1989 PLP 4740 (MLD)

AJMAL MIAN, C.J.--The petitioners by this petition have impugned the two orders dated 3-2-1977 and dated 17-7-1978 passed by respondents Nos.4 and 3 respectively. The brief facts leading to the filing of the above petition are that the petitioners who are sons and daughters of S.M. Saleem Qadir, the owner and landlord of a double storey bungalow bearing No.25/423 situated in Malir Township at Karachi, filed Rent Case No.255/1973 against respondent No.1, the husband of respondent No.2, inter alia, on the ground of default. The above rent case was resisted, but the learned Rent Controller by an order dated 11-12-1975 passed an ejectment order. Against the above ejectment order respondent No.1 filed Rent Appeal No.29/7976 which was dismissed on 8-4-1976. It appears that thereafter respondent No.2 filed Suit No.1390/76 in the same Court for declaration and permanent injunction restraining the petitioners from executing the ejectment order. The above suit was dismissed on 29-1-1977.

2. It also seems that respondent No.2 filed Suit No.456/1976 for specific performance in this Curt in respect of a sale-agreement dated 2-8-1975 entered into between the petitioners and respondent No.2 for sale in the sum of Rs.2,25,000 out of which Rs.60.000 were paid. The above suit is pending in this Court. The petitioners filed execution application namely Ex. Application No.7/1976 in which respondent No.2 filed an application under Order 21 Rule 99 C.P.C. opposing the execution application on the basis of the above sale agreement. Respondent No.2's above application was allowed by the impugned order dated 3-2-1977 by the learned Rent Controller/Vth Senior Civil Judge, Karachi against which the petitioners filed Rent Appeal No.99/1977 which was dismissed by the learned IVth Addl. District Judge by the impugned judgment dated 17-7-1978. The petitioners have, therefore, filed the present petition.

3. We have heard learned counsel tot the petitioners and the respondents.

4. It seems to be an admitted position that prior to the passing of the ejectment order, the sale-agreement dated 2-8-1975 was entered into between the petitioners and respondent No.2. It also seems to be an admitted position that in spite of the above sale-agreement, which was pointed out to the learned Rent Controller, the ejectment order was passed. Against the above ejectment order the aforesaid first rent appeal was filed in which also this sale-agreement was pleaded, but the appeal was dismissed. The suit filed by respondent No.2 in the Court of Vth Senior Civil Judge was also dismissed. The aforesaid Suit No.456/1976 for specific performance of the aforesaid sale-agreement filed by respondent No.2 is pending in this Court.

5. It has been contended by Mr. Hassan Jafar, learned counsel for the respondents that since respondent No. was not a party to the above ejectment application or the rent appeal, the ejectment order cannot be executed against her, she being the purchaser in possession of the property. However, he has not been able to point out any clause in the sale-agreement providing that after the execution of the above sale agreement, it would be deemed that she was in possession of the property as a purchaser. In the absence of any such clause, she cannot press into service section 5" of the Transfer of Property Act.

6. Since the ejectment order was passed by the Rent Controller after the execution of the above sale agreement, which was brought to his notice and which point was also agitated in the rent appeal, the learned Rent Controller could not have declined the execution on the ground of the above sale-agreement. It was open to respondent No.2 to have applied to the learned Civil Judge in the aforesaid suit for specific performance and injunction, if such an application was competent. But the Rent Controller had no jurisdiction to decline the execution application on ground which was available prior to the passing of the ejectment order. The impugned orders, therefore, seem to the contrary to law and-cannot be sustained. The petition is, therefore, allowed. The two orders are declared without lawful authority. It will be open to respondent No.2 to apply to the learned Single Judge in the aforesaid suit for specific performance or stay, if such an application is competent in law. H.B.T./S-495/K Petition allowed.