' This revision petition has been preferred against the judgment and decree dated 17.04.2012, passed by learned Additional District Judge-WI, Abbottabad whereby appeal of petitioner against the judgment and decree dated 12.10.2011, passed by learned trial Court was accepted and judgment and decree of learned trial Court was set aside.
2. A perusal of record reveals that plaintiffs/respondents filed a suit for declaration to the effect that they are lessee in possession of the property described as Raees Khana building Nathiagali, measuring 4.25 Kanals having a covered area of 7,999 sq.Fts. For a period of 30 years vide lease agreement deed dated 17.11.2002 executed between the plaintiffs and the defendants/Administration Department Peshawar and that notice dated 22.3.2007 was against law, against the terms and conditions of lease agreement deed, without lawful authority and based upon mala fide which is ineffective upon their rights. Perpetual injunction was also sought restraining the defendants from acting upon the impugned notice and their forcible eviction. The suit was contested by the Government/respondent by filing written statement and after pro and contra evidence adduced by the parties, the learned trial Court dismissed the suit of the plaintiff on 12.10.2011. The respondents/plaintiffs preferred an appeal before District Judge who vide judgment dated 17.4.2012 impugned herein observed the following: "For the reasons discussed above, I am of the view that though from the available evidence it is proved and established that lessees have persistently violated the terms and conditions of lease agreement by not adhering to it regarding payment of lease money on time and by raising new construction in the leased premises without prior approval of the lessor and impugned notice quite justified, however since lessor has been continuously receiving rent from lessees due since forfeiture, therefore the forfeiture stood waived and the impugned notice is no more legally effective against the rights of lessees/appellants."
3. The appeal was accepted only on the ground that lessor has accepted the rent from lessees due since forfeiture which shows that the lease still subsists between the parties and has to be restored.
The observations made by the learned appellate. Court are misplaced for the reasons that initially notice was issued on 22.3.2007 vide notice Ex.PW.1/2 wherein the plaintiffs were warned that the additional work of construction of two VIP rooms in place of existing Dining and Drawing rooms and construction of Dining and Drawing room including kitchen outside the existing building in Raees Khana Nathiagali without proper approval of the petitioners/lessors causing change in the main structure of the building, amounting to gross violation of the lease agreement. They were also warned that they failed to deposit the lease money in time by invoking provision of clause 10.3.2(B) , the plaintiffs were given three month time, soon after of completion of which the lease would be terminated without further notice and correspondence in this regard. Admittedly this notice has been received and is the bone of contention between the parties and categorically challenged in the instant suit. Though there was no need of subsequent notice however on 21.6.2007 when the period of three months was completed, the lease agreement was terminated vide termination Letter No, OP(177)LD/2006.6163 Ex.DW.1/7 with the direction to the ax-lessee to surrender the premises of Raees Khana to the lessor immediately failing which the Government has to take the possession without further correspondence in this behalf: The Court of appeal has not taken into account the termination letter and after the termination of the lease observation to the effect that leas subsists does not stand to reason, it is pertinent to mention that the plaintiffs waited till last day of completion of three months time given in terms of Clause 10.3.2.(8) of the agreement vide notice issued on 22.3.2007 and filed the suit on 20.6.2007 which shows the conduct of the plaintiffs that they were delaying the matter on one pretext or other to get the benefit of lease.
4. Both the Courts have concurrently observed that plaintiffs have raised illegal construction without prior approval of the Government. The scanning of evidence available on file would show that no approval is available on behalf of the Government. Similarly it is established from the record that the plaintiffs were defaulter in payment of the lease amount. The lessees/plaintiffs have never ever deposited the lease money in two equal installments on due dates in ,terms of Clause 3.* of the lease agreement Any amount deposited during the trial was not in proper manner and even prior to the litigation, the partial outstanding amount was not paid properly with a covering letter. The plaintiffs were repeatedly asked by the Government/petitioner even for petty amount of Rs, 28625/- alongwith warning letter to deposit the same as per terms and conditions of the agreement however the plaintiffs never bothered to reply any letter, notice, warning and correspondence issued by the Government/lessor, nor explained their position. No serious effort has been made by the plaintiffs to comply with the direction of the lessor regarding deposit of outstanding amount and kept on violating the terms and conditions of the agreement. They were also penalized for imposing such penalty in terms of Clause 10.3.2(B) of the lease agreement and a sum of Rs, 90,000/- was received by the X.E.N, PBMC from lessee as-penalties on account of violation of terms and conditions of the agreement. The evidence to this effect leads to the conclusion that the plaintiffs/lessees were not serious in compliance with the terms and conditions of the agreement and the learned appellate Court has rightly turned down the arguments advanced by counsel for the plaintiff as invalid. The plaintiffs were also warned as to why lease should not be terminated and strict action be taken against him in terms of agreement, even then they did not bother and then final impugned notice issued on 22.3.2007 and after completion of three months period the agreement was finally terminated on 21.6.2007. The plaintiffs have candidly admitted in the plaint as well as in the evidence that they have made construction without NOC of the Government. They stated that they have asked for the NOC but it was regretted and both these issues of illegal construction and non-payment of dues authorized the petitioners/defendants/lessor to serve the plaintiffs With notice and thereafter cancelled the same and to this effect the terms and conditions of agreement deed Ex.DW.1/14 are clear. Clause 3.1.1 speaks about the payment in two equal half yearly and each installment is to be deposited in advance by 10th of the respective month: failing which lessor will terminate the agreement after giving 30 days notice to the lessees. The default on the plaintiffs stands proved through documentary evidence available on file posted as Ex.DW.1/1 to Ex.DW.1/10. The plaintiff while appearing as PW.1 has admitted the terms and conditions of the agreement by raising illegal construction. He was handicapped to mention any p witness to the effect that a sum of Rs, 18,00,000/- was spent on the construction/ improvement. The plaintiff was unable to substantiate his stance to, the effect that notice was without lawful authority or that the defendants have travelled beyond their powers in issuance of the impugned notice and instead admitted the non- payment and illegal construction made in violation of terms and conditions of the agreement and thereafter on completion of three months, termination was made which was never challenged by the plaintiffs in the instant suit and as such termination has attained finality and there exists no question of subsistence of the agreement nor the Court can revive a terminated agreement between the parties especially in peculiar circumstances of the case.
5. The plaintiff has not produced evidence to the effect that waiver can be caused on acceptance of lease amount for the period prior to institution of suit. Admittedly the plaintiff was defaulter and if the amount was received by the defendant/Government was in respect of the period prior in time to institution of suit and not after termination of the agreement as evidence is deficient to this effect as such the principle of waiver of forfeiture is not attracted.
6. The point prevailed, with the learned Court of appeal was that of waiver of forfeiture which is not attracted to the peculiar circumstances of the instant case. The relevant provision of Section 111 clause-g has wrongly been interpreted as the same has no nexus to the peculiar circumstances of the case. The relevant provision is reproduced for convenience as under:-- "by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases, the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease"
7. A look of above provision reveals that not only the condition of breach which would determine the lease be in express form rather it must provide a breach thereof and the lessor has a right of re-entry. Admittedly there is an express condition in the lease deed to pay the lease amount however the provision regarding re-entry is not available. The forfeiture stands completed when lessor giving a notice to the lessee and thereafter terminated the lease on completion of the time prescribed in terms of agreement on the ground that there are beach of express condition of lease.
It is the lessor who could avail the option to waiver and allow the lease to subsist as the forfeiture makes lease voidable at the option of the lessor which is always unilateral for it depends upon material to show that he has exercised his option to forfeit the lease.
8. Learned counsel for respondents raised preliminary objection regarding maintainability of instant petition on the ground that private counsel has been engaged by the Government only to assist the Additional Advocate General and that too after the sanction was accorded and after filing of instant petition which is filed on 3.5.2012 whereas sanction has been granted on 12.6.2012, and also referred letter, dated 1.5.2012 in this regard. The letter referred though not happily worded however sanction was accorded by the Government to engage a private counsel.
9. The meeting of security committee as held on 1.6.2012 under the Chairmanship Secretary Law Department and it was observed that private counsel will assist the Additional Advocate General to conduct the case. The private counsel on authorization to act on behalf of Government becomes a recognized agent and can appear and conduct the case on behalf of Government. The Government can authorize a person to act for it in suits by or against it. Though Advocate General is authorized agent on behalf of Government however in peculiar circumstances if private counsel is engaged, may appear and conduct the cases on behalf of Government who is entitled to get the assistance of counsel of its choice unless disallowed by law. The Secretary Administration Government of KPK vide Letter No, EO(Admn)/53-M/RK 2012, dated May 1st, 2012 has informed Secretary Communication and Works Department of Government of KPK that Power of Attorney had already been signed by Director PBMC ..And handed over to the private counsel and requested necessary action for the sanction to engage private counsel for filing revision petition before this Court in the instant case which shows that the private counsel was engaged prior to institution of instant petition filed on 3.5.2012. The irregularity if any must be deemed to have cured by the subsequent sanction and the Government has fortified the act to engage a counsel would not render the instant petition incompetent. Order III Rule 4, CPC contains the word "document" which is of wide connotation including Wakalat Nama as well as memo of appearance filed by an advocate on behalf of Government.
10. Quite apart from this, it is the only satisfaction of the Revisional Court regarding proper exercise of jurisdiction or the exercise of jurisdiction illegally or with material irregularity by the subordinate Court wherein interference could be made. It is the matter between revisional Court and the subordinate Court and even if there is no petition on behalf of the party, suo moto interference could be made when subordinate Court has exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in it or acted in exercise of jurisdiction illegally or with material irregularity.The High Court exercises suo moto revisional jurisdiction despite the fact that the revision petition filed by the aggrieved party was likely to fail on any technical point as Section 115, CPC has two parts, firstly relating to the petition filed by an aggrieved party and secondly where High Court has been empowered to pass an appropriate order in cases where it thinks fit on calling of record that subordinate Court has exercised the jurisdiction not vested by law failed to exercise the jurisdiction so vested or for acting any exercise of its jurisdiction illegally. The High Court has supervisory powers to check the illegality and irregularity and to see as to whether the jurisdiction exercised properly or otherwise. The powers of High Court could not; be inhabited by technicalities of procedure or by the conduct of parties.
11. The observations made by the Court of appeal 'regarding waiver of forfeiture was not in line with law and has not decided the lis pending before it with conscious and application of independent mind to this extent however rightly determined that from the available evidence it is established that lessee has persistently violated the terms and conditions of lease agreement by not adhering to it regarding payment of lease money in time and by raising new construction in the lease premises without prior approval of the lessor and as such the impugned notice was justified.
' For the aforesaid reasons, I allow the instant petition and reverse the findings Of Court of appeal regarding point of waiver of forfeiture, resulting into dismissal of suit filed by the respondents/plaintiffs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.