MUHAMMAD MUNIR KHAN, J.---This petition for leave to appeal directed against judgment dated 10-4-1995 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, arises from the facts that during the hearing of Writ Petition No.443 of 1990 filed by Muhammad Hanif and Abdul Khaliq respondents arising from application of Ch. Munawar Khan petitioner for their eviction from the disputed shop situate Talagang Road, Chakwal on the ground of reconstruction of the shop, the parties compromised in the terms of compromise deed mark 'A' which was filed in the High Court. So, the High Court while disposing of the writ petition in terms of compromise passed the following order on 21-10-1990:----- "In view of the compromise entered into by the parties and brought on record as mark 'A', the petitioner herein shall vacate the disputed shop and also remove its rubble (Malbah) within a period of five months, whereafter Ch. Munawar Khan respondent shall construct the shops within a period of one year and out of them rent out one shop to the petitioner at the market rates.
The impugned order is modified accordingly and other writ petition is disposed of."
Muhammad Hanif and Abdul Khaliq respondents herein vacated the shop and delivered its possession to Ch. Munawar Khan for reconstruction of the same in terms of compromise and the order of the High Court dated 21-10-1990. Ch. Munawar Khan reconstructed the shop. On 28-4-1992 Muhammad Hanif and Abdul Khaliq filed application under section 13(5-B) of the Rent Restriction Ordinance for the restoration of the possession of the shop, against Ch, Munawar Khan before the Rent Controller Chakwal. This application was amended on 19-6-1993 and Khawaja Khalid Mahmood who by that the had been put in possession as tenant by Ch. Munawar, was impleaded as respondent No.2 by order of the Court. The application was resisted. Issues were framed. Parties led evidence. The Rent Controller vide his order dated 24-1-1994 allowed the application directing the petitioners to restore the possession of the shop to Muhammad Hanif and Abdul Khaliq at the rent of Rs.800 per month. Ch. Munawar Khan and Khawaja Khalid Mahmood filed appeal against the order of Rent Controller dated 24-1-1994 before the District Judge, Chakwal which was entrusted to the Additional District Judge, Chakwal, who vide his order dated 3-7-1994, while maintaining the order to the extent of restoration of possession of shop to previous tenants namely Muhammad Hanif and Abdul Khaliq, framed following issue:----- ---7-A, What should be the rent of disputed shop after reconstruction?"
He while accepting the appeal partly, remanded the case back to the Trial Court for its fresh decision on Issue No.7-A. Feeling aggrieved thereby the present petitioners filed S.A.O. Against the order of the Additional District Judge in the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was dismissed vide impugned order/judgment.
2. Learned counsel for the petitioners has raised following points before us:--
(1) That provisions of section 13(5-B) of the Rent Restriction Ordinance being inconsistent with rights conferred by Article 23 of the Constitution of Islamic Republic of Pakistan, 1973 are void.
(2) That provisions of section 13 (5-B) of the Rent Restriction Ordinance are violative of the Fundamental Rights guaranteed by the Constitution in that, the aforesaid section places restrictions only on the landlord without providing any guarantee to escape from the mala fide legal proceedings initiated by an old tenant; and
(3) That the application of the respondents for the restoration of possession of shop to them was barred by the, in that, the reconstruction of the shop was complete on 1-4-1992 whereas the application for the restoration of the shop was filed on 28-4-1992, although under section 13(5-B) of the Rent Restriction Ordinance the old tenants were obliged to file an application/petition before the completion of the construction.
3. We have considered the submissions made by the learned counsel with care. We do not agree with him. We find that points at Nos. (1) and (2) were not raised before the Rent Controller, Additional District Judge and the High Court as well. Even otherwise, the provisions of section 13(5- B) of the Rent Restriction Ordinance do not appear to be violative of the relevant Articles of the Constitution guaranteeing Fundamental Rights. As regards point at No.(3), we find that Abdur Rauf A.W.1 has clearly stated that the Local Commission had inspected .The spot on 30-5-1992 and by that the the reconstruction of the shops was not complete. Furthermore, Khawaja Khalid Mahmood R.W.2 has admitted that the Rent Deed of the disputed shop in his favour was executed on 11-3-1992 by Ch. Munawar Khan which will show that even before the completion of the reconstruction, Ch. Munawar Khan had decided not to deliver the possession of the shop to the old tenants/respondents in terms of compromise and under the orders of the High Court dated 21-10- 1990. Admittedly, the possession of the shop was delivered to the petitioners by the respondents in pursuance to the compromise and under the orders of the High Court dated 21-10-1990. He undertook to restore possession of the shop to the respondents after reconstruction. He cannot be allowed to resile from the terms of his compromise on basis whereof he had obtained the possession of the shop from the respondents. The orders passed by the. Additional District Judge and the High Court as well, are just and fair in the circumstances of the case.
4. No case for interference with the impugned judgment is made out. Leave to appeal is, therefore, refused and the petition is dismissed.