HAZRATULLAH Versus DISTRICT COUNCIL, HARIPUR

ORDER

FAZAL ILAHI KHAN, J.‑ ‑‑Petitioner seeks leave to appeal against the judgment of learned Peshawar High Court, Circuit Bench Abbottabad dated 13‑6‑1995 passed in Civil Revision No. 172 of 1993.

2. Hazratullah petitioner herein got on lease bus stand at Ghazi, District Abbottabad for a sum of Rs.1,26,000 in an open bid for a period from 1‑3‑1983 to 30‑6‑1984 from District Council, Abbottabad. In terms of the bid a sum of Rs.10,000 was deposited as security as well as one advance instalment of Rs.12,000 on 22‑5‑1983. The terms of the lease were specifically reduced into writing per agreement deed dated 21‑6‑1988. On failure of the petitioner to make payment of the disputed instalments the agreement was cancelled. The petitioner, therefore, filed the present suit seeking declaration that he was not bound by the contract as it was not acted upon by the respondent itself in terms of the agreement and further prayer was made for recovery of Rs.22,600 stated above.

3. The suit was contested, issues framed and evidence was led by the parties. The learned trial Judge decreed the suit on 11‑3‑1992 and appeal against the same was dismissed by the learned District Judge on 26‑3‑1993. However, in revision filed by the respondent the learned High Court set aside the judgment and decree of both the Courts below and dismissed the suit.

4. It was contended by the learned counsel for the petitioner that the concurrent findings of the 2 Courts below to the effect that per contract of lease executed between the parties on 21‑6‑1983 the respondent was duty bound to restrain the transporters from using another bus stand in operation by the authority of the R.T.A. That the District Council was approached and the grievance was raised in response whereof a letter was addressed to the S.S.P. concerned to look into the matter and subsequently the bus stand permit was cancelled but in appeal the order was set aside and the R.T.A. bus stand was restored on 24‑11‑1983. According to the 2 Courts below the respondent was bound to have arranged the closure of the second bus stand soon after the leasing out the bus stand in question in open auction.

5. The learned High Court, however, did not agree with the findings recorded by the 2 Courts below on the ground that it was based on misreading and non‑reading of material evidence and that the agreement deed executed between the parties in pursuance of the terms and conditions of auction of the bus stand in the year 1983‑84 have been totally ignored. Accordingly in the presence of an agreement deed the oral evidence was held to be of no help to the petitioner. The findings of the 2 Courts below were, therefore, set aside and the petitioner/plaintiff's suit was dismissed.

6. After hearing the learned counsel for the petitioner and going through the record there is no denial of the fact that the bus stand which was authorised by the R.T.A. was in operation during the period when bid for the bus stand in question was leased out in favour of the petitioner, on the terms and conditions agreed upon. These terms and conditions are fully reduced into writing per agreement deed copy of which is available on file. Terms and conditions per lease agreement reads as follows:‑‑

7. From perusal of the above it is evident that there was no such condition that the R.T.A. bus stand would be closed or the transporters using that bust stand would be compelled to use the bus stand in question. The letter even if written by the Chairman, District Council to the S.S.P. would in no manner change the terms and conditions of the auction in question. According to the agreement the petitioner was to pay the remaining lease amount in 10 equal instalments of Rs.12,600 on 5th of each month failure of which empowered the respondent to cancel the lease agreement. Such being the case the two Courts below had acted illegally and with material irregularity in ignoring the written agreement and in basing reliance on oral evidence and in decreeing the petitioner/plaintiff's suit on such evidence. We, therefore, find no infirmity in the judgment of the learned High Court in setting aside the judgments and decrees of the 2 Courts below. Leave is refused and petition is dismissed.

M.B.A./H‑4/S Petition dismissed.