' SYED DEEDAR HUSSAIN SHAH, J.---Leave is sought against the order of the High Court of Sindh, Karachi, dated 16-4-2001, passed in C.M.As. Nos.720 and 721 of 2001 in F.R.A. No, 168 of 1991.
2. Briefly stated that facts of the case are that in the year 1955 the plot in dispute was leased out to the petitioner through a registered lease deed by father and uncle of the respondent, who were then its joint owners for establishing a petrol pump thereon and to carry on business in petroleum products. On 13-12-1962 when the said lease was still subsisting the plot in question was gifted to the respondents by the father and uncle by an oral declaration dated 24-12-1962. The said plot was again leased out to the petitioner by the father of the respondent through a registered instrument dated 28-9-1971 on a monthly rent of Rs,1,800. The lease was valid for ten years and according to clause 3(d) of the lease agreement (Exh.A-6), the lease could further be extended for another ten years at the option of the petitioner on payment of enhanced monthly rent of Rs,2,000 and after expiry of the said term, to a further period of ten years on the same terms find conditions except that the rent for such extended period was to the settled by mutual agreement of the parties. The period of tenancy was to expire on 31-3-1981, therefore, the petitioner addressed a letter dated 24- 12-1980 to the respondent's father exercising its first renewal option for ten years in terms of the said lease agreement. A cheque for Rs,26,400 covering advance rent for one year was also sent to the respondent's father, but the same was not accepted because the respondent's father requested for enhancement of rent. After correspondence between the parties for some time the cheque was finally encashed by the respondent's father. Thereafter, cheques offered for the years 1982-83 and 1983-84 were also accepted by the respondent's father. The cheque sent by the petitioner for the year 1984-85 was returned by the respondent's father with his lawyer's letter dated 14-4-1984, as the respondent had filed a rent application before the Rent Controller, Karachi- South, for eviction of the petitioner from the demised plot. According to the respondent, after the expiry of the term of the said lease deed, the tenancy had ceased to be valid in terms of section 6 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) and, therefore, the petitioner had become liable to be ejected from the demised premises. The premises in question, according to the respondent, had also been leased out by the petitioner without the consent of the respondent; the petitioner also raised unauthorised construction by making addition of a cabin on the first floor with a staircase leading thereto which, according to the respondent, was in complete contravention of the terms of the tenancy, and that upon attaining majority on 24-12-1976 the respondent required the premises for her own personal use.
3. The petitioner resisted the rent application. The parties adduced their respective evidence and upon such evidence, the learned Rent Controller found that the case of the respondent had been fully established and, therefore, vide order dated 13-1-1991, directed the petitioner to vacate the premises.
4. Feeling aggrieved, the petitioner filed C.M.As. Nos.720 and 721 of 2001 in F.R.A. No,168 of 1991, which were dismissed by the learned High. Court vide impugned judgment dated 16-4-2001. It is pertinent to point out that judgment dated 23-6-1991 passed in F.R.A. No,168 of 1991, was challenged before this Court through C.A. No,555 of 1993 (Messrs Caltex Oil Pakistan v.. Mrs. Yasmin Adil Jaffer), which was decided on 1-11-1999, in the following terms: ' "Heard Mr. M. Bilal, Advocate Supreme Court for Appellant and Mr. Abubakr I. Chundrigar, Advocate, Supreme Court of respondent. The, learned counsel for the parties have agreed to the following settlement out of the Court which is recorded as follows:-
(i) that the appellant shall vacate the premises on expiry of the lease period i.e, 31st March, 2001.
(ii) That from today i.e, 1st of November, 1999 the appellant shall pay a sum of Rs,15,000 per month instead of Rs,2,200 per month to the respondent-landlord either directly or deposit the same in Court before 10th of each month.
(iii) In case of default the order of ejectment passed against the appellant will become executable immediately.
(iv) In case the appellant continues to deposit the rent as directed above and fails to vacate the premises by 31st March, 2001, he will be evicted from the premises without any notice and if necessary with police aid: In view of above settlement the appeal stands disposed of. The parties are left to bear their own costs."
5. Thereafter, the petitioner filed, an application under section 12(2) bearing No,720 of 2001 for the following relief:-- ' "In view of the above circumstances, it is prayed that this Hon'ble Court may be pleased to record the evidence in this behalf and after going through the same, may be pleased to declare that the impugned judgments of rent case of this Hon'ble Court on the issue of personal bona fide was obtained by practising fraud upon the Court by making false statement and as such set asie the same or pass any order which deem fit and proper in the circumstances of the case. And in alternative the occupant/dealers of the applicant may be allowed to purchase the plot/tenement in question at the prevailing market rate instead to sell the plot to any 3rd party."
' The aforesaid application was dismissed by the learned Single Judge in Chambers. Hence, this petition.
6. Mr. Mumtaz Ahmad Shaikh, learned Advocate Supreme Court for the petitioner, inter alia.,.
Contended that mere acceptance of the settlement made outside the Court does not amount to a final judgment or order of this Court, in terms of subsection .(2) of section 12, C.P.C, whereas the learned High Court should have framed issue and recorded evidence before deciding the application, and that the impugned judgment is not sustainable. In support of his submissions, he has relied on Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCM R 1171), Province of Punjab through Collector, Sialkot v Muhammad Irshad Bajwa (1999 SCM R 1555 and 1557), Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCM R 1516) and Mubarak Ali v. Fazal Muhammad and another (PLD 1995 SC 564).
7. On the other hand, Qazi Faez Issa, learned counsel for the respondent, has supported the impugned judgment and further pointed out that keeping in view the chequered history of the case and the consent judgment passed by this Court on 1-111999 this petition may be dismissed. He has relied on Nazir Ahmed v. Muhammad Shard and others (2001 SCM R 46),
8. We have held the learned counsel for. The parties and minutely perused the material available on record. The learned High Court at length has discussed the case law laid down by this Court and has elaborately dealt with the contentions of the learned counsel for the petitioner. It would be advantageous to refer to the relevant paragraph of the impugned judgment, which reads as under:- "8 .Nevertheless in all the judgments cited by Mr. Mumtaz Ahmed Sheikh their Lordships appear to have attributed finality to the judgments of the High Court when leave to appeal against them has been refused by the Hon'ble Supreme Court or where a petition for such leave has not been considered. The distinguishing factor between those judgments and the one in the instant case appears to be that leave to appeal against the judgment of the High Court had already been granted by the Hon'ble Supreme Court before the appeal was finally disposed of. Moreover, the order of the Supreme Court also modifies the judgment of the High Court not only to the extent that an additional period of six months to vacate the premises was granted but the rent was also substantially enhanced."
9. In view of, the foregoing reasons, the case-law referred to by the learned counsel for the petitioner is not applicable to the facts of the case in hand, whereas the case-law cited by the learned, counsel for the respondent is relevant and helpful to the case of the respondent. We find that there is no misreading or non-reading of material on record so also there is no misapplication of law warranting interference by this Court.
10. Resultantly, this petition is devoid of merit and substance, which is hereby dismissed and leave to appeal is declined.