AHMAD ALI, J.---Petitioner through the instant petition has called in question vires of the Judgment dated 22.07.2019 of the learned Addl. District Judge-XV Peshawar whereby, his Rent Appeal filed against judgment/order dated 29.11.2018, stood dismissed.
2. Brief and essential facts for the disposal of present constitutional petition are that the controversy between parties was started when the respondent No. 1, the landlady, filed a petition for ejectment of the petitioner, the tenant, under section 13(3) of the Urban Rent Restriction Ordinance, 1959. In the said petition, she contended the monthly rent of rented premises as Rs.3,75,000/- per month and that rent for the last six months is outstanding. She also mentioned in her petition the misuse of her demised premises that the same was delivered to petitioner/tenant for residential purpose but he has started there a business of guest house due to which PDA also issued notices and finally owing to the said misuse, the allotment of petitioner stood cancelled.
Petitioner/tenant appeared before the learned Rent Controller and filed written statement, and thereafter vide order dated 22.12.2017, the petitioner was directed to deposit Rs.31,25,000/- as tentative rent for the past 10 months within 20 days and future rent @ Rs.3,12,500/- was to be deposited before 15th day of each month. The petitioner filed a writ petition against the order of tentative rent which was dismissed on 05.03.2018. Notice for the pursuance of the petition was initially issued to his counsel and then to the petitioner which was personally served on him on 19.4.2018 but thereafter he failed to appear before the learned Rent Controller. Accordingly, ex-parte proceedings were initiated which culminated upon passing of ex-parte decree dated 12.05.2018. The respondent No.1/landlady then launched execution proceedings and on 22.09.2018 the petitioner was arrested and produced before the executing court and from this point a new episode was started by the petitioner by filing application under section 12(2), C.P.C. against ex-parte decree dated 12.05.2018 of the learned Rent Controller.
3. The petitioner in his application under section 12(2), C.P.C., filed on 08.12.2018 took the stance that during the pendency of eviction petition, parties had arrived at a private settlement vide compromise deed dated 08.03.2018. According to this compromise, petitioner paid an amount of Rs.750,000/- to the landlady (respondent No. 1) and the respondent No.2 was inserted in the demised premises as tenant vide rent deed dated 08.03.2018 against a monthly rent of Rs.300,000/-. Thereby the petitioner delivered the possession of demised premises to the new tenant (respondent No.2) per consent of the respondent No.2/landlady. After this private settlement between parties, the petitioner becomes satisfied that the respondent No. 1/landlady will take back her eviction petition but she did not and instead, in order to extort money and pressurize the petitioner, she proceeded ahead with the proceedings in eviction petition which culminated upon passing of ex-parte decree dated 12.05.2018 and then arrest of petitioner on 22.09.2018, which is the alleged to be the date of knowledge.
Thus, petitioner filed application under section 12(2), C.P.C. against the ex-parte decree dated 12.05.2018, which was hotly contested by the respondent No.1/ landlady as she denied any compromise. The application under section 12(2) was dismissed vide order dated 29.11.2018 by the learned Rent Controller-I Peshawar. The appeal of petitioner was also dismissed vide Judgment dated 22.07.2019, hence, the present constitutional petition by the petitioner.
4. I have given anxious consideration to the arguments advanced before me at the bar and have gone through the record.
5. Record transpires that the writ petition of petitioner against the tentative rent was dismissed 05.03.2018, whereas the compromise allegedly reached between parties on 08.03.2018 in lieu of Rs.750,000/-. The order for the deposit of tentative rent Rs.31,25,000/- for the past 10 months and Rs.3,12,500/- as tentative rent per month was passed on 22.12.2017 which amount on the date of dismissal of writ petition was to be enhanced to Rs.40,62,500/-. It does not appeal to mind that a party who has a solid claim from the recovery of Rs.4.62 million settles the matter on payment of Rs.0.75 million, particularly when the receiving party is at strong footings.
6. No doubt the petitioner was fully aware of the pendency of eviction petition and it was his bounden duty to appear before the learned Rent Controller after the dismissal of his writ petition filed against the order of tentative rent. Even a notice for the pursuance of case was personally served him on 19.04.2018 even then he did not appear before the learned rent controller on 20.04.2018 and till date the petitioner has not denied the receiving of said notice for the pursuance of rent matter. No explanation has been advanced to the effect as to why the petitioner did not bother to appear to pursue the case. It is unjust to give the petitioner a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver. Reliance is placed on 2018 CLC 947 (Islamabad) titled Park View Enclave (Pvt.) Ltd. Through Chief Financial Officer v. Capital Development Authority through Chairman and 2 others.
7. The alleged compromise deed dated 08.03.2018 is silent about the pendency of rent petition and also no settlement as to the fate of said pending case was made in the alleged deed. In-fact the petitioner, who was allegedly getting rescue by paying Rs.0.75 million against a claim of Rs.4.62 million, should have more vigilant to agitate the compromise by producing the said deed before the Rent Controller. Equity aids the vigilant and not those who sleep on their rights. It is well settled that Courts cannot come to the rescue of persons, who are not vigilant regarding their rights. Reliance is placed on the 2017 CLC Note 83 [Peshawar] titled Wazir and others v. Haji Dilbar and others.
8. No inability or other precarious circumstances have been alleged by the petitioner which may have prevented him to appear before the learned Rent Controller. I fully agree with the argument of the learned counsel for the petitioner that the cases are to be decided on merits and nobody is to be deprived of his invaluable right of hearing. However, it does not mean that a party should be allowed to protract the proceedings on various pretexts, which are lacking bona fide. In such circumstances, the overall conduct of a party is to be kept in view, and the time-tested principle that one who seeks equity, must do equity, is to be pressed into service, as the delay defeats the equity.
9. From the conduct of the petitioner as borne out from the record, it appears that he had been committing wilful neglect in pursuing his case. No sufficient cause, whatsoever, was shown for non-appearance before the learned Rent Controller despite the fact that petitioner himself received the notice of the pursuance of case after the alleged compromise. Why he did not contact the landlady to press upon her to withdraw her eviction petition on the basis of alleged compromise. The constitutional remedies being extraordinary, no one is entitled to claim as of right exercise of discretionary power. Guidance may be derived from Muhammad Hussain's Case 2010 SCMR 286.
10. The nutshell of the above is that the present writ petition lacks merit which is thus dismissed in limine. Cost shall follow the events.