PLJ 2023 Lahore (Note) 50
Present: Abid Aziz Sheikh, J.
versus
CH. BASHIR AHMAD, etc.--Respondents
W.P. No. 213378 of 2018, heard on 22.9.2021.
Punjab Rented Premises Act, 2009 (VII of 2009)--
----Ss. 10 & 13--Ejectment petition--Allowed, Appeal--Dismissed--Rent agreement--Default in payment--Sale agreement--No revocation of tenancy--Challenge to--Merely on basis of agreement to sell, respondents cannot presume revocation of tenancy, when it is settled law that mere agreement to sell does not confer any title and only right available to parties is to file suit for specific performance--Respondent No. 1 was not in occupation of premises in pursuance to said agreement to sell but by virtue of rent deed. Respondent No. 1 or his legal heirs cannot take refuge behind agreement to sell and not only defaulted in payment of rent for last many years but also refuse to return premises denying relationship of landlord and tenant--Petitioner is still lawful owner of property but she is neither receiving any rent of said property nor its possession is being returned to her by tenant due to impugned judgment--Petition allowed. [Para 8, 9, 10 & 14] A, B, C, D & E
PLD 1986 Lahore 393, PLD 2016 Lahore 123, 2012 MLD 108,
2017 SCMR 330 and 2016 CLC 1832 ref.
Punjab Rented Premises Act, 2009 (VII of 2009)--
----S. 10--Relationship of landlord and tenant--Agreement to sell or any other agreement entered into between landlord and tenant after execution of a tenancy agreement in respect of premises shall not effect relationship of landlord and tenant unless tenancy is revoked through a written agreement. [Para 9] B
M/s. Jawad Jamil and Moeen Ahmad Siddiqui, Advocates for Petitioner.
Mr. Riaz Hussain Chaudhry, Advocate for Respondents.
Date of hearing: 22.9.2021.
Judgment
This constitutional petition is directed against the judgment and decree dated 23.12.2017 passed by the learned Appellate Court.
2. Relevant facts are that Respondent No. 1 leased out property measuring 10-Marla 25-square feet bearing House No. 44, Ali Block, Ittefaq Town, Multan Road, Lahore (property) from the petitioner through rent deed dated 28.12.2002 against monthly rent of Rs. 7,000/-for period of 03 years. After expiry of aforesaid period, fresh lease agreement dated 09.11.2005 was executed for period of 02 years @ Rs. 9500/- per month and Respondent No. 1 also paid Rs. 20,000/-as security. On default in payment of rent, the petitioner filed first ejectment petition on 16.02.2008, however, due to some technical error in the pleadings, the said ejectment petition was withdrawn on 10.04.2010 and second ejectment petition was filed on 04.05.2010. However, the said ejectment petition was again withdrawn on 02.03.2011 on the plea that petitioner has entered into agreement to sell with one Mian Muhammad Mudassar and Mian Muhammad Abbas. Finally the third ejectment petition was filed on 02.04.2013 on the ground that petitioner has defaulted in payment of rent since 2012. The Respondent No. 1 filed leave to contest application in which he pleaded that as house in question has already been sold through agreement to sell dated 07.06.2011 to one Muhammad Abbas Bashir, therefore, the tenancy is revoked and Respondent No. 1 is no more the tenant of the petitioner. During pendency of the ejectment petition, the said Muhammad Abbas Bashir also filed application under Order I, Rule 10, C.P.C. to be impleaded as party in the ejectment petition, however, said application was dismissed vide order dated 28.05.2016. Finally the ejectment petition filed by the petitioner was allowed by the learned Rent Controller on 26.05.2017. However, in appeal through impugned order dated 23.12.2017, the ejectment petition filed by the petitioner was dismissed and the ejectment order passed by the learned Rent Controller was set aside. The petitioner being aggrieved has filed this constitutional petition.
3. The learned counsel for the petitioner submits that admittedly Respondent No. 1 is tenant of the petitioner and mere agreement to sell with one Muhammad Abbas Bashir does not change the status of the Respondent No. 1 as that of a tenant. He further submits that the possession of the house in question was always remained with the tenant in pursuance to tenancy agreement and was never handed over to Muhammad Abbas or any third party in pursuance to agreement to sell. Submits that Muhammad Abbas Bashir did not make full payment in terms of agreement to sell and even otherwise agreement to sell has no bearing on tenancy under Section 10 of the Punjab Rented Premises Act, 2009 (Act).
4. The learned counsel for the respondents on the other hand submits that the house in question was sold by the petitioner through agreement to sell dated 07.06.2011 to Muhammad Abbas Bashir who is son of deceased Respondent No. 1. Submits that the possession of house was also given to said Muhammad Abbas Bashir, therefore, Respondent No. 1 who has since been passed away, is no more the tenant of the petitioner since 07.06.2011. Learned counsel has placed reliance on Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and another (2016 SCMR 2186) to argue that Section 10 of the Act is not applicable in present matter.
5. Arguments heard. There is no dispute that petitioner is still the owner of the house in the question and the same was handed over to Respondent No. 1 as a tenant in pursuance to written lease agreements dated 28.12.2002 and 09.11.2005. Mere fact that the agreement to sell dated 07.06.2011 was executed between petitioner and one Muhammad Abbas Bashir will not change the status of the petitioner as of a tenant especially when till date neither any suit on the basis of said agreement to sell has been decreed nor property in question has been transferred in the name of Muhammad Abbas Bashir.
6. It is not the case of the Respondent No. 1 that after 07.06.2011, he took over the possession from Muhammad Abbas Bashir or started paying rent to said Muhammad Abbas Bashir rather he has only denied his status as of a tenant on the basis of agreement to sell between petitioner and Muhammad Abbas Bashir. It is also not disputed that application filed by Muhammad Abbas Bashir under Order I, Rule 10, C.P.C. to be impleaded as party in the ejectment petition was dismissed on 28.05.2016, which order being not further challenged has already attained finality.
7. No doubt after the death of Respondent No. 1, Muhammad Abbas Bashir was also impleaded as respondent being one of the legal heirs of Respondent No. 1. However, in these proceedings his status will be merely of legal heir of the tenant and not as occupant of the property on the basis of agreement to sell dated 07.06.2011, especially once his own application under Order I, Rule 10, C.P.C. was already dismissed on 28.05.2016 and said order has also attained finality.
8. Though the learned counsel for the respondents vehemently argued that in pursuance to agreement to sell dated 07.06.2011, possession of the house was also handed over to Muhammad Abbas Bashir. However, no such document is available on record between the petitioner and Respondent No. 1, whereby tenant was directed either to handover possession of the house to Muhammad Abbas Bashir or he was informed that from 07.06.2011 the tenancy is revoked. Even otherwise, merely on the basis of agreement to sell, the respondents/tenants cannot presume revocation of tenancy, when it is settled law that mere agreement to sell does not confer any title and the only right available to the parties is to file suit for specific performance. In this regard, reliance is placed on Islamabad Chamber of Commerce and Industries, Islamabad (PLD 1986 Lahore 393) and Mst. Gulshan v. Ameer Ali and others (PLD 1997 Karachi 292).
9. The next legal question require determination is that whether Section 10 of the Act is applicable in the present case. For convenience Section 10 of the Act is reproduced hereunder:
“10. Effect of other agreement.--An agreement to sell or any other agreement entered into between the landlord and the tenant, after the execution of a tenancy agreement, in respect of premises and for a matter other than a matter provided under the tenancy agreement, shall not affect the relationship of landlord and tenant unless the tenancy is revoked through a written agreement entered before the Rent Registrar in accordance with the provisions of Section 5.”
There is no doubt that under Section 10 of the Act, the agreement to sell or any other agreement entered into between the landlord and the tenant after the execution of a tenancy agreement in respect of the premises shall not effect the relationship of landlord and tenant unless the tenancy is revoked through a written agreement entered before the Rent Register in accordance with the provision of Section 5 of the Act. However, in order to apply Section 10 of the Act, the agreement to sell must be between landlord and tenant and as per law settled by Hon’ble Supreme Court in Mian Umer Ikram-ul-Haq supra, if person is in occupation of the premises by virtue of agreement to sell and not because he was a tenant, this Section 10 of the Act will have no bearing on the matter.
10. In the present case indeed the agreement to sell dated 07.06.2011 is not between the landlord/petitioner and Respondent
No. 1/tenant. However, admittedly the Respondent No. 1 was not in occupation of the premises in pursuance to said agreement to sell but by virtue of rent deed dated 28.12.2002. In the application for leave to contest, it is neither the case of the Respondent No. 1 that possession was handed over to him by virtue of agreement to sell dated 07.06.2011, nor it was claimed by him that after agreement to sell, Muhammad Abbas Bashir handed over the possession to him as of a tenant or otherwise.
11. In application for leave to contest, the only claim of Respondent No. 1 is that as petitioner entered into agreement to sell with one Muhammad Abbas Bashir and handed over the possession to him in the said agreement, the tenancy has been revoked. I am afraid the above plea is misconceived. Once Respondent No. 1 entered into premises as a tenant of the petitioner, his status will remain as of a tenant unless the tenancy is revoked specifically between petitioner and the Respondent No. 1. The Respondent No. 1 cannot presume automatic revocation of tenancy just because petitioner entered into agreement to sell with one Muhammad Abbas Bashir.
12. Section 10 of the Act provides that the agreement to sell entered into between landlord and tenant after the execution of tenancy agreement shall not affect the relationship of landlord and tenant unless tenancy is revoked through a written agreement entered before the Rent Registrar in accordance with provision of Section 5 of the Act. No doubt in the present case, alleged agreement to sell dated 07.06.2011 is between petitioner and son of the Respondent No. 1 namely Muhammad Abbas. However, when it is settled law that agreement to sell does not confer any title, the tenancy will not revoke automatically unless in pursuance to said agreement to sell tenancy was specifically revoked.
13. Though agreement to sell does not confer any title, however if at all there was any claim available on the basis of agreement to sell dated 07.06.2011, it was to Muhammad Abbas Bashir. However admittedly not only his application to become party in the ejectment petition was dismissed on 28.05.2016, but till date neither his suit for specific performance has been decreed nor property has been transferred in his name through any registered document.
14. In nutshell the Respondent No. 1 or his legal heirs cannot take refuge behind agreement to sell dated 07.06.2011, (which has no nexus with the Respondent No. 1), and not only defaulted in payment of the rent for the last many years but also refuse to return the premises denying the relationship of landlord and tenant. This is a unique unfortunate situation where though petitioner is still lawful owner of the property but she is neither receiving any rent of said property nor its possession is being returned to her by tenant due to impugned judgment.
15. The case of Mian Umar Ikram-ul-Haq supra relied upon by the learned counsel for the respondents actually supports the case of the petitioner. In the said case, it is held that when the party is in occupation of the premises by virtue of agreement to sell entered between the parties and not because he was a tenant then the case is not covered under Section 10 of the Act. However, in the present case, the Respondent No. 1 admittedly entered into premises on the basis of tenancy agreements dated 28.12.2002 and 09.11.2005 and not on the basis of agreement to sell dated 07.06.2011 between petitioner and Muhammad Abbas Bashir, hence his tenancy is not protected by terms of agreement to sell. In this regard reliance is also placed on Dr. Shahida Hasnain v. Mian Umar Ikram-ul-Haq and another (PLD 2016 Lahore 123), Haji Muhammad Saeed v. Additional District Judge (2012 MLD 108), Mst. Zarina Khan v. Mst. Farzana Shoaib (2017 SCMR 330) and Ayesha Moeen v. Appellate Rent Tribunal/Additional District Judge, Lahore and 4 others (2016 CLC 1832).
16. It is also relevant to note that if at all the learned Appellate Court reached to the conclusion that on the basis of agreement to sell dated 07.06.2011, the Respondent No. 1, is no more the tenant of the petitioner, the learned Court was required to grant leave to contest to the Respondent No. 1, instead of dismissing the ejectment petition.
17. In view of above discussion, this petition is allowed. Accordingly the impugned judgment passed by learned Appellate Court dated 23.12.2017 is set aside and the eviction order passed by the learned Special Judge Rent dated 26.05.2017 is restored.
(Y.A.) Petition allowed
0 Comments