1989SCMR 416 (PLP)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the order of a learned Judge of Sind High Court dated 30‑3‑1988 dismissing an application filed by the petitioner under section 12(2) of the Code of Civil Procedure. The said application was filed with the following factual background: Alley Rasool, respondent herein, filed an application under section 14 of the Sind Rented Premises Ordinance, 1979 for petitioner's eviction on the ground that being a retired Government servant and the premises rented to respondent being required for his personal use, he served the requisite notice on respondent, but the respondent failed to deliver possession of the premises and the necessary direction for his dispossession may be issued against him. Learned Controller after recording evidence of the parties allowed the ejectment application by the order dated 18‑4‑1982. Petitioner challenged this order in appeal before the High Court which was decided by the order dated 9‑4‑1985 passed by consent of the parties in these words: "Mr. Abdul Latif Shakoor, Advocate Mr. Khalid Daudpota, Advocate. It has been argued by both the counsel that parties have compromised the above matter and appellants have agreed to hand over the vacant possession to the respondent within 9 months. Such application has been filed. The appeal is disposed of in terms of the application with no order as to costs. The rent amount if deposited by the appellant shall be paid to the respondent." The application mentioned in the aforesaid order was signed by counsel for both the parties and it reads as under:‑‑ It is submitted on behalf of the parties above‑named that they have compromised the above matter in terms whereof the appellants have agreed to vacate the premises in their occupation within 9 months i.e. on or before 31st December, 1985, subject to payment of agreed rent by the appellants upto the said period. The parties, therefore, pray to dismiss the appeal in terms of compromise." On 6‑8‑1986 petitioner however made an application under section 151,, C.P.C. which also may be reproduced hereunder. It read:‑‑ "For the reason disclosed in the accompanying affidavit it is prayed on behalf of the appellants above-named that this Honourable Court may be pleased to RECALL THE ORDER dated 9‑4‑1985, passed on the application under Order 23, Rule 3, C.P.C. which was moved by the learned counsel for the appellants for WITHDRAWAL of the above appeal on the ground of the compromise behind the back of the appellants and set aside the order which has been obtained through misrepresentation and without the knowledge and consent of the appellants. This application is made in the interest of justice." When this application came up for hearing in Court it was not pressed and the following order was passed:‑‑ "That this appellant shall vacate and hand over the vacant possession of the premises to the respondent by 31st December, 1987. In the meanwhile, they should continue to deposit the monthly rent as already ordered by the Rent Controller. It is open to the respondent to withdraw the rent. The application is duly signed by the appellants, their counsel and respondent, be kept on record." The petitioner also gave an undertaking in Court in writing in these words:‑‑ "The undersigned appellant undertake to vacate the premises in question i.e. OT‑3/129, Gao Gali, Mithadar, Karachi, by 31‑12‑1987, subject to deposit of the rent in Lower Court without any default. In case premises are not handed over, writ of possession be issued without any further notice." The petitioner however did not comply with the undertaking given in Court, and instead Filed an application on 28‑3‑1988 under section 12(2) read with section 151, C.P.C. requesting that the order dated 15‑3‑1987 be set aside. The application was rejected by the learned Judge in the High Court by the order which may also be reproduced hereunder. It reads:‑‑ "The First Rent appeal was decided by consent order on 9‑4‑1985, by which 9 months time was allowed to appellants. The statement was signed by both the Counsel. The appellants did not hand over the possession and after lapse of more than one year and four months, moved an application under section 151, C.P.C. The same was disposed of on 15‑3‑1987, and by consent again time was allowed. While disposing of this application, the written statement was filed duly signed. Before the Rent Controller, there was no issue of jurisdiction. Moreover, at the time of arguments, no such submission was made in this Court. In spite of consent orders dated 9‑4‑1985, and 15‑7‑1987, and having no stay, since then a case was under Section 14, the appellants are in possession of the premises since 1982. These applications are made just to avoid to hand over possession. The ejectment order has become final. The matter was taken to D.B. for review of the consent order but it was again referred to Single Judge. I do not find any merit in this application which is accordingly dismissed in limine." After having heard the learned counsel for the petitioner in the light of the record before us we cannot find any cogent justification for interference with the impugned order of the High Court either on merits of the case or in law, for, the orders dated 9‑4‑1985 and 15‑3‑1987 were passed by consent of the petitioner and there was no scope for grant of petitioner's application under section 12(2) read with 151, C.P.C. The petition therefore, has no merit and is dismissed. M.A.K./Z‑24/S Petition dismissed.