1982 PLP 1010 (SCMR)

M. BURHANUDDIN KHAN, J.‑Petitioners by this petition seek leave to appeal against the judgment and order dated 11‑1‑1982 of a learned Judge of the Peshawar High Court in S. A. O. No. 13 of 1979 whereby the judgment and decree dated 24‑1‑1979 of the District Judge, Mardan was set aside and order of the Rent Controller was restored and the petitioners‑tenants were directed to vacate the premises in dispute within a period of two months and the parties were left to bear their .own costs.

2. The facts given in the petition are that Muhammad Yaqoob Khan (since dead) through his attorney' Muhammad Hussain filed an application for ejectment against the petitioner on 25‑5‑1975 in the Court of Rent Con troller, Mardan from his house on the ground of wilful failure to pay the rent from 1‑7‑1974. The petitioner resisted the application. After recording the evidence the Rent Controller passed the order of ejectment on 5‑11‑1978. The petitioner then filed an appeal in the Court of District Judge, Mardan, who accepted the appeal and set aside the order of the Rent Controller. Aggrieved from this order the landlord filed an appeal in the Peshawar High Court which was accepted and order of the appellate Court was set aside.

3. The learned Judge of the Peshawar High Court while going through the evidence, held that the tenant‑petitioner was a wilful defaulter in the payment of rent for the period mentioned in the ejectment petition and that according to the case of the landlord the finding of the first appellate Court was based on document not proved and came to the conclusion that the appellate Court below was influenced by a deed dated 25‑2‑1977 purporting to be a compromise between Muhammad Hussain attorney of the landlord and Tajbar Shah the petitioner. The learned Judge held that this document purporting to be a compromise was placed on the file on 26‑7‑1977 and it is evident that this compromise was not given effect to nor any effort was made to incorporate the same in the order of the Court. Therefore the landlord raised an objection to the admissibility of the document which had not been proved and that it was imperative that this document, like other documents, should have been proved properly and in the absence of its proof it could not be referred to by the learned appellate Court below. It was observed by the High Court that the default had taken place' and as such the order of the Rent Controller was proper and legal.

4. We have considered the arguments of the learned counsel for the petitioner. His main contention is that the compromise 'deed executed between the parties was placed on the record and no further proof was required as the same had been admitted in evidence, but the perusal of the judgment would show that the compromise deed was placed on the file on 26‑7‑1977 and the order sheet of even date reads as follows: ‑ "Mr. Khurshid Ali, counsel for the respondent and Mr. Said Akbar Khan counsel for the petitioner present: The alleged compromise was produced by the respondent and his counsel. Mr. Said Akbar Khan seriously objected to the compromise. Therefore, the compromise cannot be given effect. The receipt for the payment is returned to the special attorney through the counsel and the file to come up on 5‑9‑1977 for further proceedings." We are of the view that the learned Judge has rightly upheld that this compromise deed was not accepted nor any effort was made to incorporate it in the order of the Court. Thus it cannot be relied by the learned first appellate Court.

5. As regards the default the learned High Court has also come to the finding that there was a default for the month of November, 1974 till the date of institution of the ejectment application and no valid ground has been shown for failure to pay the rent. We find no merit in this petition, which is accordingly, dismissed. Two months time to vacate the premises, on under taking by the learned counsel that it would be voluntary. Petition dismissed.