1988 PLP 1453 (MLD)

Petitioner through this Constitutional petition seeks to call in question the judgment of the learned Additional District Judge, Faisalabad, dated 5‑3‑1987, whereby the appeal of the respondents was accepted, order of the Rent Controller dismissing the respondents' ejectment petition was set aside and the petitioner was directed to hand over the vacant possession of the property in dispute to the respondents.

2. Facts giving rise to this petition, briefly stated, are Ch. Muhammad Hassan and Ch. Muhammad Hussain, respondents Nos. 2 and 3 herein, purchased the house bearing No. 522 situate in Jinnah Colony, Faisalabad, from its previous owner Imam Din on 18‑5‑1983 and after serving notice under section 13‑A of the Urban Rent Restriction Ordinance on the petitioner, who was in possession thereof as a tenant under the previous owner, brought the ejectment petition against him on the grounds of default in the payment of rent and personal need of Muhammad Hussain, one of the purchasers of the house. Petitioner resisted the ejectment petition on the ground, inter alia, that the previous owner Imam Din had orally agreed to sell the property in dispute to him and, therefore, the subsequent sale made in favour of the respondents was of no legal consequence. Petitioner claimed that he was in possession of the property in dispute for last 30 years and had made substantial improvements thereon. He denied that the premises in dispute were bona fide required by Muhammad Hussain respondent for his personal use. Petitioner also controverted the allegation of default and submitted that he had been depositing the rent in Court. Pleadings of the parties gave rise to the following issues:‑‑ (1) Whether the petition is not maintainable in view of the preliminary objection No. 1? OPR. (2) Whether the construction is made by the respondent and whether he is not liable to be ejected ? OPR. (3) Whether the petition is not maintainable in view of preliminary Objections Nos. 3 to 7? OPR (4) Whether the respondent has defaulted in the payment of rent? OPA. (5) Whether the petitioner No. 2 requires the rented house for his personal use in good faith? OPA. (6) Relief.

3. Both the parties led evidence in support of their respective contentions. Petitioner led evidence to the effect that he was in possession of the house in dispute since 1955 and he had spent huge amount on its construction/improvements and installation of telephone, electricity, Sui‑gas and water connection. Imam Din, the previous owner of the house orally agreed to sell it to the petitioner for a consideration of Rs. 2,50,000 in March 1983 but subsequently he sold it to the respondents for Rs. 2,80,

000. It was stated by the petitioner that he had informed the respondents about the said agreement to sell an his favour and asked them not to purchase the house. in dispute.

4. Learned Rent Controller decided all the issues against the respondents. His finding on issue No. 1 was that the ejectment petition was not maintainable and was liable to be dismissed on the short ground that it was not signed by Ch. Muhammad Hussain, one of the petitioners in the ejectment petition for whose benefit the premises in dispute were sought to be vacated. According to the Rent Controller, Ch. Muhammad Hussain had signed a blank page on 25‑8‑1983 and the ejectment petition was brought subsequently and instituted on 21‑9‑1983 when Ch. Muhammad Hussain was in jail. Issues Nos. 2 and 3 were taken up together and on consideration of the afore‑referred evidence led by the petitioner, the Rent Controller found that the agreement to sell in favour of the petitioner was established and half of the consideration also stood passed to Imam Din in the form of investment made by the petitioner in the house in dispute. It was observed by the Rent Controller that "in such circumstances, the second contract with the can neither supersede the previous one nor the same can be treated as operative," Learned Rent Controller, however, held that he being a Court of limited jurisdiction it was not appropriate for him either to observe that the sale‑deed in favour of the respondents was illegal and void or to declare the petitioner as owner of the house in dispute. Nevertheless, the view taken by the Rent Controller was that in the facts and circumstances of the case, relationship of landlord and tenant could not be said to have been created between the parties and, as such, the petitioner was not liable to be ejected from the premises in dispute. On issue No. 4, it was found by the Rent Controller that the service of notice under section 13‑A on the petitioner was not proved and, therefore, there was no question of any default committed by him. On the issue of personal need, the finding recorded by the Rent Controller was that the house in dispute was not required by the respondents in good faith for the personal use of Ch. Muhammad Hussain. Consequent upon these findings, learned Rent Controller dismissed the ejectment petition vide order dated 30‑10‑1986 with the observation "the respondent has made huge investment upon the disputed house which has to be adjusted against the sale price of the house. The respondent has entered into an agreement to sell with the original owner Imam Din. So, the relationship of landlord and tenant could not be created between the present parties, despite this fact that the petitioners have purchased the disputed house. subsequent to the agreement to sell referred to above. In such circumstances, the parties can resort 'o the remedy of the Civil Suit, if so advised".

5. Respondents preferred an appeal which, as stated above, was accepted by the learned Addl. District Judge vide his order dated 5‑3‑1987 impugned herein. Learned Addl. District Judge reversed the finding of the Rent Controller on issue No. 1 by holding that even if Ch. Muhammad Hussain, respondent No. 2 herein, had signed the blank paper, the defect was not fatal as he had appeared as a witness and had been prosecuting the ejectment petition as also the appeal. It was also pointed out by the larned Additional District Judge that since the property in dispute was purchased by both the respondents, even one of them could institute the ejectment petition. It was, therefore, held that the ejectment petition as filed was maintainable. As regards issues Nos. 2 and 3, learned Additional District Judge after examining the findings of the Rent Controller thereon observed that the agreement to sell relied upon by the petitioner was not reduced into writing and there was also no documentary proof available on the record regarding the part payment of the consideration by the petitioner. It was, therefore, held by the learned Additional District Judge that the doctrine of part performance envisaged under‑ section 53‑A of the Transfer of Property Act was not attracted to the instant case. It was further noted by the learned Additional District Judge that the petitioner was admittedly a tenant under the previous owner and the respondents having purchased the property to dispute, they became his landlords and that there being no contract to writing providing for the cessation of the relationship of landlord and tenant, protection against ejectment, in any case, was not available to the petitioner. Findings of the Rent Controller on the issues of default and personal need were also set aside by the learned Additional District Judge who held that notice under section 13‑A of the Rent Restriction Ordinance was duly served on the petitioner but he neither validly tendered nor paid the rent to the respondents and, therefore, he was a defaulter. IL was further held by the learned Additional District Judge that the respondents lead successfully proved the bona fide personal need for the house in dispute.

6. I have heard the learned counsel for the parties. Learned counsel for the petitioner quite frankly submitted that on the facts found and admitted, the petitioner was not questioning his liability to be ejected from the premises in dispute and, therefore, he was not assailing the impugned order directing his ejectment. Learned Counsel, however, argued that m view of the law laid down by the Supreme Court of Pakistan in the case of Rehmat Uilah v. Ali Muhammad 1983 SCMR 1064, learned Additional District Judge while ordering the petitioner's ejectment from the property in dispute should have left it open to him to agitate the question of his title in a civil suit and since that has not been done, this Court should make an observation/clarification to the effect that the petitioner is entitled to file a suit for specific' performance on the basis of the agreement to sell. I am afraid, no such observation is at, all called for. It may be noted that the petitioner's plea that the previous owner had agreed to sell the house in dispute to him was accepted by the Rent Controller and this finding has not been upset by the learned Additional District Judge. He only held that since the agreement to sell set up by the petitioner was oral, he was not entitled to any protection under section 53‑A of the Transfer of Property Act which, in terms applied to the written agreements and not the oral ones. Thus the finding of the Rent Controller on the question of relationship of landlord and tenant between the parties was reversed arid it was held that the petitioner continued to be tenant under the respondents as he was admittedly a tenant under the previous owner. Learned Additional District Judge has not recorded any adverse finding against the petitioner on the question of agreement to sell. That being so, there does not arise any question of the impugned judgment of the learned Additional District judge operating as res judicata in any future litigation. In the circumstances, the observation/clarification sought for by the petitioner is wholly unnecessary. ' In view of what has been said above, the impugned judgment of the learned Additional District Judge does not call for any interference. This writ petition thus fails and is dismissed but with no order as to costs. M.Y.H./S‑301/L Petition dismissed.