2001 PLP 1855 (MLD)

2. Being aggrieved of the orders, dated 4‑10‑2000 as well as 11‑10‑2000 the instant writ petition has been filed.

3. Arguments have been heard and record perused.

4. Stand of the learned counsel for the petitioner is that as the ejectment petition as well as the proceedings regarding the suit for specific performance of an agreement relates to the same property, so it is in the fitness of the circumstances, that both the matters be consolidated and disposed of by the same Court. In support of his contentions he has placed reliance on "Muhammad Amin and others v. Syed Kazim Hussain and others" (1995 MLD 446 (Lahore).

5. Conversely the impugned orders have been supported by the learned counsel for the respondents Nos.2 and

3. To supplement his contentions he submitted that the F mere fact that a suit for specific performance regarding same property has been filed does not mean that ejectment proceedings should be stayed till the disposal of that suit. He further argued that ejectment proceedings are to be conducted by a Rent Controller whereas suit for specific performance is to be decided by a Civil Court. He further submitted that under similar circumstances it has been held by the apex Court of this country that proceedings in the ejectment petition be not stayed till the disposal of the suit for specific performance and placed reliance on "Haji Jumma Khan v. Haji Zarin Khan" (PLD 1999 SC 1101). He thus submitted that there is no force in this writ petition and the same be dismissed.

6. The only point which requires determination is that, if in the present circumstances, law requires that proceedings initiated for the ejectment of this petitioner be stayed till the disposal of his suit for specific performance.. p` filed against respondents Nos.2 and

3. The stand of petitioner is that as he has filed suit for specific performance against the landlords/respondents Nos.2 and 3, so the proceedings pertaining to his ejectment be stayed till the finalization of his suit. There is no doubt that petitioner has filed a suit for specific performance of an agreement in respect of the same property which is the subject‑matter of an ejectment petition. However, it is fact that stand of petitioner has been controverted by the landlords/respondents Nos. 2 and 3 as is evident from the record. The mere fact that an ejectment petition has been filed for the eviction of the petitioner means that respondents Nos.2 and 3 have to prove their stand failing which they shall suffer the consequences. Similarly the petitioner shall have to prove his stand .independent of the evidence which he shall be adducing in the ejectment proceedings. Again it is fact that both these proceedings are to be conducted by the different forums; as rent proceedings are to be adjudicated upon by a Rent Controller whereas suit for specific performance is to be decided by a Civil Court.

7. It may also be mentioned here that if the proposition propounded by the petitioner is accepted then it will be very easy and convenient for a tenant to prolong such ejectment proceedings by filing such flimsy suit. The question about genuineness or otherwise of said sale agreement is obviously dependent upon final determination by Civil Court of competent jurisdiction. At this stage the validity of sale agreement relied upon by the petitioner/tenant is vigorously' challenged by respondents Nos.2 and 3/landords. Therefore, till the time that petitioner is able to establish his claim for, specific performance on the basis of alleged agreement; respondents/landlords would continue to enjoy the status of being owner and landlords of the premises. Relationship between the parties till such time would be regulated by the terms of tenancy. Under similar circumstances, the apex Court has held in. "Mst. Azeemun Nisa Begum v. Ali Muhammad (PLD 1990 SC 382), that ejectment proceedings could not be resisted by taking shelter under section 53‑A of the Transfer of Property Act. Relevant observations read as under:‑‑ "For the foregoing reasons I am unable to subscribe to the conclusions arrived at by the learned Single Judge and hold that the respondent was not entitled to protect his possession and resist ejectment, under the provisions of section 53‑A of the Transfer of Property Act and, the relationship of landlord and tenant continued to exist between the parties even after the execution of the agreement of sale. As admittedly the respondent had failed to tender rent to the appellant the eviction order passed against him by the Rent Controller was fully justified. I would, therefore, allow this appeal, set aside the judgment of the learned Single Judge of the High Court and restore the order passed by the Rent Controller: There will be no order as to costs." The above view has been reiterated in case Iqbal v. Mst. Rabia Bibi (PLD 1991 SC 242). Relevant observations read, thus: "Be that as it may, in some recent judgments this Court has taken the view that in case like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been rued that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well‑known bar of estoppel in this behalf he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the costs of lendord/owner. It should be at the cost of himself and he must vacate‑‑though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani (PLD 1984 SC 17), Allah Yar and others v. Additional District Judge and others (1984 SCMR 741) and Prof Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1). " Similarly following view has been taken in case Mat. Bar Bibi and others v. Abdul Qadir and others (1996 SCMR 877):‑‑ "However, the Judge in Chambers of the High Court has taken Pain and elaborately discussed the issues and assessed the value of the agreement deed and other documents. He has referred to various authorities in that respect end has come to the conclusion that a tenant cannot be allowed to retain his possession on such agreement till decision of their title by a Civil Court of competent jurisdiction. We do not find and defect with his observations and conclusion. The factum of default of the payment of the rent and the requirement of the landlord has been proved. We have neither been persuaded nor satisfied that any defect lies with the judgment of the Judge in Chamber of the High Court which may call for interference of this Court in its appellate jurisdiction. The appeal fails which is dismissed accordingly with costs."

8. On the basis of dictum laid in afore‑quoted reports it is held that petitioner cannot legitimately resist maintainability of ejectment proceedings pending against him on the ground of sale‑agreement. Suffice it to observe p that genuineness or otherwise of such agreement and its consequential effect will be independently determined by the Civil Court. There does not appear any material defect or legal infirmity with regard to conclusion drawn in the impugned order. Accordingly writ petition having no merit is dismissed. H.B.T./M‑618/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.