' This civil revision calls in question the order, dated 6-5-1982 of the learned Additional District Judge, Faisalabad, whereby he rejected the appeal of the petitioner (now deceased) against the order, dated 28-3-1982 of the learned Senior Civil Judge, Faisalabad, passed in execution proceedings in an ejectment matter.
' The facts relevant for the disposal of this revision petition, as per record, are that the respondent filed an ejectment application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) against Muhammad Ali deceased (now represented by his legal heirs), in respect of Shop No. P-221, Ward No. 6, Bhawana Bazar, Faisalabad. During the pendency of the ejectment proceedings the parties entered into a compromise. In consequence, the learned Rent Controller disposed of the ejectment application by the order, dated 10-5-1980 in terms of the compromise, as per statements made by the parties, which read thus :- {{URDU TEXT}}
3. The petitioner/respondent made an application on 19-11-1981 for execution of the decree on the ground that Muhammad Ali deceased failed to comply with the terms of the compromise, inasmuch as, rent for the period from September, 1981 to November, 1981 at the rate of Rs, 600 per month was neither paid nor tendered to him. Muhammad Ali deceased contested the application and took up the plea that in the month of September, 1981 a message was received on behalf of the decree-holder that he was going to some other city and would collect the rent on his return. It was also averred that even otherwise rent for the month of September was payable in October and in October the decree-holder is not a letter stating therein that he would collect the rent within a few days and that the judgment-debtor should not worry on that account. It was further stated that the judgment bettor kept on waiting for the decree-holder but he never came to collect the rent, whereupon the same was sent through money order, which he declined to receive. It was also pleaded that according to the regular practice, the decree-holder used to collect the rent from the petitioner through the messenger by sending receipts.
4. The learned Civil Judge framed the following issues arising out of the pleadings of the parties :-
(1) Whether the respondent could not pay the rent for September, October, November, 1981 due to the representations given out by the petitioner himself by sending a letter in this regard that he shall himself collect the rent, if so, its effect ? O. P. R.
(2) Whether the applicant has become entitled to execute the order of ejectment of the respondent before the expiry of the grace period provided in the said order ? O. P. A.
(3) Relief.
' In support of his contention Muhammad Ali deceased appeared as R. W. 1 and also produced Muhammad Saeed R. W. 2 and Muhammad Hussain R. W. 3 as his witnesses. In rebuttal the respondent/petitioner produced Muhammad Aslam A. W. 1, Manzoor Akhtar, Advocate, A. W. 2 and himself appeared as A. W. 3.
' The learned trial Court after appreciating the evidence on record by order, dated 28-3-1983 recorded a finding of fact that the petitioner made a default in the payment of rent for the months of September, October and November, 1981. On appeal, the learned Additional District Judge, by order, dated 6-5-1982, after carefully re-evaluating the evidence on record concurred with the findings of the trial Court and dismissed the appeal.
4. Before examining the merits of the case, I would like to dispose of the preliminary objection- raised by the learned counsel for the petitioner that the revision petition cannot be disposed of in the absence of one of the legal heirs of Muhammad Ali deceased, namely, Jawaid Iqbal. The contention is devoid of any force. By order, dated 11-4-1983, Khalid Mahmood one of the legal heirs and brother of Jawaid Iqbal accepted service on his own behalf, as well as, on behalf of the remaining heirs, his mother, brother and sisters. He however, sought time to obtain power of attorney from Jawaid Iqbal in his favour for the purpose of prosecuting this case as he was stated to be settled abroad. Mr. Sami Hayat also made a statement at the Bar under instructions from his client that there was a telephonic conversation between Khalid Mahmood and Jawaid Iqbal about the pendency of this ease and that the latter would send a formal power of attorney shortly. It is, therefore, apparent that Jawaid Iqbal had due knowledge of pendency of this case and if he failed to make arrangement for prosecuting the same, he alone is responsible for it. In any event, the case of Muhammad Ali deceased is effectively represented by all his legal heirs except Jawaid Iqbal and his mere absence would not result in any miscarriage of justice. The preliminary objection is, therefore, overruled and Jawaid Iqbal is proceeded against ex parte.
5. The learned counsel for the petitioners submits that the trial Court in para. 5 (iii) of his judgment recorded a finding of fact that it was the regular practice of the respondent landlord to collect rent from the petitioner (Muhammad Ali deceased) against valid receipts issued through messenger by signing the same and this having never been reversed by the learned Additional District Judge, no finding of default in the payment of rent could have been given against the petitioner, in that, the respondent had evolved a system to take upon himself the duty of collecting or causing to collect the rent. The submission is devoid of any force, in that, para. 5 (iii) of the judgment is to be read in its entirety and not by picking and choosing bits and pieces thereof. In the concluding portion of the said para. The learned lower Court remarked : "It is also established, that the respondent was also paying the rent to the petitioner at Toba Tek Singh". It is, therefore, difficult to sustain the plea of the learned counsel for the petitioner that according to the past practice the rent was collected by the respondent personally. When faced with this situation, learned counsel submitted that this observation is based on no evidence on record. I am afraid, the contention is factually incorrect. The aforesaid finding is fully substantiated not only by the statements of Muhammad Aslam A. W. I and Manzoor Akhtar, Advocate, A. W. 2 but also by the petitioners' own witnesses namely, Muhammad Ali R. W. 1 and Muhammad Saeed R. W. 2.
6. It is next contended that even if the rent was payable in advance, which fact is not admitted in the absence of any written tenancy agreement, the petitioner Muhammad Ali could pay the rent within sixty days of the period for which the rent became payable as envisaged by section 13 of the Ordinance. The contention is devoid of any force. B The compromise between the parties was in the nature of a contract and it as such has the binding effect upon the parties. In terms of the compromise, the rent was payable in advance w. e. f. 1st June, 1980. It is, I therefore, difficult to sustain the plea of the learned counsel for the petitioner that in the absence of any written tenancy agreement the petitioner could pay the rent within sixty days of the period for which the rent became payable. Even otherwise a concurrent finding of fact arrived at by the Courts below that the rent was payable in advance, cannot be interfered with in these proceedings.
7. In terms of section 115, Code of Civil Procedure, every irregularity or even illegality in the exercise of jurisdiction cannot be attached in revision unless the party seeking revision is able to show that there was a violation of some statutory provision or principle of natural justice as would render the proceedings coram non judice. Refer Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (I). In the instant case, the impugned orders are not open to attack on any of the three grounds mentioned in section 115, Code of Civil Procedure.
' In view of the above, the revision petition fails and is hereby dismissed with costs.
(I) PLD 1964 SC 97