1989 PLP 106 (CLC)

(4) Whether the Opponent has converted the disputed premises from residential to commercial ? (5) Whether the applicant requires the premises for his bona fide personal use? In support of their respective contentions the respondent examined himself and one Mohammad Yousaf, while the Appellant examined himself. The learned Rent Controller after taking into consideration the evidence of the parties allowed the ejectment application on the ground of default only. The present appeal is directed against the said order. I have heard Mr. S. Azizul Hasan, learned counsel appearing for the Appellant, Mr. Qamar Mohammad Khan learned counsel appearing for the respondents and have gone through the R & P of the case. It has been .contended by Mr. S. Azizul Hasan, Advocate that in March 1981 one Mushtaque Ahmed had filed a Civil Suit being Suit No.765/1981 for declaration that he was owner of the premises in dispute in which even the Appellant was joined as Defendant No.4. That the Appellant moved an application on 8‑4‑1981 for deposit of rent in the suit but the learned Civil Judge was pleased to order that no such order can be passed by him as a Civil Court and that the parties to seek their remedy in proper Court. Thereafter the Appellant filed Misc. Rent Application before the Rent Controller being Misc. Rent Application No.2410/1981 in which he has been depositing rent regularly since 23rd May, 1981, and therefore the Appellant was not a defaulter. Mr. Qamar Mohammad Khan learned counsel appearing for the Respondent has contended that once there was an agreement of tenancy the Appellant was estopped from denying the right of the Respondent to recover the rent. He has further contended that the Respondent has filed a suit for Specific Performance of Contract against said Mushtaque Ahmed and his brother and the same has been decreed in 1985 against which the appeal is pending before this Court. However, he has not disputed the factual position as argued by Mr. S. Azizul Hasan, but has relied upon the definition of landlord as envisaged by clause 'f' of section 2 of Sind Rented Premises Ordinance, 1979. In support of his contention the learned counsel has relied upon P L D 1967 Pesh.

290. I have considered the contentions of the learned counsel. As far as relationship of landlord and tenant was concerned, it was not disputed except that the tenancy was oral. The rate of rent was not under dispute. It was the case of Mr. Qamar Mohammad Khan, Advocate that the Respondent had purchased the premises in dispute from Mushtaque Ahmed and his brother in 1961 by sale agreement but since the lease deed was not yet executed in their favour they could not execute sale‑deed in favour of the Respondent. That as soon as lease deed was executed in favour of Mushtaque Ahmed and his brother, the respondent filed suit for Specific Performance of Contract against, them as they had failed to execute sale‑deed in his favour. In order to appreciate the contentions of the learned counsel appearing for the parties it will be appropriate to refer to the definition of landlord as envisaged by section 2 clause 'f' which means the owners of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises. However, in the present case it is not disputed that the Respondent had based his title/right on agreement to sell and that the actual owner Mushtaque and his brother had filed a suit for declaration that they were owners of the property in which apart from the Respondent, the Appellant was also joined as Defendant No.4. As far as the agreement of sale was concerned, it did not create any right or title in favour of the Respondent unless sale‑deed was executed by the actual owners or suit for Specific Performance of Contract was filed by him and the same was decreed in his favour and therefore he could not claim himself to be owner of the premises. In this connection I am supported by a decision reported in the case of M. Ghulam Mohammad v. Custodian of Evacuee Property Lahore and others P L D 1966 (W.P.) Lah. 953; wherein it was observed by a Division Bench that:‑ "Petitioner claims relief on the basis of an Agreement to Sell, dated 19th May, 1945. An Agreement to Sell does not create any right, title or interest in immovable property. In the case of Risaldar Azimuddin v. Dilshad Khan P L D 1973 Kar. 284 it was observed by this Court. "While considering the effect of section 116 of the Evidence Act that 'ordinarily, by the reason of the rule laid down in section 116 of the Evidence Act a tenant cannot deny the title of his landlord but the legal position becomes very different when a third person who is the real owner intervenes, and, in that case the relationship of landlord and tenant comes to an end if the tenant is evicted by the real owner. The eviction need not be actual, but may be only symbolic. In other words if there is a notice to quit from the real owner to the tenant in occupation of the disputed property, or if there is threat of eviction from the real owner to such tenant, then it would be a case of symbolic eviction of the tenant by the real owner which would bring to an end the relationship of landlord and tenant which is protected by section 116 of Evidence Act." It was further observed that:‑ "Ordinarily, a tenant is not entitled to set up the title of a third person even though the title is that of the Government, yet he is entitled to plead that he was evicted by a true owner whether the true owner be the Government or a private person and that after such eviction he attorned to the true owner in which case the person, who inducted the tenant into possession of the disputed property cannot rely upon the rule of estoppel as contained in section 116 of Evidence Act." In the case of Abdul Sattar v. Mst. Nasima; 1982 C L C 1871 a request was made by the landlady that the appellant may be directed to deposit arrears of rent, the electricity charges and also future monthly rent, to which the appellant raised an objection that since dispute regarding the ownership was pending before the Government and status quo was maintained, in such a situation the tenant was entitled to dispute relationship and as such he could not be ordered to deposit rent. It was held by this Court that contentions of the parties, were arguable and can be properly decided at the time of regular hearing. However, in order to protect the interest of parties, the tenant was directed to furnish security instead of deposit of rent. Moreover, the tenancy was oral and, therefore, the appellant could pay rent within sixty days from the date the rent became due. It is the case of the respondent that the appellant was defaulter from March, 1981. The appellant has produced a certified copy of application moved by him on 8‑4‑1981 in Suit No.765/1981 requesting the Court that he may be allowed to deposit rent for the month of March, 1981 as there was a dispute regarding ownership of the property. This application was rejected by the learned Civil Judge on the ground that he had no jurisdiction to accept the rent, and the appellant could seek remedy before the proper Court. It was contended by Mr. S. Azizul Hasan that the appellant then filed a Misc. Rent Application No.2410 of 1981 before the Rent Controller and has been depositing rent regularly since 23rd May, 1981. This position was not controverted by Mr. Qamar Mohammad Khan. By virtue of section 15, subsection (2), clause (ii) of Sind Rented Premises Ordinance, the appellant could deposit rent for the month of March, C 1981 by first of June, 1981 and in view of the fact that he started depositing rent in Court from 23rd May, 1981, he could not be said to be a defaulter. I am view of the above discussion I am of the clear view that looking to the circumstances that the respondent was not the owner of the property in question, his right was disputed and a suit was filed b the actual owners, namely Mushtaque Ahmed and his brother, couple with the fact that the appellant had immediately moved the Civil Court for permission .to deposit the rent and had on rejection 11 of the said application, deposited the rent in Misc. Rent Case, the learned Controller committed error in holding that the appellant was a defaulter. The appeal is, therefore, allowed and the impugned order passed by the learned Rent Controller is hereby set aside, the ejectment application filed by the respondent is accordingly dismissed with no order as to costs. However, the respondent will be at liberty to seek remedy before the Rent Controller against the appellant if so advised, after his right of ownership is decided. A.A./W‑32/K Appeal allowed.