2014 PLP 1744 (SCMR)

AMIR HANI MUSLIM, J.

This petition for leave to appeal is directed against the judgment dated 14-4-2014 of the Lahore High Court, Rawalpindi Bench, whereby the F.A.O. filed by the petitioner against the order of the Rent Controller, Rawalpindi, has been dismissed.

2. Facts material for the disposal of the present Petition are that the respondent filed an ejectment Petition under section 17 of the Cantonments Rent Restrictions Act, 1963, for eviction of the petitioner from property No.9 measuring 421 square meter Survey No.349/9 situated in the compound of Bungalow No.111, Main Murree Road, Rawalpindi (hereinafter referred to as the premises in dispute), inter alia, on the ground of wilful default in payment of rent, personal need for her sons and subletting. It was pleaded therein that the petitioner purchased the premises in dispute from her husband through registered sale deed dated 20-9-1994, and the property was mutated in the record of the Cantonment Board and also in the GLR. The premises in dispute was rented out to the petitioner in the year 1996 wherein the petitioner was running his business of Auto sales and Estate Agency. The monthly rent was initially fixed at Rs.5,000 per month, which was enhanced at times and at the time of filing of Ejectment Petition the petitioner was paying a monthly rent of Rs.50,000 per month.

3. The petitioner resisted the Ejectment Petition by filing written statement, denying the relationship of landlord and tenant. Upon the divergent pleadings of the parties, the Rent Controller framed the following issues:- (i) Whether there is no relationship of landlord and tenant between the parties? OPP (ii) Relief

4. Both the parties adduced evidence in support of their respective pleadings and by the order dated 5-7-2012, the Rent Controller allowed the Ejectment Petition of the respondent and the petitioner was directed to handover vacant peaceful possession of the premises in dispute to the respondent within 45 days. Feeling aggrieved, the petitioner filed F.A.O. in the Lahore High Court, Rawalpindi Bench, against the order of the Rent Controller, which Appeal was dismissed by the impugned judgment dated 14-4-2014. Hence this Petition.

5. The learned counsel for the petitioner has contended that the learned High Court has passed the impugned judgment maintaining the order of the Rent Controller without determining the relationship of landlord and tenant between the parties. He next contended that neither there was any written rent agreement between the parties nor receipt of rent was produced by the respondent to establish that there existed relationship of landlord and tenant between the parties. According to the learned Counsel, the petitioner had purchased the property in dispute from the respondent by virtue of sale agreement dated 24-8-1996 and acquired possession thereof. The entire sale consideration was paid by the petitioner to the respondent and the petitioner was never the tenant of the respondent. He contended that the Rent Controller had allowed the Ejectment Petition, of the respondent without adverting to the material issue of existence of relationship of landlord and tenant between the parties, which is the basic requirement to confer jurisdiction on the Rent Controller, who had allowed the Ejectment Petition. He next contended that on the face of the evidence produced by the respondent, the ejectment of the petitioner could not have been ordered. He submitted that the respondent No.1 had denied her signatures on the sale agreement dated 24-8-1996, Vakalatnama and the Rent Application when confronted in the cross-examination, therefore, the Rent Controller and the High Court should have dismissed the Ejectment Petition of the respondent. In support of his contentions, he has relied upon the case of Afzal Ahmad Qureshi v. Mursaleen (2001 SCMR 1434).

6. As against this, the learned Counsel for the respondent has contended that the respondent had rented out the premises in dispute to the petitioner in the year 1996 and has never executed any sale agreement in favour of the petitioner nor had received any sale consideration as alleged, and no proof of its execution was produced at trial nor the mode through which payment of such consideration was made has been proved.

7. The learned counsel for the respondent further contended that the petitioner has claimed that by virtue of sale agreement, he was put in possession of the premises in dispute which fact has not been borne out from the contents of the sale agreement nor the petitioner has pleaded the date and month on which he was put in possession of the property in dispute. He further submits that since the petitioner has also not pleaded the mode through which he made payment in pursuance of the sale agreement to the respondent, therefore, this fact clearly establishes that he was tenant of the respondent.

8. The learned counsel for the respondent has next contended that the signature on the Rent Application and the Vakalatnama are of no significance, as the respondent hails from a village and was not an educated lady.

9. We have heard the learned counsel for the parties and have perused the record. It is an admitted fact that the petitioner claims to have been put in possession by the respondent pursuant to sale agreement dated 24-8-1996, which fact is disputed by the respondent. The terms of the sale agreement, which was duly exhibited, do not mention that the petitioner was put in possession on payment of the sale consideration mentioned therein. The petitioner has not specifically pleaded in his written statement the date and time when he was put in possession in the premises in dispute nor he pleaded the mode through which he made payments towards, the sale consideration. The petitioner even has not filed a suit for specific performance of the sale agreement dated 24-8-1996 against the respondent to perfect his title. Instead it is claimed that on 17-1-2001, the petitioner has sold the property in dispute to one Javed Khan, who had filed a suit for specific performance against the petitioner in 2010. What is further surprising that the petitioner claims to have sold the premises in dispute but is still in possession of the same.

10. It appears that the respondent has filed Ejectment Petition on 29-7-2010 and thereafter Javed Khan filed a suit for specific performance against the petitioner for enforcement of the terms of sale agreement dated 17-1-2001. Even if we accept that there was a sale agreement between the petitioner and the respondent, then too the petitioner could not become owner of the premises in dispute by virtue of the sale agreement, as the sale agreement does not confer title on the petitioner. The petitioner has failed to establish that he was put in possession of the premises in dispute pursuant to the sale agreement dated 24-8-1996, as owner which fact is not even borne out the from contents of the sale agreement. In these circumstances, the learned High Court as well the Rent Controller after due appreciation of the evidence produced by the parties have rightly come to the conclusion that there existed relationship of landlord and tenant between the petitioner and the respondent on the ground that the petitioner had failed to prove the factum of possession as owner pursuant to the sale agreement dated 24-8-1996.

11. The case-law relied upon by the learned Counsel for the petitioner is distinguishable on the facts and has no application to the case in hand. Moreover, the premises in dispute are still in the name of the respondent in the record of Rawalpindi Cantonment Board. The Counsel for the petitioner has failed to offer any plausible explanation as to why the petitioner did not approach the Court of law to perfect his title once the premises in dispute has been purchased by him in 1996. On the contrary a suit for specific performance of contract has been filed by subsequent purchaser Javed Khan in 2010 against the petitioner on the ground that he has purchased the premises in dispute from the petitioner in 2001, which is admittedly in possession of the petitioner. Since the civil suit is pending adjudication before a civil Court, therefore, we refrain from commenting on such collateral proceedings.

12. In any event, this Court is not a Court of facts and in exercise of our jurisdiction under Article 185(3) of the Constitution, we are not inclined to grant leave in such like proceedings when the two Court below have recorded findings against the Petitioner on proper appreciation of material. The learned counsel for the petitioner has failed to point out any misreading and/or non-reading of evidence which could warrant interference. Resultantly, this Petition is dismissed and leave to appeal is refused. MWA/T-4/SC Petition dismissed.