1990 PLP 2217 (MLD)

The plaintiff has filed applications under Order XXXIX Rules 1 and 2, C.P.C. praying that defendant No 2, may be restrained from dispossessing the plaintiff and his son from tenements Nos.9, 11 and 12 through execution application Nos.5 and 6 of 1989 pending in the Court of 8th Senior Civil Judge and Rent Controller, Karachi. By both these applications of the plaintiff seeks stay of the execution of the ejectment order passed by the Rent Controller. These applications arise from the following facts. The plaintiff has filed this suit for specific performance of the agreement of sale of land bearing Nos.9, 11 and 12 on plot No.1R‑8/38, Lotus Street, Karachi for a sale consideration of Rs.60,000 out of which a sum of Rs.43,900 was paid by the plaintiff to defendant No.1 who had executed an agreement and also issued a receipt acknowledging the said payment. Under the agreement balance of sale consideration was to be paid by the plaintiff to defendant No.1 at the time of registration of the sale‑deed. One of the conditions of the agreement was that from 1‑7‑1978 the plaintiff had ceased to be the tenant and would not be liable to pay rent in future. The plaintiff's grievance is that defendant No.1, did not execute the conveyance deed and collusively transferred the property by a registered sale deed to defendant No.2. Defendant No.1, filed written statement denying execution of the sale agreement: After some time he filed a second written statement in which he admitted the agreement and receipt of the part of the sale consideration. However, the Court did not permit him to substitute this written statement in place of earlier written statement. Defendant No.2 filed a case for ejectment against the plaintiff, and thereafter defendant No.1 filed a suit for cancellation of sale‑deed executed in favour of defendant No.2 which suit is still pending. In the case filed before the Controller in 1980 the defendant No.2, obtained ejectment order against the plaintiff and appeal filed before the High Court was dismissed. The petition for special leave to appeal filed before the Supreme Court was dismissed with the following observations:‑‑ "We have carefully considered the contentions of the learned counsel in the light of the order passed by the Rent Controller and the judgment of the High Court, and the evidence brought on record. We find that the most important witness in this case is the previous owner Budha son of Soomar. He has admitted his signature on the sale‑deed and the factum of sale made by him in favour of the respondent, but according to him he had intended to sell only five tenements out of 16 tenements standing on the land comprising the property commonly called Budha Soomar Compound. This witness has admitted that he had not obtained partition of the Property before the sale‑deed and has also admitted his signature on the letters of attornment addressed to his tenants for recognizing the respondent as their landlord. But his allegation is that his signature on these documents were obtained by fraud. We have perused the deed of conveyance executed in favour of respondent and registered on 11th August, 1979 which shows that the entire property comprising land admeasure 1213 sq.yd. bearing Survey No.38, L.R.8, Lawrence Quarters of the city of Karachi with old structure standing thereon, was the subject‑matter of the sale as fully described in the Schedule annexed to the sale‑deed. Therefore, the documents purports to transfer the entire right and interest of Budha in favour of the respondent and that is why he has filed a suit for cancellation of the instrument. His evidence further shows that he has stopped dealing with the property after the date of the sale although according to him he had entrusted the collection of rents from the tenants of the portion not covered by the sale‑deed to the respondent. All this evidence, prima facie, supports the plea of the respondent that he had acquired the right of the ownership in the property through sale‑deed. Until the sale‑decd is cancelled and is out of the field, the respondent can claim to have stepped into the shoes of the previous owner, entitled to recover rent from the tenants of the building which was the subject‑matter of the sale. There is another aspect of the case which cannot be ignored. Even if the agreement of sale was executed by the previous owner on a prior date before the registered sale‑deed, by virtue of section 50 the registered sale‑deed, nonetheless has precedence over the prior unregistered deed of agreement. This position would remain till such time the Civil Court passes a decree against the respondent in any of the suits pending in respect of the property. However, for the purpose of the Rent Controller, the position as it stands today was sufficient to satisfy the requirements of law that the respondent was landlord entitled to recover rent. In this view of the matter we find no reason to interfere with the decision of the High Court, which is in-exceptionable." Mr. Shaikh Abdul Aziz, learned counsel for the plaintiff has contended that as defendant No.1, had entered into agreement prior to the execution of the sale‑deed and in part performance thereof the plaintiff continued in possession of the disputed property as an owner, therefore, ejectment proceeding should be stayed till such time the title of the property is decided by the Civil Court. On the other hand Mr.A.R.Mir7a, learned counsel for the respondent has contended that the sale‑deed has been registered in favour of respondent No.2, and having prima facie title and ownership of the property he cannot be restrained from executing order of ejectment which has been passed by the Controller holding him to be landlord of the premises, which order has been confirmed by the Supreme Court. In this regard, learned counsel has referred to the following observation in Allah Yar and others v. Additional District Judge and others 1984 S C M R 741:‑ "It is true that neither the learned Rent Controller nor the learned Appellate Court finally decided the Question of genuineness or otherwise of the receipt produced from the petitioner‑side. The question of fact in this behalf is still open. They have, however, rendered concurrent findings that even if the husband of the previous owner/landlord executed the receipt in token of an agreement to sell the property, there was no proof of the fact that he was authorised by his wife to do so. And because the purchase by the respondents through registered deed was not denied, therefore, the petitioners were not entitled to retain the possession in any other capacity than as tenants of the respondents the purchase by whom through registered deed is not being disputed even now. Reliance of the learned counsel on section 53‑A of the Transfer of Property Act in the circumstances of this case is of no help to the petitioners. According to him they have filed a suit for specific performance so as to establish the genuineness, validity and effect of the so‑called receipt. Till they are able to obtain a decree from the Civil Court, they could not have lawfully denied the relationship of landlord and tenant. In this context their failure/refusal to pay the rent for a long period cannot be treated as bona fide. In this behalf, it may further be mentioned that according to the learned counsel the suit was filed on 28‑11‑1981, nearly a year after the petitioners had become aware of the sale through the registered deed in favour of the respondents. They have rightly been adjudged as tenants as also defaulters in payment of rent. `Learned counsel also sought time do as to make an application before the Rent Controller for obtaining interim relief for the protection of petitioner's possession. This prayer is against the rule laid down by this Court in the case of Rehmatullah v. Ali Muhammad and another 1983 S C M R 1064. The respondents have been adjudged in these proceedings as entitled to receive rent without any doubt. Regarding their right to do so the issue of relationship of landlord and tenant has rightly been decided against the petitioner. For the time being accordingly they have no right to retain the possession after the eviction orders have been passed in duly constituted proceedings under a special law. The stay of eviction by a Civil Court even as interim measure would obviously be in aid of injustice. The prayer made by the learned counsel in this behalf, therefore, is refused.' In this Judgment the principles laid' down in Rehmatullah v. Ali Muhammad 1983 S C M R 1064 were clarified and explained. In the referred case the tenant was claiming to have purchased the property through a receipt allegedly executed by the husband of the owner who was not authorised by the owner/wife to sell the property. The execution of registered sale‑deed was not denied. In my view on facts this case is distinguishable as here an agreement exists which though first denied by defendant No.1 has been admitted subsequently. He has filed suit for cancellation of the registered sale‑deed executed in favour of defendant No.2, and further that the relationship of landlord and tenant between plaintiff and defendant No.1 ceased on execution of agreement to sell. The learned counsel also referred to Mir Salah‑ud‑Din v. Qazi Zaheer‑ud‑Din P L D 1988 S C

221. Where the principles laid down in Rehmatullah case have further been explained as follows:‑ "In order to appreciate the argument of the learned counsel it is necessary to briefly re‑state the rule laid down in the case of Rehmatullah. It is that: A matter involving even a dispute of title‑‑having once obtained finality in the Rent Controller's forum (including the hierarchy of appeals and thus the appellate and superior Courts) cannot be re‑agitated in a suit before a Civil Court of general judicate, the provisions contained in Section 12(2), C.P.C. read with section 9, C.P.C. and, the provisions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance 1959 (as Amended). Some possible exceptions to this rule have also been spelled out in the same case of Rehmatullah. They are: that the finality attachable to the orders passed under the Rent Restriction Laws by different forums will be neutralised when the order itself say that it is not final regarding a particular issue and that the same could be re‑agitated in the Court of general jurisdiction, or, when otherwise the said order in itself conveys a clear undisputed intendment that it is not final and visualises a final determination by a Court of general jurisdiction as was in the case of Rehmatullah, or, when the relevant issue is determined on the basis of doubts, or, when the party concerned itself instead of getting the final determination in that hierarchy gives up the content therein with a positive statement in this behalf, so as to agitate the question before Court of general jurisdiction which course in some cases would, be at the risk of a temporary adverse conclusion and/or action against him." It is thus clear that where Controller passes an order deciding the relationship of landlord and tenant on basis of ownership which the hierarchy of Courts in appeal confirm but the question of title is kept open for determination by Civil Court of competent jurisdiction, such finding of the Controller though confirmed by the appellant Courts is not binding on the Civil Court. The main reason being that the superior Courts have left such determination to the Civil Court. Applying this principle I find that while dismissing the petition for leave to appeal the question of title of the plaintiff was kept upon as is obvious from the observation quoted above. This position would continue to remain till such time Civil Court, decrees the suit against defendant No.1. The plaintiff has thus succeeded in. making out a prima facie case. In case he is ejected irreparable injury will be caused to him and he will suffer irreparable loss. The principles for grant of stay of judicial proceedings are well‑settled: An order of injunction to stay proceeding of Court is issued sparingly and to prevent multiplicity of proceedings. In such cases the order of injunction is issued against a party and not the Court. Two suits viz one for specific performance of agreement and the other for cancellation of registered, sale‑deed in favour of defendant No.2, are pending. The decision in these suits will directly affect the l result of the execution application. If the plaintiff is ejected and thereafter succeeds in his suit he will have to institute proceedings for restoration of possession. I, therefore, restrain defendant No.2 from executing the ejectment order passed by the Controller in respect of tenants Nos.9, 11 and 12 on PLot No.L‑8/38, Lotus Street Karachi. A.A./K‑222/K Application accepted.