1993 PLP 141 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑Through the instant petition, Muhammad Younis petitioner calls in question the judgment of the Peshawar High Court, dated 26‑2‑1992, whereby his Revision Petition No.69 of 1992 against the order, dated 17‑7‑1990 passed by the learned Senior Civil Judge/executing Court, dismissed his objection petition and that of the District Judge/Appellate Court dated 1‑10‑1991 dismissing his appeal, was dismissed in limine. The facts of the case are that Mst. Allah Rakhi, predecessor‑in -interest of the respondents, filed an application before the Rent Controller for the eviction of the petitioner from the disputed property comprising a Serai and shops which was accepted vide order dated 29‑1‑1976 in Case No.1l/RC of 1975 and an eviction order passed against the petitioner. His appeals against the said order met with failure up to the Supreme Court, whereafter Mst. Allah Rakhi filed an execution application before the Rent Controller on 20‑12‑1982. She died during the pendency of the execution application and was survived by Mst. Muqadam Sultan, Mst. Ghulam Fatima, Mst. Fahmida Akhtar, Mst. Shakila Akhtar, respondents 1 to 4, and Mst. Rashida Akhtar and Mst. Hafiza Akhtar (not impleaded in the instant petition) her daughters and Alam Riaz her son. Necessary notices were issued to the petitioner which remained unserved till 14‑12‑1985 when Muhammad Younis petitioner filed an objection petition under sections 47/151 and Order 21, Rule 99, C.P.C. before the executing Court alleging that the aforementioned daughters of the decree- holder have entered into a compromise with him and have renewed the contractual relation qua the premises wherefrom his ejectment had been ordered. He asserted. payment of Rs.10,000 vide deed, dated 4‑8‑1985 and Rs.70,000 vide deed dated 22‑10‑1985 to them as advance payment of the rent which was to be fixed later on. He accordingly prayed that the eviction order having been superseded by the subsequent compromise cannot be legally executed. The respondents resisted the objection petition, evidence led pro and contra on the allegations levelled by the parties was recorded and the learned executing Court vide its order, dated 17‑7‑1990 rejected the objection petition and the appeal filed against it was also dismissed vide order, dated 1‑10‑1991 by the learned Additional District Judge‑II, Peshawar. Not content with the same, the petitioner preferred revision petition before the High Court which was dismissed in limine through the impugned order. Hence the instant petition for leave to appeal. We have heard Sh. Wazir Muhammad, Advocate for the petitioner and have perused the record of the case. The learned counsel for the petitioner placing reliance on the documents Exh.O.W.l/1, O.W.2/2 and the receipt Exh.O.W3/1, the statement of Tariq Usman O.W.1 son of respondent No.1, and Muhammad Ishaq O.W.3 vehemently argued that during the course of execution proceedings the parties entered into amicable settlement through which the respondents agreed to renew the contract of tenancy allowing the petitioner to continue the occupation of the suit premises on payment of enhanced rent, to be mutually determined later on. Tariq Usman O.W.1 admitted his signature as well as that of his mother Mst. Muqadam Sultan on the deed Exh.O.W.l/1 but in the cross‑examination positively stated that neither his mother nor his aunts were present at the time of the execution of the deed in the Mandi of the petitioner. He also conceded that the contents of the document were dictated to him by the petitioner. The respondents/decree‑holders being Pardahnashin ladies, all the three lower forums concurrently held that the burden of proof regarding the execution of the documents relied upon by the petitioner and the payment made by the petitioner mentioned therein, was heavily upon the petitioner who miserably failed to discharge the same. We have no reasons to differ with the conclusion arrived at by the three Courts below. If there had been a genuine compromise between the parties as claimed by the petitioner, it was incumbent upon him to produce the respondents before the executing Court for withdrawal of the execution application, stating the grounds for its withdrawal. There is no legal error in the judgments of the lower three forums impugned herein. Leave to appeal was accordingly refused on 31‑5‑1992 and the petition dismissed. At the time of the announcement of the order a notice was issued to the petitioner to show cause why compensatory and special costs amounting to Rs.5,00,000 be not imposed upon him for dragging the decree‑holders in unnecessary frivolous litigation and subjecting them to undue financial loss, mental torture and agony. The matter was adjourned to 2‑6‑1992 on which date after hearing the parties the judgment in the show‑cause notice was reserved. We have gone through the entire record of the case including execution file. The eviction order. was passed by the Rent Controller on 29‑1‑1976, first appeal dismissed on 19‑3‑1979 and second appeal by the High Court on 18‑3‑1980. The petitioner did not attend the executing Court in obedience to summons issued to him and ultimately on 14‑12‑1985 appeared before the Court informing him that the' daughters of the decree‑holder have patched up the matter with him and have renewed the tenancy, which contention has been turned down. In this way he deliberately prolonged the agony of the decree‑holders/respondents in defending objection petition and deferred his physical eviction uptill now, thereby depriving the decree‑holders from the use and enjoyment of the premises for at least 10 long years. Needless to emphasise that it is the legal and moral obligation of the judgment‑debtors to honour the decrees passed against them and surrender physical possession to the decree‑holder in case of ejectment order/decree, moreso when they, on their own showing, admit themselves to be tenant of the landlord and claiming no other interest in the disputed property. It is, therefore, high time that frivolous attempts to create hurdles in the execution of decrees by the judgment‑debtors are checked and to achieve this end we have initiated taxing the judgment‑debtors with reasonable compensatory costs to make up the losses suffered by the decree‑holders. As stated above, the decree‑holders were kept deprived of the use of property and the judgment‑debtor/petitioner enjoyed substantial earnings on account of its use for a long time to which he was not legally entitled. We, therefore, order the ‑petitioner to pay Rs.50,000 (rupees fifty thousand only) as compensatory/special costs to the heirs of Mst. Allah Rakhi decree‑holder including Mst. Muqadam Sultan, Mst. Ghulam Fatima, Mst. Fahmida Akhtar, Mst. Shakila Akhtar, Mst. Rashida Akhtar and Mst. Hafiza Akhtar daughters of Mst. Allah Rakhi. A.A./M‑1689/S Petition dismissed.