1999SCMR930 (PLP)

CH. MUHAMMAD ARIF, J.

Challenge in this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been made to judgment dated 7-11-1996 whereby petitioner Abdul Ghani's Civil Revision No. 1710 of 1996 was dismissed with the result that the rejection of his plaint vide judgment dated 15-5-1990 by the learned trial Court, which was upheld by the First Appellate Court vide its judgment dated 25-2-1996, was maintained.

2. It is not denied on behalf of the petitioner that he had, earlier, 'challenged his ejectment, at the instance of the respondents herein, through Constitution Petition bearing W.P. No.980 of 1989 which was disposed of by the High Court in terms of compromise between the parties entitling him/petitioner to receive a sum of Rs.5,000 from the other side, on 19-3-1989. The said amount was paid to the petitioner but, instead of. surrendering the possession of the disputed premises, he, during the pendency of the eviction petition, proceeded with filing of the present suit for permanent injunction. The learned Judge in Chambers of the Lahore High Court, Lahore passed the impugned judgment, as below: "...The two Courts have concurrently held that the suit land was subject-matter of compromise between the parties recorded in the writ petition. The same is fully supported by the record. The petitioner has failed to make out a case for interference in revisional jurisdiction. The anxiety only seems to be to prolong his possession and defeat the ejectment order, which was upheld up to the level of this Court. This cannot be continuanced."

3. We have heard the learned counsel for the parties and have also perused the available material, with their help. Mr. Noor Muhammad Sheikh, learned Advocate Supreme Court appearing in support of this petition, has tried to argue that the properties in dispute in Writ Petition No.980 of 1989 and Civil Revision No.1710 of 1996 were different and non-compliance of judgment dated 19-3-1989, passed in W.P. No.980 of 1989, cannot be considered as effective in favour of the respondents. The precise plea was that even if it were to be accepted that the property in dispute in both the Constitution Petition and Civil Revision was the same, the other side cannot be permitted to succeed against the petitioner without making the payment of the agreed amount of Rs.5,000 in terms of the compromise which was the basis for the judgment dated 19-3-1989, in W.P. No.980 of 1989. This assertion by and on behalf of the petitioner was controverted by Mr. Fazal Meran Chauhan, learned Advocate Supreme Court appearing on behalf of the respondents/caveators. He was of the view that the payment of Rs.5,000 to the petitioner by his clients was specifically noticed by the learned Judge in Chambers and for that reason alone the petitioner is not entitled to any indulgence by this Court in these proceedings.

4. We have considered the arguments addressed at the bar on behalf of the parties and find that the petitioner has no case to plead in support of his arguments. As already mentioned above, in the earlier round of litigation going up to the High Court the parties had arrived at the compromise whereunder the petitioner was paid a sum of Rs.5,000 by the respondents. The learned Judge in Chambers is quite right in observing that the petitioner was prolonging his possession over the disputed tenement with a view to defeating the ejectment orders against him. The concurrent findings of the Courts below that the subject-matter of the compromise leading to the disposal of petitioner's W.P. No.980 6f 1989 on 19-3-1989 and that his instant suit for permanent injunction, was the same, was not even so much as orally controverted by the learned counsel for the petitioner, muchless substantiated by reference to any part of the record of the case.

5. Resultantly, this petition fails and is hereby dismissed. Leave to appeal is refused. H. B. T./A-117/S Petition dismissed