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Civil Petition for Special Leave to Appeal No. K-187 of 1981, decided on

5th September, 1981.

(On appeal from the judgment and order of the High Court of Sind,

Karachi, dated the 31st May, 1981, in Civil Revision Appeal No. 135 of

1981).

S. 13-Eviction-Waiver-.Petitioners themselves consenting in High Court to vacate premises, such act, held, amounted to waiver of legal right to pursue claim and not open to them to urge on merits of case-Constitution of Pakistan (1973),

S. Shehnshah Hussain, Advocate Supreme Court instructed by A. Aziz Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing : 5th September, 1981.

.-The dispute in this petition relates to Room No. 9 of Kbambati Bohra Building. Soldier Bazar, Karachi. One Abdul Kadir Patel was a tenant of this building who died on 10-4-1966 leaving him surviving the petitioners and respondent No. 2 as his heirs. It so happened that respondent No. 1 changed the tenancy of the Room in favour of respondent No. 2, and thereafter sued for his ejectment and succeeded as the Rent Controller by his order dated 12th September, 1975, allowed his prayer. The appeal against this order failed as it was dis missed by the Additional District Judge, Karachi, on 5th July, 1976. The petitioners thereafter learnt about the order of ejectment having been passed against respondent No. 2 and also of the pending execution proceed ings. They filed an application under Order I, rule 10, C. P. C., before the Civil Judge and Rent Controller which was di3missed, and an appeal against this order also failed. They filed an application under Order XXI, rule 99, C. P. C., which was rejected. This was followed by a suit for declaration and injunction which was also dismissed on 18th December, 1973, as being not maintainable. Lastly they again repeated the application under Order XXI, rule 99, C. P. C., and also filed an application under Order XIV, rules 1 and 2, C. P. C., which were dismissed by a common order dated 8th March, 1979. An appeal was referred against this order which was dismissed with costs by the III Additional District Judge, Karachi. ,

This order was challenged in Civil Revision before the High Court and again the petitioners could not succeed. Having heard the counsel for the petitioners we are of the view that there is no merit in the contentions as the petitioners themselves consented in the High Court to vacate the premises which facts amounted to a waive of legal right to pursue the claim, It is not now open to them to urge on the merits of the case as they had already foreclosed their right to do so.

Accordingly the petition is dismissed. However, the petitioners are allowed two month's time to vacate the room subject to the payment of rent

Petition dismissed.

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