' SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal has been filed by the Government of Sindh assailing the judgment of High Court of Sindh, Karachi, dated 20-1-2004 in High Court Appeal No,357 of 2000.
2. Brief facts of the case are that respondent which is a teaching institute registered under the Societies Act, 1930 let out some of its buildings to the Government of Sindh for housing/running educational institutions therein. Four educational institutions run by the petitioners namely (1)
Government Delhi Primary School, Karachi (Block-A), (2) Government Delhi Boys Secondary School, Karachi (Block-B), (3) Government Delhi Boys Secondary School, Karachi (Block-C) and (4)
Government Delhi College, Karachi (Block-D) are housed in the buildings/premises belonging-to the respondent. Four lease agreements were executed between the petitioners and the respondent in respect of the aforesaid demised premises as in pursuance of a declaratory order of this Court dated 25-1-1990 in C.P.L.A. No,18-K of 1989 declaring the respondent to be the owner of the aforesaid demised premises. On account of non-payment/default in regular payment of the demand of rent as well as calling upon them to vacate the demised premises but without any success. According to the respondent a sum of Rs,14,91,512 had become outstanding against the petitioners towards the rent of the aforesaid four premises till 30-4-2001. Respondents filed a suit for injunction, possession, compensation, recovery of arrears of rent, mesne profits on 1-3-1999 in the High Court of Sindh wherein vide order, dated 22-8-2000 the petitioners requested for extension of time for payment of arrears of rent in instalments as well as future monthly rent in the following terms:-- ' "In pursuance of the Court order, dated 16-8-2000, Mrs. Mujeeb-un-Nisa Essani, Director School Education (Primary Region Karachi), Karachi appeared and submitted a statement which is reproduced as under:--- ' "It is prayed that this honourable Court may be pleased to extend time for payments of arrears of rent amounting to Rs,5,98,068 in instalments. Further it is submitted that monthly rent will be paid regularly in accordance to the agreement ' Schedule or payment of arrears and rent w,e,f, 1-10-1993 to 30-6-2000 ' Total arrears of rent due Rs,5,98,068 will be paid in 4 (four) instalments from current financial years 2000-01 to 2003-04.
' Hence it is prayed accordingly."
' Mr. Salman Hamid opposed the above proposition and submits that in view of the above admissions made by the defendants made in plaint they are not entitled for any relief. He further submitted that no rent has been paid to the plaintiff from 1997 upto date. Mrs. Mujeeb-un-Nisa submitted that 2500 students are studying in the section which is covered by agreement, dated 6- 8-1997 executed between the plaintiff and the Government of Sindh in respect of Delhi Government Primary School. It is further being submitted by Mr. Salman Hamid that as per clause (iv) of the said agreement it was agreed that the rent will be enhanced every year @ of 10% per annum. Mrs. Mujeeb-un-Nisa submitted that they have never denied to pay the rent as agreed in the agreement to the plaintiff but scarcity of funds with Government the same could not be paid.
Looking into the situation of the case and without prejudice to the pleadings of the parties, it is tentatively ordered that the defendant No,4 will deposit in Court the current rent as agreed in clause (iv) of the agreement as well as a sum of Rs,60,000 on account of arrears on or before 30th September, 2000. About the rest of the arrears further order will be passed after the aforesaid amount is deposited. In case the defendant No,2 failed to deposit the aforesaid amount in the prescribed time their defence will stand struck off and the suit will stand decreed as prayed for.
' Rent of the defendants covered by agreement, dated 6-8-1997, executed between the plaintiff and Government of Sindh in respect of Delhi Government Girls School the agreement dated 6-8- 1997 between the plaintiff and Government of Sindh in respect of Delhi Boys School the agreement dated 6-3-1997 in respect of the Government Delhi Intermediate College, Karachi, are directed to deposit the current rent as agreed in clause (iv) of the agreement and arrears thereof on or before 30th September, 2000. In case they fail to deposit the aforesaid amount within prescribed period, their defence will stand struck off and the suit will stand decreed as prayed for."
3. Petitioners failed to abide by the aforesaid undertaking/ agreement and consequently vide order, dated 30-10-2000 the suit was decreed as prayed with no order as to costs. The judgment and decree, dated 30-10-2000 was assailed by way of High Court Appeal No,357 of 2000 which was dismissed upholding the judgment and decree, dated 30-10-2000 allowing 90 days' time to the petitioners in terms of section 82, C.P.C. For depositing the decretal amount as well as handing over vacant possession of the premises to the respondent.
4. The petitioners feeling aggrieved and dissatisfied with the impugned judgment assailed the same by way of this petition for leave to appeal.
5. We have heard the arguments of Ch. Muhammad Rafique Rajourvi, Additional Advocate- General, Sindh on behalf of the petitioners and Mr. Salman Hamid, Advocate Supreme Court on behalf of respondent and have perused the record.
6. Learned Additional Advocate-General assailed the impugned judgment on the grounds; firstly, that learned Single Judge as well as learned Division Bench failed to take into consideration provisions of clause (10) of the Lease Agreement, dated 8-10-1977 which categorically provided that a dispute arising between the parties touching any matter relating to the lease agreement would be referred to sole arbitration of retired Judge of a superior judiciary of Pakistan; and secondly, that relationship between the petitioners and the respondent being that of landlord and tenants, the matter would be governed by the rent laws and the respondents ought to have filed an ejectment application under the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance") instead of filing a suit for possession, recovery of arrears of rent, compensation and mesne profits.
7. Mr. Salman Hamid, Advocate Supreme Court appearing on behalf of the respondents vehemently refuted the contentions raised by learned Additional Advocate-General, Sindh and submitted that the petitioners did not question the legality of the suit on the ground that agreement of lease between the parties provided the dispute to be referred to the sale arbitration of a retired Judge of the superior judiciary as would be evident from various orders passed by learned Division Bench of Sindh High Court. He further submitted that the petitioners voluntarily and without any influence or pressure agreed and undertook to pay the arrears of rent as well as future monthly rent and further that in the written statement filed by petitioner No,3, which was adopted by the other petitioners, no objection relating to the maintainability of the suit on the ground that the dispute was required to be referred to the sole Arbitrator had been taken. His further submission was that no objection was also taken in the written statement regarding jurisdiction of the High Court to proceed with the suit on the ground that relationship of landlord and tenant existed between the parties and the respondents ought to have filed an ejectment case under the Ordinance before the forum provided thereunder.
8. After having taken into consideration the arguments advanced by learned counsel for the parties it is observed that the petitioners did not at the relevant stage and time raise any objection with regard to the maintainability of the suit filed by the respondent on the ground that agreement of lease entered into between the parties provided that any dispute arising between the parties touching any of the issues embodied in the lease agreement was to be referred to the sole arbitration of a retired Judge of the superior Courts. As a matter of fact the petitioners voluntarily and of their free will submitted themselves to the jurisdiction of the High Court when they admitted their liability towards the arrears of rent as well as future monthly rent and undertook to pay the same as per their statement filed in Court which was incorporated in order, dated 22-8-2000 reproduced hereinabove. In the circumstances this objection cannot be allowed to be raised at this stage and the same repelled.
9. With regard to the contention that the relationship between the parties was that of landlord and tenant and in case of failure of the petitioner to pay the monthly rent for the premises in question, the respondents ought to have resorted to the provisions of the Ordinance for ejectment of the petitioners, it is noted that according to Martial Law Regulation 118 privately owned premises in which Nationalized Educational Institutions are housed/functioning were exempted from application of the Ordinance. Though such exemption was subsequently withdrawn and no longer available in respect of such buildings yet in view of the stipulation contained in clause (6) of the agreement that the breach of any of the terms set out in sub-clauses (a) to (n) of clause (6) would be sufficient ground for the respondents to terminate this agreement as well as clause (8) of the lease agreement empowering the respondent to terminate the agreement on commission of breach of any of the terms of the agreement, the tenancy was liable to termination/ forfeiture in terms of section 111 of the Transfer of Property Act. Irrespective of the above circumstances, the fact remains that neither in the suit nor in the High Court Appeal this objection as ever taken or raised by the petitioners.
10. Lastly it was contended by learned Additional Advocate-General, Sindh that direction to hand over vacant possession of the premises to the respondent would result in great inconvenience and cause insurn-.3untable problems to the petitioners and students studying in the schools and colleges housed in the premises in question and their educational career would be jeopardized which would amount to perpetuating injustice, harassment and untold miseries to the students and their parents. In this context, it is suffice to state that the petitioners have disentitled themselves from raising this objection in view of their blatant failure refusal or inability to comply with the orders passed by learned Single Judge for depositing the arrears of rent and future monthly rents as per their own undertaking conditional order was passed directing the petitioners to deposit the arrears of rent as well as future monthly rents which they failed to comply and requested for extension of time which was granted but again they failed to comply with the order for depositing the arrears of rent and future monthly rent. Even otherwise injustice or hardship to a party would not deprive the aggrieved party to claim and assert his right available to him under the law.
11. For the foregoing facts, reasons and discussion this petition is found to be without any substance and is accordingly dismissed. Leave to appeal is refused. However, ninety (90) days' time is allowed to the petitioners to hand over vacant possession of the premises in question to the respondent subject to deposit of arrears of rent and future monthly rent as per orders/law.