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Civil Petition for Special Leave to Appeal No. 69 of 1973, decided on 29th March 1973.

(On appeal from the judgment of the Lahore High Court, dated 16‑2‑7 in S. A. O. No. 322 of 1969).

, Ss. 13 & 15‑Controller accepting application of landlord and directing tenant to hand over vacant possession‑Appeal against order of Controller‑Pending appeal compromise arrived at between parties whereby tenant allowed to continue in possession for period of three years from date of compromise on condition of payment of all arrears and regular payment of future monthly rent‑Tenant after expiry of three years failing to vacate premises‑Landlord moving application for execution of order of ejectment‑Tenant pleading that compromise in appeal had created fresh tenancy and therefore he could not be ejected save by afresh proceeding for ejectment if same maintainable under law‑Argument, held, without substance‑No fresh tenancy created by compromise which merely gave time to tenant to continue in possession for stipulated period.

Syed Sarwar Abbas v. Syed Muhammad Taqi Rizvi 1969 S C M R 589; Hyderabad Memon Anjuman v. Diwan Kewalram 1971 S C M R 82 and Sheikh Taj Ali v. Syed Abdul Haq Shah 1972 S C M R 228 rel.

Samiullah v. Muhammad Salim 1971 S C M R 725 distinguished.

Hassan Ahmad Khan Kanwar, Advocate instructed by Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 29th March 1973.

.‑This petition for special leave to appeal seeks to call in question an order made by a learned Single Judge of the Lahore High Court on 16‑2‑73, whereby a second appeal filed by the petitioner in the matter of his ejectment from property bearing No P/219 situate in Jhang Bazar Lyallpur, was rejected.

The relevant facts are that in proceedings brought against the petitioner by Abdul Rahim, the predecessor‑in‑interest of the respondents, the learned Rent Controller, Lyallpur, made an order on 12‑4‑66 directing the petitioner and his co‑tenant Mashooq Ali alias Maqsood Ali to hand over vacant possession of the premises to the landlord. During the pendency of their appeal in the Court of the District Judge, the parties arrived at a compromise, and the appeal was accordingly disposed of on 8‑6‑66 in terms of the compromise. Apart from certain stipula tions regarding payment of the arrears of rent and enhanced rent for the future, one of the terms of the compromise was that in case the deposit of rent was made on or before the agreed date the petitioner shall continue in possession of the disputed shop for a period of three years from the date of the compromise, although in case of default he would be liable to ejectment, presumably within the period of three years. The learned District Judge, while disposing of the appeal, concluded his order as under;---

"The appeal succeeds in part in the light of my foregoing observations."

As the petitioner did not vacate the premises on the expiry of the period of three years from 8‑6‑66, the successors of the deceased landlord Abdul Rahim moved the learned Rent Con troller for the petitioner's ejectment by way of execution of the order made in appeal by the learned District Judge on 8‑6‑66. This application was accepted by the Rent Controller by his order dated the 29th of July 1969. Aggrieved by this order, the petitioner went up in appeal, but the same was dismissed by the learned District Judge on 6‑11‑69. The petitioner's second appeal, as already stated, has also been dismissed by the High Court, holding that the compromise arrived at between the parties during the pendency of the earlier appeal in the Court of the learned District Judge did not create any fresh tenancy between the parties, and that the order of ejectment as made by the Rent Controller on 12‑4‑66, and modified in appeal by the District Judge on 8‑6‑66, was an executable order. In reaching this con clusion, the High Court placed reliance on the decisions of this Court reported as Syed Sarwar Abbas v. Syed Muhammad Taqi Rizvi (1969 S C M R 589), Hyderabad Memon Anjuman v. Diwan Kewalram (1971 S C M R 82) and Sheikh Taj Ali v. Syed Abdul Haq Shah (1972 S C M R 228). The learned Judge further observed that the facts of the case of Samiullah v. Muhammad Salim (1971 S C M R 725) were distinguishable from those of the instant case.

Special leave is sought on the ground that the High Court has erred in thinking that the compromise arrived at between the parties during the appeal proceedings in the District Court did not amount to the creation of a fresh tenancy, which would require fresh proceedings before the Rent Controller if ejectment was desired by the landlord. It is submitted that the three cases relied upon by the High Court were not applicable to the facts of this case, and that on the contrary the matter was covered by the dictum of this Court in Samiullah's case.

We see no substance in these submissions. The High Court has rightly observed that the facts in Samiullah's case were entirely different from those in the instant case. In that case, the landlord had already received all the rent due before he moved the ejectment application, whereas in the other three cases the facts were analogous to those now before us. It seems to us that as a result of the compromise arrived at between the parties during the pendency of the appeal in the District Court, the order of eject ment made by the Rent Controller against the petitioner on 12‑4‑66 was modified to the extent that the petitioner was to continue in possession for a period of three years from the date of the compromise provided he fulfilled certain conditions regard ing payment of the arrears of rent and of future rent. There was no question of the creation of a fresh tenancy between the parties, such as would require fresh ejectment proceedings on a new cause of action. In the three precedent cases, relied upon by the High Court, this Court had taken the view that the com promise merely gave time, to the petitioner to continue in possession for the stipulated period, subject to payment of rent and taxes, but did not create any relationship of landlord and tenant so as to call for fresh proceedings. Nothing has been said at the Bar to persuade us to depart from the view taken in these cases in analogous circumstances.

The petition, therefore, fails and is hereby dismissed.

Leave refused.

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