2012 PLP 108 (MLD)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

This constitutional petition is directed against the judgment dated 28-2-2011 passed by Raja Safdar Iqbal, learned Additional District Judge, Chiniot whereby he maintained an order of ejectment dated 27-11-2010 passed by Mr. Muhammad Arif Khan Niazi, learned Rent Controller, Chiniot.

2. Respondent No.3 Kashif Mughal filed an application under section 15 of the Punjab Rented Premises Act, 2009 for the ejectment of Haji Muhammad Saeed from the premises on the grounds that the latter defaulted in the payment of rent since July, 2009 and that the shop in dispute was required for his personal use and occupation. The tenant filed petition seeking leave to contest the ejectment petition stating that the rent deed was executed on 23-2-2007 between the parties but subsequently the father of the petitioner executed an agreement to sell on 12-8-2009 for the sale of the property in dispute after receiving the earnest money of Rs.50,00,

000. On the refusal of the father of the petitioner to execute sale-deed, a suit for specific performance was filed as such, he prayed for leave to contest the petition on the ground that the suit for specific performance is pending before the court of competent jurisdiction.

3. The learned Rent Controller after examining the contentions raised by the parties observed that the induction of the tenant in the property in dispute is under tenancy agreement as such mere institution of the suit for specific performance cannot come into the way of any ejectment. Consequently, the petition was allowed and the tenant was ordered to be ejected from the property in dispute. The order was maintained in appeal by the learned first appellate court vide order impugned in this petition.

4. Learned counsel for the petitioner while relying upon the various judgments of the apex Court submitted that till the decision of the suit for specific performance of an agreement to sell, the learned Rent Controller is bound to stay the proceedings in the ejectment petition. He has cited various judgments on the point.

5. On the other hand, learned counsel for respondent No.3 while relying upon the other judgments of the apex Court observed that mere agreement to sell does not create any right or title of the party and the mere institution of suit for specific performance is no bar for passing an ejectment order as landlord cannot be deprived of the fruit of his own property.

6. After hearing both the learned counsel for the parties and perusing the record this court is of the view that the agreement to sell allegedly executed between the parties has no bar and effect upon the tenancy agreement which the petitioner did not deny even during the course of arguments before this court. This question of precedence of agreement to sell over a tenancy agreement has been resolved by section 10 of the Punjab Rented Premises Act, 2009 which reads as under:-- "Section

10. Effect of other agreement.

An agreement to sell or any other agreement entered into between the landlord and the tenant, after the execution of a tenancy agreement, in respect of premises and for a matter other than a matter provided under the tenancy agreement, shall not affect the relationship of landlord and tenant unless the tenancy is revoked through a written agreement entered before the Rent Registrar in accordance with the provisions of section 5."

7. The bare perusal of this section shows that the agreement to sell executed by the parties after the execution of tenancy agreement shall have no effect on the later and it shall also not affect the relationship of landlord and tenant unless the tenancy is revoked in the manner provided under the Act. Admittedly, the petitioner did not move before the Rent Registrar for revocation of the tenancy in writing as such, he cannot take the benefit of agreement to sell which is yet to be proved in the proper proceedings before the court of competent jurisdiction. In view of this legal bar, the plea of the petitioner that the learned Rent Controller should stay the proceedings on the ejectment petition till the decision of the civil suit cannot be accepted. The petitioner has to surrender the possession to the respondent and in case he succeeded in obtaining the decree of possession through specific performance of an agreement to sell, he may pray for restoration of possession from the defendant of that case, until such time, the petitioner has to surrender the possession of the demised premises to the landlord. The courts below while passing the ejectment orders did not commit any jurisdictional error as such, the findings do not call for any interference by this court.

8. For the foregoing reasons, this petition having no merit is dismissed. S.A.K./M-314/L Petition dismissed.