P L D 1989 Supreme Court 346 (PLP)

K.A.Wahab, Advocate‑on‑Record for Petitioners. Nemo for Respondent. Date of hearing: 13th February, 1989. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought against an interim order passed by the High Court in a pending appeal regarding grant of stay of petitioners' ejectment on the condition of payment of arrears of rent. The impugned order reads as follows: "There is an ejectment order passed against the present appellant by the Rent Controller in 1972 which was upheld even at the stage of the Supreme Court.‑After having lost in the Supreme Court, a suit has been filed by the present appellant for declaration that the ejectment order was bad in law. In the above suit at the appellate stage plaint was rejected by the Appellate Court. Against the aforesaid order the present appeal has been filed. The appellant No.1 has also filed a suit for specific performance in this, Court on the basis of some alleged sale agreement. Since the appellants are seeking a stay order against the ejectment and as admittedly no rent has been paid since November, 1971, I would grant the stay subject to the condition that the appellant shall deposit the arrears of rent from November, 1971 at the rate of Rs. 600 per month with the Nazir of this Court within a period of three months. The appellant shall also deposit 'he current rent at the above rate. The rent for the month of August is to be deposited on or before 10th of September and thereafter on or before 10th of each month with the Nazir of this Court. The application stands disposed of in the above terms." Learned counsel while pressing this petition for leave to appeal has contended that the impugned order having been passed on 9‑8‑1987, the condition of payment of arrears of rent could be imposed only with regard to three years period prior thereto i.e. not beyond 9‑8‑1984, Therefore, the condition regarding payment of rent since November, 1971, was without jurisdiction. When questioned as to whether the petitioner denies liability regarding payment of rent since November, 1971. on facts or only on account of bar of limitation, the learned counsel stated that it was ,on account of bar of limitation only. It is not denied that even if an order is without jurisdiction it is not always necessary to grant leave to appeal. , This besides other considerations also depends upon the fitness of a case. There is an additional circumstance in this case. Admittedly the proceedings were started against the petitioner prior to 1971, therefore, the recovery of rent being objected to would be relatable to the period when the proceedings were pending before a legal forum and the petitioner was also seeking aid of law for adjudication of the dispute. In these circumstances we are of the view that the petitioners have not sought relief of grant of leave to appeal with clean hands. It is not a fit case for grant thereof. The same, therefore, is refused. M.B.A./H‑64/S Leave refused.