1979 PLP 453 (SCMR)

NASIM HASAN SHAH, J.‑This petition for leave to appeal is directed against the judgment of the Peshawar High Court, dated 24‑3‑79 preferred by the petitioners. The facts briefly stated are that a suit for possession of the disputed premises was filed by the respondents against Ghulam Samdani, predecessor in interest of the present petitioners. The site 'belonged to the plaintiffs respondents herein, on which Ghulam Samdani had installed some machinery. During the pendency of the suit on 1‑4‑1975, the parties effected a compromise whereby it was agreed that Ghulain Samdani would continue to occupy the premises until the end of December, 1975 and that during this limited period, he would pay to the respondents Rs. 200 as rent per month It was also provided in the‑ compromise that the predecessor in interest of the petitioners would deliver vacant possession of the premises to tile respondents by removing his machinery on 1‑1‑

76. However, Ghulam Samdani did not band over the possession as agreed on the aforesaid date. Hence the respondents initiated execution proceedings to obtain the posses sion of the premises. An objection was taken by respondent Ghulam Samdani under sec tion 47/151, Civil Procedure Code read with section 13 of the West Pakistan Urban Rent Restriction Ordinance to the execution on the ground that he was not liable to be ejected except through due process of .law, i.e., in accordance with the procedure laid down in the West Pakistan Urban Rent Restriction Ordinance, 1959. The objection petition raising this objection was dismissed by the learned trial Judge on 7‑2‑

77. An appeal was then preferred by him in the Court of the District Judge, Peshawar. During the pendency ' of the appeal, Ghulam Samdani the predecessor‑in‑interest of the petitioners passed away whereupon the present petitioners were impleaded in place of the deceased as his legal representatives. The appeal was ultimately heard by the Additional District Judge, Peshawar, who dismissed the same vide his order dated 19‑2‑

79. Aggrieved by the above order, the petitioners filed a Civil Revision (No. 6S/1979) in the Peshawar High Court, Peshawar. The High Court too found no ground to disagree with the Courts below and dismissed the revision petition vide order dated 24‑3‑

79. Hence this petition for leave to appeal. Sardar Akhtar Ali, learned counsel for the petitioners, submitted before .us that the compromise effected between the parties on 1‑4‑75 amounted to a novation of the contract between them whereby the relationship of landlord and tenant was created between the parties and the predecessor‑in‑interest of the petitioners was accepted as tenant in the suit premises by the landlord (respondents herein) at Rs. 200‑per mensem, even though, for a short period. Consequently, the matter now fell to be governed by the provisions of the West Pakistan Urban Rent Restriction Ordinance, .1959 with the result that the predecessor in interest of the petitioners and. on his death the petitioners were to be deemed as holding over as tenants not liable to eviction otherwise than in accordance with the provisions of S. 13 of the said Ordinance. The learned Judge in the High Court as well as the Courts below, according to the learned counsel for the petitioners, ignored this important aspect, and, therefore their judgments are against the law. We do not find much force in this argument. As pointed out by the High Court, there was no agreement between the parties that the predecessor in‑interest of the petitioners was to be the tenant of the respondents. He' had been merely granted some time to vacate the suit property and it was agreed that for the period of use and occupation of the premises, he would pay Rs. 200 monthly to the respondents. The decree was passed in terms of the compromise and it had become final and only its execution was deferred until the end of December, 1975. Since the predecessor‑in‑interest of the petitioners did not comply with the terms of the decree, the respondents were obliged to resort to execution proceedings The argument that there was novation of the contract is also miscon ceived. According to the compromise deed dated 1‑4‑75, it was clearly laid down that if Ghulam Samdani the predecessor‑in‑interest of the petitioners did not vacate' the suit property by 1‑1‑76 and hand over the possession to the plaintiffs (respondents herein) they would be at liberty to secure possession of the property through the execution of the decree. Sardar Akhtar Ali also produced before us a copy of the compromise deed. Sub‑paragraphs (Alif) and (Bey) of para. 2 are relevant in this context. After perusing them, we are clearly of the view that there was no conscious agreement between' the parties for letting the premises on rent to Ghulam Samdani for any period f time. Hence, the plea that there was a novation of the contract and he had again become a tenant under the respondents though for a short time cannot hold. He had only been given some respite to enable him to vacate, the premises because as be bad installed some machinery on the site belonging to the plaintiffs some time was required to remove it and in the meantime by way of compensation he was to pay Rs. 200 to the plaintiffs (respondents herein). The result is that there .is no force in this petition which is hereby dismissed' Petition dismissed.