2002 PLP 3155 (YLR)

M. Rahim and Aziz‑ur‑Rehman for Appellant. Muhammad Yahya Khan for Respondent: The appellant has filed a suit for specific performance of contract with regard to House No.10‑A, Block‑W, situated in Model Town‑C, Bahawalpur alleging in the plaint that the defendant/respondent had made an agreement to sell of the house with him for a consideration, of Rs.43,00,000 and on 20‑11‑2000 the defendant has received Rs.2,00,000 out of the sale price. Alongwith the suit the plaintiff‑appellant filed an application for grant of temporary injunction under Order XXXIX, Rule, C.P.C. The trial Court after obtaining reply of the application and hearing the arguments of the learned counsel for the parties, observed that the plaintiff‑appellant is not entitled for grant of temporary injunction, vide his order dated 27‑9‑2001. This order has been impugned through the present appeal.

2. The learned counsel for the appellant have drawn the attention of this Court towards a receipt executed by the defendant/respondent dated 20‑11‑2000 showing receipt of Rs.2,50,000 the advance payment of the house.

3. At this preliminary stage, the learned counsel for the respondent appeared and stated that the plaintiff‑appellant is the tenant of respondent against whom the ejectment petition has been filed which has been accepted and. the Court has directed the appellant to vacate the premises and the matter is pending through a writ petition in this Court.

4. I have heard the arguments of the learned counsel for the parties and perused the record. There is no cavil with the fact that during the pendency of the ejectment the plaintiff has filed the suit on 8‑6‑2001 and, the tenant/appellant has sought stay ejectment proceedings till final decision of the suit for specific performance of contract filed by him. Since the proceedings are to be conducted by different forums, the ejectment proceedings are to be conducted by the Controller, whereas the suit for specific performance of contract is to be decided by the Civil Court. The appellant could maintainability of ejectment proceedings against him on the ground of alleged agreement sought to be specifically performed. The genuineness or otherwise of the oral agreement and its consequential effect would be independently determined by Civil Court. The appellant has approached this Court on the basis of an agreement which in not in existence and the authenticity which is yet to be decided by the Court. Reliance in this respect can be placed on the case of Muhammad Rafiq v. Rent Controller, Bahawalpur and another (2001 MLD 1855). The Honourable Supreme Court in case of Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242) has observed that ejectment application of the landlord could not be stayed on a plea that the tenant is in possession, holding agreement to sell in his favour and pendency of the suit for specific performance of agreement would also be no ground to avoid eviction of the tenant by the Rent Controller. The oral agreement to sell has been denied by the defendant/respondent and the Trial Court has declined the interim injunction on the ground of oral agreement to sell alleged by the appellant. In case of Manzoor Hussain v. Iftikhar Hussain (1999 CLC 2008), the Trial Court had refused the interim injunction to the plaintiff on the ground of non‑existence of prima facie case in favour of the plaintiff, despite the fact that a sum of Rs.17,50,000 was alleged to be received by the defendant as an earnest money out of Rs.18,00,000 being the total consideration.

5. Since no sale‑deed has been executed in favour of the appellant and prima facie case is not made out. The balance or convenience is also not in his favour. The Rent Controller has directed the appellant to vacate the premises, therefore, no irreparable loss is caused to the appellant, if injunction is not granted to him. The other aspect of the case is that the appellant has not issued notice to the respondent as required under the Order XLIII, rule 3, C.P.C. for filing appeal against the order. For the foregoing reasons, this appeal having no force is dismissed in limine. H.B.T./A‑559/L Appeal dismissed.