2021 PLP 762 (YLR)

FAHIM AHMED SIDDIQUI, J.

By means of this appeal the appellant has assailed the order dated 17-02-2017, passed by the learned Single Judge of this Court. Through the impugned order, the learned Single Judge has been pleased to dismiss the application of the appellant filed by him under Section 12(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.).

2. The factual substance of the case is that the appellant is a Trust and claimed ownership of a building known as HASHMI CHARITABLE TRUST BUILDING, erected on Plot No. RB-10, New Urdu Bazaar, Mohan Road, Ram Bagh Quarter, Karachi. The respondent No. 1 (Decree Holder) succeeded in getting a money decree against the respondents Nos. 2 to 4 (Judgment Debtors) for an amount of Rs.42,80,000/- in a summary Suit No. 912/2007. The respondent No. 1 filed an Execution Application (Ex. Application No.21/2008) for recovery of the said decretal amount and got Shops Nos. 34 and 38 at the ground floor and Shops Nos. 41 and A-15 at first floor of the aforementioned building. The said shops were allegedly under the tenement of respondents Nos. 2 to 4 on PUGREE basis but as per the appellant, the same were rented out to Messrs Rahbar Publishers. Since the goods lying in the said shops could not satisfy the decretal amount, therefore, after bearing in mind the value of goodwill, an order was passed to transfer the tenancy rights to the respondent No.1. Subsequently, the Nazir of this Court was directed to execute a tenancy agreement on behalf of the appellant in favour of the respondent No. 1.

3. We have heard the arguments advanced and have gone through the available material in the light of valued submissions made before us. We have also gone through the law and the case-law cited at the bar.

4. Mr. Abrar Hassan, the learned senior advocate appearing on behalf of the appellant, has strenuously contended before us that the Court has no power to direct the Nazir to execute rent agreement on behalf of the appellant. He contends that the law does not acknowledge the transfer of tenancy right without the will and wish of the landlord. According to him, the judgment debtors have no nexus with the original tenants i.e. Messrs Rahbar Publishers, as such the order in execution application was patently illegal. Mr. Hassan, after referring to the Execution Application, submits that in the very Execution Application, no request for transfer of tenancy was made, as such the Executing Court could not pass an order out of the scope of the Execution Application. According to him, it is clear that under the law, tenancy rights are not transferable and the same are not a saleable commodity, hence in the execution of a money decree, no order for the transfer of tenancy right could be passed. He submits that the property belonged to the appellant, as such they were the necessary party but the order in Execution Application was passed behind the back of the necessary and proper party. He contends that since the appellant was not the party, therefore; the order was passed without hearing him. He admits that the appellant was called by the Court but for verification about the tenancy only and he informed the Court that Messrs Rahbar Publishers were the tenants of the appellant. According to him, it was never told to the appellant that the tenancy was going to be transferred, as such he was condemned unheard. In support of his contentions, he relied upon the cases reported as Allah Ditta v. Ahmed Ali Shah (2003 SCMR 1202), Muhammad Ali v. Ghulam Sarwer (1989 SCMR 640) and Allied Bank of Pakistan Ltd. v. Rashid Hayder Rizvi (1989 MLD 3602).

5. Mr. Naeem Iqbal, learned counsel for respondent No.1 points out that it is the third round of litigation and now the appellant has come forward to support the Judgment Debtor. He submits that in the order for execution the ground of fraud, misrepresentation and without jurisdiction is not available, as such the application under section 12(2), C.P.C. was rightly dismissed. He submits that the Court had issued notice to the appellant, who had appeared; therefore, it cannot be said that the order was passed behind the back of the appellant. He submits that the original order i.e. order in Execution Application has not been challenged, as such the same had attained finality. He submits that the lease rights are transferable as per provisions of Transfer of Property Act, as such there was nothing wrong in the impugned order. He submits that the ownership of the appellant was not disputed and the respondent admits him as the landlord and he may continue to receive rent as he was receiving from the previous tenant. According to him, 'Purchee Badal' is an acknowledged practice in cases of tenancy based on PUGREE, therefore, as per customary practice, PUGREE based tenancy was not only sold but it is also transferable. He submits that it is actually a lease and under the Transfer of Property Act (hereinafter referred to as 'TOP Act'), a leasehold right can be sold out and transferred, as such there was no flaw in the directions of the Court to Nazir. According to him, before execution, a proper inquiry was conducted as per the provision of Order XXI, Rule 58, of C.P.C. He fortifies his arguments by relying on the cases reported as T.E.S. Pvt. Ltd. v. Indian Chemicals (AIR 1959 Asam 61), Muhammad Hanif v. Mumtaz Ahmed (PLD 1986 Karachi 16) and Muhammad Aslam v. Hanif Abdulla and Brothers (2003 SCMR 1667).

6. In the instant case, several aspects need consideration. It is an admitted position that the appellant was the owner and landlord of the premises in question. However, we are unable to agree with Mr. Malik Naeem lqbal that it is a lease as defined under TOP Act. It is worth noting that the term 'lease' is defined under Section 105 of the TOP Act, which means "a transfer of a right to enjoy property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, share of crops, service, or any other thine of value, to be rendered periodically or on specified occasions, to the transferor by the transferee, who accepts the transfer on such terms". The transferor is called a lessor and the transferee is called a lessee. Hence, in the case of a lease, the relationship of lessor and lessee is always one of a contract. A lease, as defined under Section 105 of TOP Act may be of three kinds. It may be a lease for a certain time or a periodic lease or a lease in perpetuity. We are concerned here with a case of a periodic lease as provided under Section 106 of TOP Act. No doubt, it is similar to the common rental practice of immovable properties but the fine distinction is that the rental properties are governed under the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as 'the Ordinance') and being special law it prevails over the provision of Section 106 of TOP Act. Now a question arises, whether rental rights can be transferred without the will and wish of the landlord. Although, nothing of this sort is mentioned in the Ordinance but at the same time it does not recognizes induction of another tenant in the premises by the existing or previous tenant. The law has observed it with a legal term 'sub-tenancy' i.e. a tenant without the will and wish of a landlord, and if it is established that there is a sub-tenant in the premises, the tenant and sub-tenant both will face forced ejectment from the property.

7. Nevertheless, in the instant case, the respondent No. 1 is claiming that the shops in questions were given to the respondents Nos. 2 and 3 on PUGREE based tenancy and it is customary transferable tenancy after receiving agreed PUGREE by the previous tenant from the subsequent tenant. According to the counsel for respondent No. 1, on the prevailing practice of PUGREE, the tenancy can be transferred and instead of Judgment Debtors (respondents Nos. 2 and 3), the Decree-Holder (respondent No. 1) would be the new tenant of the appellant. No doubt PUGREE is a prevailing practice and sometimes it is referred to as GOODWILL in English and SALAMI. It is worth noting that the term GOODWILL in respect of change of tenancy or PURCHEE BADAL, is not a synonym to the 'goodwill' of business, as such the same cannot be equated to the intellectual property rights. No doubt, PUGREE is a prevailing practice but the same is not acknowledged as a lawful practice by the superior Court beside the transaction based on PUGREE is barred as per provisions of Section 23 of the Contract Act, 1872. In this respect reliance may be placed on a case of this Court reported as Mst. Sughra Kauser v. Muhmmad Siddique Manan (1992 MLD 903).

8. Another delicate issue was not properly addressed before the executing Court, which pertained to the very issue of execution of a money decree. The modes of execution of money decree are mentioned in Rule 30 of Order XXI of C.P.C., according to which money decree can be executed by attachment of the property belonging to the Judgment Debtor. Now, question arises whether the Executing Court can consider PUGREE, as a real or abstract property belonging to the respondents Nos. 2 and 3 (i.e. Judgment Debtors), while it is also a complicated issue whether there existed a relationship between the applicant and respondents Nos. 2 and 3 of landlord and tenant based on PUGREE and its effect on a third party. We, therefore, consider it appropriate to allow this appeal and set aside the order 22-12-2009 passed in Execution Application No. 21/2008 and remand the same thresh out all the intricating questions of law and fact in this respect for which surely parties may need to bring evidence. We also observe that the properties in question shall remain attached and the Nazir of this Court is directed to take over the possession of the said properties, while the learned Single Judge will proceed as per Provisions of Order XXI, Rule 58 to determine the controversy between the parties. We are of the view that the investigation by the learned Single Judge is restricted to the following issues:

1. Whether the properties in question were rented out by the appellant to the Judgment Debtors (i.e. respondents Nos. 2 and 3) and the same are still under their tenement?

2. If the properties were rented out to the respondents Nos. 2 and 3 whether the same can be transferred to the respondent No.1 without the will and wish of the Appellant i.e. the land-lord? The parties are also at liberty to file additional pleadings in the light of this judgment. With these observations, the instant appeal is allowed in the above terms. MH/H-16/Sindh Case remanded.