1. ABDUL HAFEEZ MEMON, J: --Petitioners seek leave to appeal against the judgment passed by the learned High Court on 6-8-1989 whereby it dismissed the revision application riled by the petitioner and maintained the order passed by the learned Senior Civil Judge, Karachi/South dated 19-3- 1989, dismissing the application under Order 7, rule 11, C.P.C. Filed by the petitioner for rejecting of the plaint in the suit filed by respondent for recovery of arrears of rent in respect of the premises rented out to the petitioner.
2. On 24-5-11984 respondent/landlady riled an application under the Cantonments Rent Restriction Act, 1963 for eviction of the petitioner from the premises on the; ground of default. Thereafter, on 27-11-1984, respondent moved an application before the learned Rent Controller for passing tentative order for rent which was fixed for orders on 16-3-1989. However, on this date the parties entered into a compromise by filing a joint application which was accepted by the learned Controller and the possession was handed over by the petitioner in pursuance thereof. The application and the order passed thereon is reproduced as under:-- "Application for compromise of case.
3. It is submitted on behalf of the parties hereto as follows:--
(1) That the opponent is agreeable to vacate the demised premises within one month from the date hereof in the same state as was received with all the fittings and fixture.
(2) That in the circumstances the applicant is willing to accept the premises within one month from the date hereof.
(3) That in case the opponent fails to vacate the premises within one month i.e. By end of April 1985 the applicant will be entitled to file Execution Application for eviction without notice to the opponent.
4. It is therefore, prayed that order may kindly be passed in terms of this application:'
5. "16-3-1985.
6. Case called up at 10-10 a.m. The opponent's counsel is present. None present on behalf of the applicant. Pended till 10-30 a. m.
7. (Sd.)
8. A.R.C.
9. Case re-called at 11-15 a.m. The counsel for the parties are present and have jointly filed an application/letter of compromise.
10. Accordingly the case stands disposed of in terms of the compromise. Announced in open Court.
11. (Sd.)
12. A.R.C."
13. After the aforesaid compromise the respondent/landlady filed a suit against the petitioner for recovery of arrears of rent in the sum of Rs.71,492. The petitioner thereupon filed an application under Order 7, rule 11, C.P.C. For rejection of the plaint in the suit alleging that the suit for recovery of rent was barred in view of Order 2, rule 2 and section 11 of the Civil Procedure Code. Learned Senior Civil Judge, however, dismissed the application on the ground that the said compromise did not show that the matter regarding the arrears of rent was settled between the parties and that it was `only in respect of handing over of the possession of the premises by the petitioner and therefore, the suit was not barred under Order 2, rule 2, C.P.C. And was also not hit by the doctrine of res judicata as the case was not previously adjudicated upon and there was no final order on the subject-matter i.e. Recovery of rent, although the previous case was between the same parties.
14. The petitioner challenged the order of the learned Rent Controller in revision before the High Court who dismissed it and maintained the order passed by the learned Senior Civil Judge. The learned High Court also held that the earlier case filed by the landlady was merely a case for ejectment and not a suit and secondly the issue of arrears of rent was not decided on merits in the said ejectment proceedings and was merely compromise on the terms stated above. The learned High Court further repelled the contention raised on behalf of the petitioner that the respondent had waived, relinquished and abandoned his right to recover the arrears of rent by virtue of compromising the matter. The learned Judge in this respect observed that the above submission of the learned counsel was not borne out by the compromise application and he could not read any part as to relinquishment, waiver or abandonment of the arrears of rent in the compromise application and the order passed thereon.
15. Mr. Gharib Nawaz Daccawala, learned counsel for the petitioner, repeated the contentions as were raised in the High Court in revision and submitted that the very fact that the petitioner gave up the possession of the premises showed that the respondent had given up her right to recover the arrears of rent outstanding against the petitioner and as such the suit is hit by the provisions of Order 11, Rule 2, C.P.C. As well as of section 11 of the C.P.C. The contention raised by the learned counsel is misconceived. As held by the learned High Court, neither the application for compromise nor the order passed thereon by the learned Senior Civil Judge showed that the respondent had given up her right to recover the arrears of rent. That being so, the suit filed by her for recovery of arrears of rent was indeed, maintainable and the learned High Court was justified in dismissing the Revision and no exception can be taken to the reasons assigned by the learned High Court.
16. Needless to say, the learned Judge in the High Court having already observed that the observations made by him in his order were tentative, the request of the learned counsel for giving further direction is not called for.
17. We, therefore, see no merit in this petition and dismiss it.