2002 PLP 1686 (CLC)

MALIK HAMID SAEED, J.‑‑‑ Awal Zaman, Khiyar Zaman and Janat Gul, respondents Nos. l to 3 herein have filed an application under section 13 of the Rent Restriction Ordinance, 1959 in the Court of learned Rent Controller, Peshawar, respondent No.5, against Mansoor Ahmad, respondent No.4 for his eviction from Shop No. CC 915/3541/3023 situated in Bazar Karimpura on the ground of default in payment of rent and personal need. It is averred in the plaint that the shop in question is consisted of two portions (two Dars) in which the respondents (petitioners in the eviction petition) were tenants under its original owner Khawaja Maqbool in none of the Dars, whereas in the other Dar Mansoor Ahmad (respondent in the eviction petition) was a tenant, but later on they purchased the whole shop from the original owners on a sale consideration of Rs. two lacs vide registered sale‑deed, dated 8‑12‑1998. They put the tenant Mansoor Ahmad on notice about the change of ownership and demanded payment of rent, but he refused.

2. During the course of proceedings, one Mst. Naseeb Jan, widow of Muhammad Aslam Khan filed an application for her impalement in the eviction petition, as she was owner of the disputed shop. The said application was allowed by the learned Rent Controller, respondent No.5. The respondents Nos.1 to 3 assailed such orders of impalement up to this Court but their Writ Petition No.1330 of 2000 was also dismissed on 30-1-2001.

3. In her written statement, Mst. Naseeb Jan based her claim of ownership over the suit shop by relying on two registered deeds vide which Khawaja Maqbool had agreed to sell the said property to Mst. Naseeb Jan on a sale consideration of Rs.9,

000. According to her, the said agreements were executed as early as on 4‑6‑1966 and 20‑4‑1967. Through the said agreements, a sum of Rs. 5,000 was paid to Khawaja Maqbool Ahmad whereas the remaining amount was to be paid after obtaining Permanent Transfer Deed (PTD) from the Settlement Department, but unfortunately he died in the year 1970 without obtaining the said PTD. However, possession of the shop was given to her, who inducted tenant in the two Dars. Mansoor Ahmad was tenant under Naseeb Jan in one of the Dars since 1973‑

74. The other portion of the shop was later on given in the tenancy-ship of Awal Zaman, respondent No.1, who duly executed a rent deed on 20‑11‑1995 in favour of Mst. Naseeb Jan.

4. The legal heirs of late Khawaja Maqbool when obtained PTD from the Settlement Department about the shop in question, they sold the same to Awal Zaman and others through a sale‑deed.

5. Mgt. Naseeb Jan when came to know about this development, she filed a suit for specific performance against respondents Nos. 1 to 4 and the legal heirs of Khawaja Maqbool.

6. Awal Zaman etc. brought an ejectment petition against Mansoor Ahmad, respondent No.4, in the Court of Rent Controller, Peshawar. Mst. Naseeb Jan applied for her impleadment in the case and she was allowed to contest the application. Awal Zaman etc. then filed an application for issuing directions to Mansoor Ahmad, tenant, to deposit the rent in Court, which was allowed. Mst. Naseeb Jan filed an application that till the decision of the civil suit, the ejectment proceedings may be kept pending, but the request of Mst. Naseeb Jan was turned down by the learned Rent Controller vide impugned order, dated 13‑2‑2000, hence the legal heirs of Mst. Naseeb Jan have filed the instant writ petition for setting aside the impugned orders and stay of the ejectment proceedings till the decision of the civil suit.

7. We have heard the learned counsel for the parties and have also gone through the material placed on file.

8. So far as the factual aspect of the case is concerned, the legal heirs of Mst. Naseeb Jan are having two agreements to sell, duly registered and executed by late Khawaja Maqbool in favour of late Mst. Naseeb Jan. Awal Zaman, who claims to have purchased the suit property from the legal heirs of Khawaja Maqbool, himself has executed a rent deed with Mst. Naseeb Jan in the year 1995 vide which he occupied one of the Dar of the suit shop under the tenancyship of Mst. Naseeb Jan. The other tenant Mansoor Ahmad also admits in his written statement that he was inducted in the suit shop as tenant by the husband of Mst. Nasedb Jan, namely Muhammad Aslam. The suit for specific performance was filed by late Mst. Naseeb Jan on 24‑6‑1999 i.e. earlier than the eviction petition filed by Awal Zaman against Mansoor Ahmad, tenant. Both the matters i.e. the suit for specific performance as well as the ejectment. petition are pending adjudication in the same Court and the learned trial Judge is dealing with such cases in his capacity as Civil Judge as well as Rent Controller respectively. In these circumstances, the question of title was of course, of a serious nature between the parties.

9. The learned counsel for the petitioners argued that not only the learned Rent Controller could not validly decide the issue of relationship of landlord and tenant in favour of the landlord, as Mst. Naseeb Jan, a party to the proceedings, had created serious doubt about the ownership of the landlord over the disputed property by producing sufficient documentary proof, but the lady/respondent had also instituted a suit for specific performance which was pending in the same Court for disposal, hence. the learned Rent Controller was required to have first decided the suit for specific performance and should have stayed proceedings in the ejectment application till decision of the said suit, The learned counsel for the petitioner in support of his contention relied on the judgments reported as Rehmatullah v. Ali Muhammad another 1983 SCMR 1064 and Fazal Baqi and another v. Rehmatullah 1995 MLD 303.

10. The learned counsel for the respondents argued that irrespective of the fact that Mst. Nasseeb Jan had filed a suit for specific performance against the respondents and the legal heirs of Khawaja Maqbool, nevertheless, the .learned Rent Controller was very much competent to proceed with the ejectment petition as mere pendency of the suit for specific performance is not a good ground for stay of proceedings in the eviction petition. In support of his contention, the learned counsel for the respondents relied on judgments reported as Mrs. Annetta Haroon v. Mst. Sughran Bibi and others 2000 SCMR 716 and Muhammad Daud v. Mst. Surriya Iqbal and another PLD 2000 Pesh. 54.

11. In the authority reported in 1983 SCMR 1064, the Honourable Judges, of the august Supreme Court of Pakistan have held that the requirement of the relevant law , contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his possession as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be, to decide the issue against the landlord and advise him to first get his title established before seeking ejectment. In the authority reported in 1995 MLD 303, it is held that the Rent Controller cannot validly decide the issue of relationship of landlord and tenant in favour of landlord particularly when serious doubt about propriety of his claim to the title of property in question has emerged. The order of ejectment passed against the tenant was set aside as the material brought on record by the tenant had made claim of the landlord doubtful. It is further observed that the tenant and landlord in such a case should be advised to seek remedy in the Civil Court. In this case, the possession of Mst. Naseeb Jan over the suit shop is evident from the fact that it was she who inducted Awan Zaman etc. in the suit shop, as her tenants through a rent deed duly executed between the parties.

12. With utmost respect, the authorities reported in 2000 SCMR (sic) and PLD 2000 Pesh. 54 are quite distinguishable from the facts and circumstances of the present case. In the authority reported in 2000 SCMR (sic), the tenant had denied the relationship of landlord and tenant between the parties on the strength of a sale agreement executed between the tenant and other co‑owners of the property, therefore, the Honourable Bench of the august Supreme Court of Pakistan held that the tenant did not claim any agreement to sell from the petitioner but claimed the agreement from the other co‑owners, therefore, the order for stay of proceedings was not correct in the circumstances of the case: Similarly , in the authority reported in PLD 2000 Pesh. 54, it has been held that mere pendency of a civil suit regarding ownership of premises in question would not automatically stay the proceedings of eviction petition under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. It was found that the party claiming as ownership over the suit property had lost his case in the Civil Court to establish his ownership, the appeal was also dismissed and mere a revision petition was pending, which provided no reasonable cause for stay of proceedings before the learned Rent Controller. Hence the facts and circumstances of the case reported in the above referred authority are also different from the case in hand, as in this case a person, who has been inducted by Mst. Naseeb Jan as tenant in the suit shop is now claiming his ownership over the suit shop having been purchased from the legal heirs of Khawaja Maqbool. It is not a simple case of the denial of relationship of landlord and tenant between the parties, but the very ownership is in dispute between Mst. Naseeb Jan and Awan Zaman etc. in which the tenant has nothing but is concerned about his tenancy rights. Both the claimants are having documentary proof. For declaring the act of the legal heirs of Khawaja Maqbool, illegal and ineffective upon her rights she has also filed a civil suit for specific performance against them. The said suit is still pending hence keeping in view the seriousness of the claim of Mst. Naseeb Jan (now represented through legal heirs/petitioners in this petition) they are entitled to the interim relief of stay of proceedings before the learned Rent Controller till decision of the civil suit.

13. The learned Rent Controller instead of staying proceedings in the rent case has preferred its continuation along-with the civil suit for specific performance and the order being interlocutory in nature could not be assailed by the petitioners in appeal hence the petitioners are having no other remedy against the said order except to file the instant writ petition, which in view of the nature of order passed by the Rent Controller, is maintainable.

14. For the aforesaid reasons, this writ petition is accepted to the extent that the impugned order of the learned Rent Controller, whereby he refused to stay proceedings in the rent case, is set aside and proceedings before the learned Rent Controller in the ejectment petition are hereby stayed till decision of the civil suit for specific performance filed by the predecessor‑in‑interest of the present petitioners. No orders as to costs Q.M.H./M.A.K./563/P Petition allowed.