1. ' SHOUKAT HUSSAIN ZUBEDI, J.---This application under section 151, C.P.C., is moved on behalf of the appellants who are seeking a sum of Rs,1,00,000 from the respondent No,1 as per the terms of joint compromise application on the basis of which the above appeal was disposed of by this Court vide order, dated 19-2-1991.
2. ' It has been contended by Mr. Munib Ahmud, learned counsel for the appellants that one of the terms in the said compromise application was to the effect, that the appellants shall hand over vacant peaceful possession of the demised premises to the respondent No,1 on or before 20-8- 1991, while the respondent No,1 in turn, was required to pay a sum of Rs,1,00,000 to the appellants, which has not been paid as yet, though the respondent No,1 has since taken over the possession of the said premises. The learned counsel has therefore prayed for issuance of necessary directions to the respondent No,1 to make good the said payment.
3. ' On the other hand Mr. Badrudduja Khan, learned counsel for the respondent No,1 while strongly opposing this application, has submitted that this case has a checkered history and it is the appellants who have violated the terms of the compromise application therefore they are not entitled for the said amount of Rs,1,00,000. The learned counsel has referred to the counter-affidavit filed by respondent No,1 in reply to the appellant's application under section 151, C.P.C. in order to show that the appellants did every thing in their power to retain the possession of the demised premises after 20-8-1991 resulting in wilful violation of the terms of the compromise application.
4. ' We have carefully considered the arguments of the learned counsel for the parties and we have also gone through the entire material available on record, and, for reasons which we shall presently discuss, it is our considered view that the appellants are not entitled for the said amount of Rs,1,00,000 as claimed by them in the present application.
5. ' For the proper appreciation of the relevant point involved in this matter, it is necessary to refer to the case history pertaining to the period prior to the filing of the compromise application and also thereafter.
6. ' The background of the case is that the respondent No,! Mst. Safia filed Rent Case No,1775 of 1985 under section 14 of the Sindh Rented Premises Ordinance, 1979, for the eviction of the appellants from premises No,64/1, Nishtar Road, Karachi on the ground that she was a widow and needed the premises for her own use. By an order, dated 21-4-1986 the learned Rent Controller No,11, Karachi South, decided the matter in favour of the respondent No,1 and ordered the eviction of the appellants from the demised premises.
7. ' The appellants preferred First Rent Appeal No,308/86 against the said order of Rent Controller which came up for hearing before a learned Single Judge of this Court, who by his judgment dated 9-7-1987, while maintaining the order of the learned Rent Controller dismissed the said appeal of the appellants.
8. ' The appellants then filed Civil Appeal No,106-K of 1987 before the honourable Supreme Court of Pakistan, the same was also dismissed vide udgment dated 22-11-1990.
9. ' The appellants then filed Civil Review Petition No,36-K of 1990 before the Honourable Supreme Court, the same was also dismissed vide order, dated t7-12-1990.
10. ' It may be noted that during the pendency of F.RA. No,308 of 1986 in this Court, the respondent No,1 had filed Execution Application No,22 of 1986 before the Rent Controller No,II, South, Karachi but an undertaking was given by the learned counsel for respondent No,1 that he will not execute the order passed by the Rent Controller till the disposal of the appeal. As such the said Execution Application was kept pending but in the meanwhile as the appellants had exhausted all their remedies right up to the level of the Honourable Supreme Court, therefore, the stage was set for the respondent No,1 to press the said execution application.
11. ' It seems that as the stage for issuance of writ of possession in the execution proceedings drew near, the appellants started a second round of litigation by filing a suit for declaration and injunction in this Court being Suit No,48 of 1991 against the respondent No,1 seeking declaration that the respondent No,1 is not the co-owner of the demised premises, she did not acquire any ownership right by inheritance and to restrain her from evicting the appellants from the said property in execution of the order of the Rent Controller. Alongwith this suit the appellants also moved an application under Order 39, Rules 1 and 2, C.P.C. being C.MA. No,220 of 1991 for interim injunction to restrain the respondent No,1 from evicting the appellants from the rented premises in execution of the order of the Rent Controller. This application was dismissed by a learned Single Judge of this Court vide order, dated 11-2-1991. It is in these circumstances the appellants have preferred this High Court Appeal No,24 of 1991. It is during the pendency of this appeal that a joint compromise application under Order 23, Rule 3, C.P.C., was moved duly signed by the parties and their respective counsel. The said application was placed on record and by an order dated 19-2- 1991 the Appeal (H.CA. No,24 of 1991) was disposed of in terms of the said compromise application.
12. ' Para. 4 of the said compromise application is relevant for the decision of the application in hand and for the sake of convenience, the same is reproduced as under:-- "4. In the above undertaking it is agreed that the appellants shall vacate and hand over peaceful possession of the suit property to respondent No,1 on or before 20-8-1991. If he fails to comply this agreement and the order of this Honourable Court, they shall be prosecuted for contempt of Court and the writ of possession shall be issued in Execution No,22/1986 with police and with all powers .o the bailiff to eject the appellants and hand over the possession to the respondent No,1 or her agent and the appellant shall not be entitled for Rs,1,00,000 being gate charges as mentioned above."
13. ' As per the compromise application, the appellants had to vacate the premises on or before 20-8- 1991, while the respondent No,1 was required to pay Rs,1,00,000 to the appellants. It is quite apparent that the respondent No,1 who had been contesting for the possession of the demised premises since 1985, was obviously anxious to comply with the terms of the compromise. Therefore, by a letter dated 13-8-1991, the counsel for the respondent No,1 sought instructions from the counsel for the appellants whether the said amount is to be paid in cash or. through pay order, and if it is to be paid by a pay order, then in whose name was it to be issued. It appears that the counsel for the appellants verbally asked for cash payment to be deposited with him.
14. ' On 18-8-1991 the appellants sent a telegram to the respondent No,1 confirming that they shall vacate the premises on 20-8-1991 between 6 and 7 p.m. and the respondent No,1 should arrange for the payment of Rs,1,00,000. Again on behalf of the respondent No,1 another letter dated 19-8- 1991 was written by her counsel to the counsel for the appellants in which it was mentioned that as per his oral instructions cash amount of Rs,1,00,000 is being sent and the counsel for the appellants should acknowledge the same. Reference was also made about the telegram of 18-8-1991 sent by the appellants. On the same day (19-8-1991) the learned counsel for the appellants wrote a letter to the counsel for respondent No,1 acknowledging the receipt of the letters dated 13-8-1991 and 19-8- 1991 and also admitted about the arrangement under which he was to receive the cash payment of Rs,1,00,000 but she expressed his inability to finalise the said arrangement and instead suggested the counsel for the respondent No,1 to take the payment directly to the appellants against delivery of possession. The respondent No,1 then got prepared a Bank Pay Order, dated 20- 8-1991 in the name of appellant No,1 and sent her son to take the possession of the demised premises, but the same was found locked and in this way the appellants did not hand over the possession of the said premises.
15. ' The respondent No,1 again sent a telegram intimating the appellants that they have not handed over the possession on 20-8-1991, therefore, the appellants were again called upon to vacate the said premises on 22-8-1991 otherwise action as per compromise application will be taken against them. But the appellant did not hand over the vacant possession of the said premises to the respondent No,1.
16. ' It is at this stage that, a close relative of the appellants namely Mian Fayaz Qadri suddenly came in the picture and in the disposed of High Court Appeal No,24 of 1991, on his behalf as intervenor, two applications, one under section 12(2), C.P.C. and the other under Order 41, Rule 5, C.P.C. (being C.MA. No,813/1991) and (C.MA. No,814/1991) were filed on 22-8-1991, the sole object of which was to get the compromise order, dated 19-2-1991 stayed.
17. ' This move on the part of Fayaz Qadri was certainly made to benefit the appellants, but a Division Bench of this Court vide order, dated 26-8-1991 dismissed both the said applications. It may also be noted that the said intervenor had also filed similar application under section 12(2), C.P.C. before the Executing Court but the same was also dismissed vide order, dated 1-9-1991.
18. ' The said Fayaz Qadri then filed F.RA. No,445 of 1991 before this Court but the same was dismissed as not pressed. Thereafter the said Fayaz Qadri filed a Suit No,39 of 1991 before the learned District Judge South, Karachi, but the same was returned back as the said Court had no institutional jurisdiction.
19. 'The said Fayyaz Qadri then filed a suit bearing No,1359 of 1991 before the VII Senior Civil Judge South, Karachi, but the plaint was rejected under Order 7, Rule 11, C.P.C.
20. ' In the above circumstances the learned counsel for respondent No,1 moved an application for contempt of Court against the appellants for violation of the said compromise application being C.MA. No,959 of 1991. During the hearing of this application it was observed in the Order dated 11-12- 1991 that the writ of possession was issued, but the local police was not cooperating as on several dates writ of possession was returned unexecuted. In these circumstances the assistance of the learned Advocate-General, Sindh was sought and only thereafter the order was executed, and, at last the respondent No,1 got the vacant possession of the demised premises through process of this Court.
21. ' The appellants were ejected from the premises on 24-12-1991 through police aid with the assistance of the Advocate-General Sindh. It is only after the respondent No,1 got the possession of the demised premises that the counsel for the appellants has moved the present application in order to get the amount of Rs,1,00,000 from the respondent No,1 as per the terms of the compromise application.
22. ' The facts and the circumstances of the case clearly indicates that the appellants after having exhausted all remedies right up to the Supreme Court level, only thereafter they have compromised with the respondent No,1 on certain terms and conditions. It was agreed between them, that the appellants will vacate the said premises on or before 20-8-1991. But the appellants did not vacate the said premises on or before 20-8-1991. It appears that the respondent No,1 made an honest effort to pay the amount of Rs,1,00,000 in advance to the counsel for the appellants, who had initially agreed to keep the cash payment in trust, but subsequently in his letter dated 19-8- 1991 he expressed his inability to continue with this matter any further. The respondent No,1 then got prepared a bank pay order for Rs,1,00,000 in favour of the appellant No,1 and sent her son on 20-8- 1991 for making the payment and obtaining the possession. But the premises were found locked with the result the respondent No,1 could not get the possession of the premises from the appellants. As such the appellants violated the terms of the compromise. It may be noted, that the said violation on the part of the appellants continued till the time when writ of possession was issued which was executed through police aid with the assistance of the Advocate-General, Sindh and that is how the appellants were got ejected from the demised premises on 24-12-1991. In these circumstances no other conclusion can be drawn except that the appellants did not comply with the terms of the compromise application. There is an express provision in para. 4 of the compromise application which provides if the appellants fail to comply with the terms of agreement, they shall be prosecuted for contempt of Court, the writ of possession shall be issued with police aid to eject the appellants and hand over the possession to the respondent No,1. In that case the appellants shall not be entitled for Rs,1,00,000.
23. ' There can be no denial of the fact that the appellants did not hand over the vacant possession of the demised premises to the respondent No,1 on or about 20-8-1991 or even thereafter. As already mentioned, the appellants were got ejected under the process of the Court on 24-12-1991. In such circumstances, the appellants are clearly disentitled from seeking the said amount of Rs,1,00,000 as provided by the very terms of the compromise application.
24. ' From our above discussion we are of the clear view that the appellants have violated the terms of the compromise application and therefore they are not entitled for the said amount of Rs,1,00,000 as provided by the compromise application itself.
25. ' Accordingly, we do not find any merits in this application and the same is hereby dismissed.