Shahzad Akbar Khan, J.--This Constitutional petition has been filed by Safdar Ali and two others assailing the correctness and legality of the order dated 15.3.2000 passed by the learned Rent Controller, Peshawar who ordered the ejectment of the petitioners from the suit property and the order dated 26.1.2001 passed by the learned Additional District Judge, Peshawar who dismissed the appeal of the petitioners.
2. A summary of short facts relevant for the disposal of this petition is that the land measuring three Jeribs belonging to respondent Habibullah situated in village Chughulpura Tehsil Peshawar was leased to the petitioners. It was agreed between the parties that the petitioner shall raise construction of shops etc. over the suit land from his owner pocket and shall pay Rs, 10,000/- per month as rent to the respondent. The agreement was executed between the parties on 10.12.1987.
On the ground of default in payment of rent, the respondent filed an application for eviction of the petitioners from the suit premises. The application was filed on 3.12.1990 and as per averments of the application for eviction the petitioners failed to make payment of the rent from 1.12.1987 till 30.11.1990 i,e, for a period of 36 months. The arrear of rent was calculated to the tune of Rs, 3,60,000/-. The petitioners resisted the eviction application by filing the written reply. The rival pleadings engendered seven issues on which the trial proceeded. As per record the case was fixed for 14.5.1991 when on the said date the petitioners failed to appear, therefore, the learned Rent Controller passed an order accepting the application of respondent. The petitioners filed application on 27.6.1991 for setting aside the order of 14.5.1991 being exparte. Such application of the petitioners was resisted by the respondent who submitted his reply. The application for setting aside the exparte order was pending determination when the petitioners again were found absent on 6.2.1996 and the learned Rent Controller, therefore, again passed the order of eviction.
Petitioners then still filed another application for setting aside the exparte decree on 22.5.1996 for setting aside the order dated 6.2.1996. Respondent also filed replication on 17.7.1996. The case was passing through the phase of recording pro and contra evidence on the application of the petitioners. Sadly, the petitioners were found absent on 19.5.1997. Keeping in view the antecedent of the case the learned Rent Controller was obliged to dismiss the application of the petitioners and applied Order 17 Rule 3 C.P.C.
3. The petitioners filed an appeal for setting aside the order dated 19.5.1997. It was accepted and the petitioners were allowed to produce their evidence before the learned Rent Controller vide his order dated 17.2.1999.
On receiving the file by the trial Court the case was fixed for evidence on 23.10.1999 and then for 0.1.2000. On such dates the petitioners could not produce their evidence and asked for adjournment. Adjournment was granted and the case was posted to 4.3.2000. On this day too, the petitioners requested for adjournment which was also allowed. A last chance was given to them for their evidence to be produced on 11.3.2000. On 11.3.2000 only petitioner appeared as his witness. The learned trial Court on the scrutiny of his testimony and taking into account all the ambient circumstances did not feel convince for accepting the contention of the petitioners qua the setting aside of the order of eviction. In the ultimate analysis their application was dismissed. The petitioner, being dissatisfied preferred an appeal which was heard and dismissed by the learned Additional District Judge-III, Peshawar on 26.1.2001.
4. Mr. Javed A. Khan the learned counsel for the petitioners has raised and argued the contention that the period of tenancy was fixed between the parties as 15 years, therefore, no application for the eviction could be filed before the expiration of 15 years. He termed the eviction application as pre-mature and was of the view that it was not maintainable. He urged that all the proceedings taken by the learned Rent Controller were wholly untenable having no legal basis. He contended that the respondent was bound to honour the conditions laid down in the agreement deed but the filing of application was in violation to the stipulated condition about the tenure of the lease. In order to give vigor to his contention- the learned counsel read out the contents of the agreement deed.
5. On the other hand, Mian Muhammad Younis Shah, learned counsel while hunting down the submissions of the learned counsel for the petitioners argued that as the petitioners had defaulted in making, payment of rent and have sheerly violated the terms of rent deed therefore, 'they rendered themselves liable for the eviction.
6. We have considered the rival contentions of the learned counsel for the parties and have gone through the record. The above short recital of the judicial proceedings before the Rent Controller clearly demonstrate the contumacious lapses on the part of the petitioners in carrying out orderly and unhindered proceedings of trial. The overall conduct of the petitioners raises the only irresistible inference that the petitioners employed delaying devices. The record indicates that petitioners failed to make out any case for the setting aside of the impugned orders notwithstanding that they were afforded ample opportunity to produce their evidence. Even today no substantial argument was raised to make out a case of sufficient cause for the absence of petitioners on more than one occasions. The argument of the learned counsel for the petitioners that keeping in view the stipulated period of 15 years of lease the respondent could not file eviction application against 'the petitioners is also forceless. A relief sought by then petitioners through this constitutional petition would be on equitable basis if the petitioners press for the observance of condition stipulated in the, agreement they were equally bound to discharge their own obligations of making payment of rent to the respondent. This legal obligation was cast upon the petitioners by the same agreement on the basis of which they have endeavoured to seek remedy. It is well known principle of equity that he who seeks equity must do equity. The uncontroverted position is that petitioners had not made any payment of rent from the very inception of the tenancy and huge amount of Rs, 3.60,000/- was claimingly outstanding against the petitioners. No argument could be advanced to justify the default in payment of rent. In absence of payment of rent it would be highly unfair to say that the landlord shall keep waiting for the long period of 15 years and will not bring any action against the delinquent tenant.
7. On the above statement of fact and law, we do not see any force in this writ petition, therefore, the same is hereby dismissed with no order as to costs.