994, Raja Afrasiab Khan, J. issued notice to the respondent for 8‑11‑1994 and maintained status quo meanwhile. On the adjourned date, civil revision could not be taken up for hearing and was further postponed for today's date of hearing. On the commencement of the hearing, Mr. Abdul Basir Qureshi, Advocate, learned counsel for the petitioner informed me that on a petition to the Supreme Court, a stay was likely to be issued. The Office was kept in touch with the office of the Supreme Court. Meanwhile, the hearing in the civil revision proceeded. It concluded at about 12‑40 p.m. Till then, no order for stay was shown to have been issued by the Supreme Court. Upon conclusion of the hearing at about the same time, civil revision was dismissed on merits. I made a separate note of it on file of this Court. At this stage, a brief reference to the facts in parallel litigation in the suit for specific performance instituted by Muhammad Sharif against the respondent in respect of an agreement to sell respecting the house is necessary. On 17‑12‑1985, respondent agreed for the sale of the house for the sum of Rs.20,00,000 to Muhammad Sharif. Rs.50,000 were paid in advance at the time of execution of sale agreement. A further sum of Rs.2,50,000 was payable on 2‑1‑1986 and the balance consideration in the sum of Rs.17,00,000 was payable on 15‑3‑1986 at the time of finalization of the sale of the house: Agreement to sell concluded on 17‑12‑1985 was renewed on 2‑1‑1986 by another agreement reduced in writing. Both the agreements were on file. A sum of Rs.2,50,000 was shown to have been paid towards the sale price of the house on the same day. As the sale of the house could not materialize as agreed between the parties, Muhammad Sharif instituted a civil suit for its completion in the Civil Court at Islamabad on 30‑3‑1986. Respondent contested the suit. The trial Court dismissed the suit on merits on 14‑3‑1989. A Division Bench of this Court in R.FA. No. 25 of 1989 maintained the judgment of the trial Court. Petition for Leave to Appeal No. 300 of 1993 from the judgment of the High Court was allowed on February 10, 1993. The appeal is yet sub judice before the Supreme Court of Pakistan. In view of it, I shall say little about it except where it is absolutely necessary for the purpose of the present civil revision. At the hearing, learned counsel for the petitioner argued that the Courts below overlooked the record and misapplied the legal principles to it. Some comments were made on the conduct of the first Court of appeal. It was unnecessary to make a reference to them because the entire record of the suit was read out in Court to me for its examination on merits. Petitioner was made free from the inhibitions of section 115, Civil P.C. for hearing of the Civil Revision. Therefore, his grouse for a remand was not justified because the High Court was competent to re‑examine the matter afresh for making of an appropriate order in the case. Seen from the above, short question for decision in the civil revision was; whether petitioner was still the tenant in possession of the house holding under the respondent or conversely put he had validly attorned to Muhammad Sharif and paid the rent of the house to him for exonerating him from the liability towards the respondent. Initial induction of the petitioner as tenant in the house by the respondent was not disputed. Rate of monthly rent payable for the house was also not in question. It was not in dispute that rent till the month of February, 1986 was paid by the petitioner to the respondent. Agreement to sell was executed on 17‑12‑1985. Agreement clearly recited that possession of the house agreed to be sold was not transferred to Muhammad Sharif. By that time, only Rs.50,000 were paid in advance out of total agreed sale price of Rs.20,00,

000. Rs.2,50,000 were paid upon renewal of the agreement on 2‑1‑1986. Yet, Rs.17,00,000 were payable under the agreement to sell the house to the respondent. Renewed agreement also did not recite transfer of possession of the house to Muhammad Sharif. Nor, did it assign to him right to recover monthly rent from the tenant in possession of the house. Rent per month was Rs.6,

000. It was not an unsubstantial amount. It is unthinkable that the owner could have parted with his right to recover monthly rent and transfer mediate possession of the house to Muhammad Sharif for clearly risking further payment of Rs.17,00,000 to him. If he intended to transfer actual possession of the house or right to receive rent from the tenant to Muhammad Sharif, nothing was easier for him than to make a reference for it in writing either in the first or second agreement for the sale of the house. Respondent did not authorise his tenant in writing for payment of rent in future to Muhammad Sharif. Respondent served a legal notice upon the petitioner for terminating his tenancy and vacation of the house by him. The petitioner did not respond in writing. Petitioner asserted in his evidence that respondent orally called upon him to attorn to Muhammad Sharif. Muhammad Sharif accompanied him on that occasion. Muhammad Sharif also asserted similarly in his testimony. Respondent denied it in his statement on oath in Court. Lower Courts did not believe the version of the petitioner and in my opinion rightly because the petitioner wished to save his possession on the house by taking shelter under Muhammad Sharif, who was in litigation with the respondent in Courts. Both were beneficiaries of the alleged attornment. facts and circumstances of the case belied attornment of tenancy by the petitioner in favour of Muhammad Sharif. On record, there was no convincing and reliable evidence to support attornment by the petitioner to Muhammad Sharif under the direction ‑of respondent. Therefore, the upilateral change of direction by the petitioner was not warranted for defeating his clear liability towards the respondent. It was a mistaken and unwise stance of the petitioner and the Court in face of the existing record could not accept it. As far the rent receipts, these were not tendered in evidence in the statement of the petitioner. These were expected to be in his custody and he was to bring them on record in accordance with law. There was no plausible explanation from Muhammad Sharif to hold their custody. Upon production of the receipts in Court, the respondent objected to their admissibility. The trial Court deferred its decision on the objection raised by the defendant but gave none: No objection on this score was raised in the memorandum of first appeal filed in the Court below. Also, there was no reference to them in the judgment of the first appellate Court. Inference from it was that the point was not urged at the hearing. Furthermore, in para. 15(c) of grounds of revision, an oblique reference was made to the receipts but these were not made part of the record of the civil revision in this Court. As it was held above that the petitioner was tenant of the house holding tinder the respondents, payment of rent, if any, to Muhammad Sharif was inconsequential. Furthermore, favourable decision in the suit for specific performance may not have any bearing on the result in the ejectment suit and continued liability of the petitioner for payment of rent/mesne profits to the respondent. There was no cessation of tenancy between the petitioner and respondent. Viewed in this perspective, there was no fault in the impugned judgments of the lower Courts. I would, therefore, uphold and affirm them. As a result of the above, civil revision is dismissed with costs. Petitioner is allowed three months to vacate subject to deposit/payment of rent at the rate of Rs.6,000 from the month of May, 1989 up to date within a month from today. Otherwise, ejectment decree for possession and arrears of rent/mesne profits shall forthwith be executed and its fruits realized to the respondent by the Execution Court with despatch and promptitude. AA./H‑146/L ????????????????????????????????????????????????????????????????????????? Revision dismissed.