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Petitioner: SHAHID MEHBOOB VS Respondent: MUHAMMAD ISMAIL
Court Name: Sindh High Court Judge(s): Azizullah M. Memon Title: SHAHID MEHBOOB vs MUHAMMAD ISMAIL Case No.: F.R. A . NO,13 of 2006 Date of Judgment:2007-03-19 Reported As: 2008 CLC 87 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AZIZULLAH M. MEMON, J.--- Appellant Shahid Mehboob filed this rent appeal against the order of ejectment dated 5th July, 2006, passed against him by Additional Rent Controller, Cantonment Board Clifton Karachi in Rent Application NO,28 of 2004, which was filed by the respondents/landlord for his ejectment from the premises bearing Flat 11o.M-1-5, 1st Floor, Florida Homes 33rd Street, Phase-V, Defence Housing Authority, Karachi. ' Heard Mr. Abdul Muqtadir Khan, Advocate for the appellant and Mr. Shahid Iqbal Advocate for the respondent. ' Respondent/landlord Muhammad Ismail contended in the above stated Rent Case NO,28 of 2004 that the above detailed flat was let out by him to the appellant/tenant at the rat of Rs,6,500 as monthly rent, through tenancy agreement dated 6th July, 2001; but the landlord now requires the said premises in good faith for the use of his son namely Doctor Khalid as the landlord of his said son had served a notice dated 22-11-2003 calling upon him to vacate the same and his son therefore, intended to shift in the disputed flat/premises to reside therein with his family. It is further alleged that the tenant/appellant committed default in payment of the monthly rent with effect from February, 2004 and also failed to pay the utility bills/charges as well as monthly maintenance charges, and other taxes. ' In his written statement, the appellant denied the allegations; according to him the respondent maliciously concealed the fact that the disputed premises was agreed to be sold out by him to the appellant vide sale agreement dated 4th March, 2003 by receiving an amount of Rs,2,19,000 towards consideration out of Rs,9,50,000 and executed such a separate receipt that the possession of the premises is with him in his capacity of its purchaser. He further asserted that son of the
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respondent, namely Doctor Khalid Pervez does not come within the meaning of member of family of the respondent, who was living very comfortably in a rented house and that the ejectment application was filed with mala fide intention to usurp the part consideration amount received by the respondent for the said sale of the premises, and to avoid to execute the sale deed for the same in his favour. It is further asserted that the respondent further received amount of Rs,71,500 also towards the consideration amount, and that despite repeated approaches to him for the purpose of supplying the copies of all the relevant documents and to execute and get the sale deed registered. The respondent always went on avoiding the same; appellant has therefore, filed Suit bearing NO,791 of 2004 against the respondent in the Court of IXth Senior Civil Judge South Karachi for specific performance of the contract, declaration and injunction. ' Parties produced their respective evidence before the Additional Rent Controller Clifton Cantonment Karachi, whereafter the ejectment application was allowed with direction that the appellant/tenant be ejected from the disputed premises. ' The appellant has not denied that he was initially put into possession of the disputed premises by the respondent as a tenant therein. So also clause (3) of copy of the sale agreement, relied upon by the appellant and filed with the memo of this appeal, reads as under:-- "That the vendee is already in possession of the said property through a tenancy agreement dated 6th July, 2001 and is paying rent of the said premises @ Rs,6,500 per month and in the event of the sale deed is not executed within stipulated period i.e,4th May 2003 the Vendee/tenant will immediately vacate the premises and will hand over the possession to the Vendor. The Vendor shall refund the amount of advance payment after clearance of all dues payable by the tenant/Vendee on the said property." ' Learned counsel for the appellant argued that the respondent maliciously concealed the fact of having agreed to sell out the disputed premises in favour of the appellant in the ejectment application; further, the appellant repeatedly requested the respondent to supply him the copies of all the relevant documents of titled of the disputed premises and to execute the sale deed and to get it registered by receiving the balance consideration amount thereof, but he went on avoiding the same with sole intention not to execute the sale deed and has also never returned back the part consideration amount received by him from the respondent. Further the tenant/appellant filed an application before the Additional Rent Controller with a prayer to stay the proceedings of the ejectment case till decision of the said suit for specific performance of the contract but the same was not entertained properly by the Additional Controller of Rents. It is further argued that Doctor Khalid Pervez the son of the respondent has admitted that he is not dependent on his father viz. Respondent and has further admitted that he is earning of his own and thereby can not be said to be entitled to have the disputed plot for his residential purposes. Learned counsel further argued that the appellant had given amount to the respondent as security deposit at the time of commencement of the tenancy and that the same could be adjusted towards the rental amount for the disputed period (for which the respondent has alleged not having received the rental amount). He has cited 1984 CLC 71, 1988 CLC 402, 1980 CLC 1442, and PLD 1980 SC 298. ' Learned counsel cited 2000 YLR 2392, PLD 1969 Dhaka 214, 2001 CLC 1029, 2000 CLC 184, to argue that the appellant could be said to have a good case for decree in his suit for specific performance of the contract. ' In Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 Honourable Supreme Court recorded following observations at page 742:--- "Aggrieved by the aforenoted order passed by the Rent Controller and the Appellate Forum the petitioners-tenants filed a Constitutional petition in the High Court with the plea, on the basis of the aforementioned receipt that by virtue of section 53-A of the Transfer of Property Act, they were entitled to retain the possession notwithstanding the admitted fact that respondents have
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purchased the property through a registered deed regarding which they were served the notice. This plea was rejected by the High Court on the findings that the receipt in question "has been duly considered and discarded by the learned Rent Controller and the learned Additional District Judge. The reasons which prevailed with them in doing so are not perverse or violative of any principle of law". Accordingly, the Constitutional petition was dismissed. The petitioners have now sought special leave of this Court to appeal against the judgment of the High Court. ' 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 authorized by his wife to do so. And because the purchase by the respondents through registered deed was not denied therefore, the petitioner 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 for the petitioners requested for a clarification that the decision in the hierarchy of forums under the Rent Restriction Law shall not bar the adjudication of the Civil Suit already filed by the petitioners, In view of the fact that the genuineness of receipt, its validity and if these two aspects thereof are established affirmatively by the petitioner then its effect on the question of specific performance vis-a-vis the previous owner, has been left open by these forums. Therefore, these orders shall not bar the adjudication of the civil suit so far as the said aspects of the receipt are concerned. ' Learned counsel also sought time so 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 SCMR 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 Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC " 382 following observations were recorded:--- "The rights of the transferee under this section are protected, inter alia, on showing that the transferee has in part performance of the contract, taken possession of the property or any part thereof, or the transferee being already in possession, continues in possession in part performance of the contract. It is the latter clause which is attracted in the present case, namely that the respondent was already in possession as a tenant and he can succeed in his plea only if he satisfied the Court that his possession was continued in part performance of the contract.
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' This obviously means that his possession under the agreement must have reference to the contract to transfer immovable property which to my mind would be possession in the capacity of a purchaser. Possession is delivered in pursuance of a contract to transfer immovable property in view of the liability of the seller under section 55(t) of the Transfer of the Property Act. Possession given in any other capacity will have no nexus with the contract to transfer such immovable property. Therefore, possession in the capacity of the care-taker cannot be appropriated towards the contract to sell stricto senso, for obviously it implies that the care-taker holds the possession as an agent of the person entitled to possession. Therefore on any basis the respondent could not claim that he was holding possession in his own right under the terms of the agreement of sale. It is quite clear that clause 7 is a mere recital in the agreement, which indicates that vendor did not agree to divest himself of the possessory right as an owner, otherwise the agreement would not have used the words "on purely care-taker basis". To my mind there is nothing in the agreement which shows that the possession of the respondent as tenant was converted into possession as a vendee under the terms of the agreement. At any rate clause 7 of the agreement, on which reliance has been placed, is not couched in unequivocal language to reach such a conclusion. If a vendee is already in possession of immovable property, it would be necessary that the vendor by appropriate acts and declarations converts the permissive possession of such a vendee, whether as a tenant or otherwise, into possession as a vendee. In case of a sale of immovable property which is already leased out and is in occupation of a tenant, the vendor would be required to deliver symbolic possession to the buyer by asking the tenant to attorn to the latter. There is no such unequivocal act or declaration proved in the present case. In this connection reference may be made to a recent case of this Court reported as Shamim Akhtar v. Muhammad Rashid PLD 1989 SC 575, in which the plea of the tenant to resist ejectment on the doctrine of part performance was repelled and the following observation was made by the learned Chief Justice. "In this case there was no consideration of the question as to whether there was any stipulation in the agreement to show as to whether the continuance of possession was of a tenant or of a vendee and the High Court merely upon the premise that protection is afforded against dispossession under section 53-A of the Transfer of Property Act upon the execution of the agreement decided the issue. The High Court's reliance on this decision was not correct as it had failed to notice the important ingredients of section 53-A of the Transfer of Property Act". ' Learned counsel for the respondent has relied upon Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456 and Kalimuddin Ansar v. Director, Excise and Taxation PLD 1971 SC 114 which are both irrelevant to the present' controversy as the issues involved therein were totally different. He has also referred to Hassan Abbas v. Shahid Bashir and others 1980 CLC 1442 but that case has been overruled by this Court in the case of Shamim Akhtar already referred to. "For the foregoing reasons I am unable to subscribe to the conclusions arrived at by the learned Single Judge and hold that the respondent was not entitled to protect his possession and resist ejectment, under the provisions of section 53-A of the Transfer of Property Act and the relationship of landlord and tenant continued to exist between the parties even after the execution of the agreement of sale. As admittedly the respondent had failed to tender rent to the appellant the eviction order passed against him by the Rent Controller was fully justified. I would, therefore, allow this appeal, set aside the judgment of the learned Single Judge of the High Court and restore the order passed by the Rent Controller. There will be no order as to costs." ' In the case in hand, as quoted above, one of the terms and conditions of the disputed agreement of sale was that in the event the sale deed is not' executed within stipulated period i.e, 4th May, 2003 the vendee/tenant will immediately vacate the premises and will hand over the possession to the vendor.
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' In Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 following observations were recorded:- "Be that as it may, in some recent judgments this Court has taken the view that in case like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well known bar'of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time---even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate---though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17, Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1." ' In Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877 Honourable Supreme Court recorded following observations and page 882:--- "(8) Mr. Yahya Bakhtiar, the learned counsel for the appellants strenuously stressed that Bashir Ahmed has sold his share of the property to his tenant and had received the amount, the earnest money and the balance, but he had failed to fulfil his obligations by completing the sale, hence his clients have filed a suit against his L.Rs, for specific performance before the Civil Court and till decision of the suit the appellants cannot be ejected from the premises, at least from their share without partition of the premises. The learned counsel took us through the agreement deed and the copies of the statement of the accounts maintained by his clients. He tried to convince us that entire balance was paid. In presence of the suit pending between the parties before the Civil Judge it is really difficult for us to determine the genuineness or their effect on the stand taken by the parties. We are, therefore, inclined to leave it for the Trial Court to decide the same. However, the Judge in Chambers of the High Court has taken pain and elaborately discussed the issues and assessed the value of the agreement deed and other documents. He has referred to various authorities in that respect and has come to the conclusion that a tenant cannot be allowed to retain his possession on such agreement till decision of their title by a Civil Court of competent jurisdiction. We do not find any defect with his observations and conclusion. The factum of the default of the payment of the rent and the requirement of the landlord has been proved. We have neither been persuaded or satisfied that any defect lies with the judgment of the Judges in Chambers of the High Court which may call for interference of this Court in its appellate jurisdiction. The appeal fails which is dismissed accordingly with costs." ' In Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101 Honourable Supreme Court recorded following observations at page 1104:--- "(6) We have carefully perused entire record in the light of above submissions. It is an admitted feature of the case that petitioner was occupying the shop in dispute as tenant. This fact is also incorporated in the sale-agreement dated 20-1-1989. The question about genuineness or otherwise of said sale-agreement is obviously dependent upon final determination by Civil Court of competent jurisdiction. At this stage the validity of sale agreement relied upon by the petitioner/tenant is vigorously challenged by respondent/landlord. Therefore, till the time that
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petitioner is able to establish his claim for specific performance on the basis of alleged sale- agreement, respondent-landlord would continue to enjoy the status of being owner and landlord of the premises. Relationship between the parties till such time would be regulated by the terms of tenancy. This Court in similar circumstances while examining dispute between the landlord and tenant where the ejectment proceedings were contested on the ground of sale-agreement in case of Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382 has opined that ejectment proceedings could not be resisted by taking shelter under section 53-A of the Transfer of Property Act. Relevant observations read as under:--- "For the foregoing reasons I am unable to subscribe to the conclusions arrived at by the learned Single Judge and hold that the respondent was not entitled to protect his possession and resist ejectment, under the provisions of section 53-A of the Transfer of Property Act and the relationship of landlord and tenant continued to exist between the parties even after the execution of the agreement of sale. As admittedly the respondent had failed to tender rent to the appellant the eviction order passed against him by the Rent Controller was fully justified. I would, therefore, allow this appeal, set aside the judgment of the learned Single Judge of the High Court and restore the order passed by the Rent Controller. There will be no order as to costs." ' The above view has been reiterated in case Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242. Relevant observations read, thus:- "Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but one the well-known bar of estopple in this behalf he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time-even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate-though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17, Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1." ' Similarly following view has been taken in case Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877:--- "However, the judges in Chambers of the High Court has taken pain and elaborately discussed the issues and assessed the value of the agreement deed and other documents. He has referred to various authorities in that respect and has come to the conclusion that a tenant cannot be allowed to retain his possession on such agreement till decision of their title by a Civil Court of competent jurisdiction. We do no find any defect with his observations and conclusion. The factum of default of the payment of the rent and the requirement of the landlord has been proved. We have neither been persuaded nor satisfied that any defect lies with the judgment of the Judges in Chambers of the High Court which may call for interference of this Court in its appellate jurisdiction. The appeal fails which is dismissed accordingly with costs". (7) On the basis of dictum laid in aforequoted reports we unhesitatingly hold that petitioner cannot legitimately resist maintainability of ejectment proceedings pending against him on the ground of
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sale-agreement. Suffice it to observe that genuineness or otherwise of such agreement and its consequential effect will be independently determined by the Civil Court. However, in the instant case we are satisfied that issue regarding relationship of tenancy and personal bona fide requirement of respondent-landlord has been correctly decided by the Courts below. There does not appear any material defect or legal infirmity with regard to conclusions drawn in the impugned judgments. Accordingly the petition having no merit is dismissed and leave to appeal is refused." ' Thus, it is a settled principle of law that the tenant can not deny the title of ownership of the landlord who put him into possession of the demised premises as its tenants; and further that until and unless such a tenant gets a decree from the competent Civil Court. Finally determining him to be entitled to the decree of specific performance of the contract for the demised premises he can not deny the status of the respondent to be his…
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