This revision application under section 115, Civil Procedure Code is directed against the judgment and decree of the learned Senior Civil Judge, Mirpurkhas, dated 31-10-1975, whereby he decreed the suit of the respondent and directed the applicants to restore the possession of the suit premises to the respondent.
2. The facts, in brief, which have given rise to this revision application are that the applicants, along with his brother. Ghulam Murtaza, are the owners of property bearing C. S. No. 547/548 in Khari Quarters, Mirpur property consists of a number of rooms out of which two were take by the respondent since about 10 years back, on a monthly rental of ,' running a hotel. For the purposes of the hotel business a shed was also built in front of the two rooms taken on rent by the respondent.
On IU-2-1975, the respondent is alleged to have vacated the premises in question and delivered the same to the applicants. The purpose for which. The respondent had vacated the two rooms is disputed. According to the applicants, the respondent had vacated the two rooms which the intention of winding up the hotel business and giving complete delivery of the premises to the applicants, while it is the case of the respondent that he had only temporarily given possession of the two rooms to the applicants on the clear understanding that after they were repaired, they would be handed back to him. Because of the difference in the respective claims of the difference in the respective claims of the parties, disputes arose between them and the applicants refused to deliver back possession of the rooms to the respondent after the necessary repairs had been carried out. The respondent accordingly filed a suit on 13-2-1975 for possession under section 9 of the Specific Relief Act, which was decreed in his favour on 13-10-1975. It is against the decision in that suit that the applicants have come up in revision to this Court.
3. It is contended by Mr. Abdul Wadood, the learned counsel for the applicants, that section 9 of the Specific Relief Act is not applicable to the facts of the instant case, as the premises in question were voluntarily vacated by the applicants. His submission was that a suit under the said section would only lie where a person was forcibly deprived of immovable property in his possession. In support of his contention, the learned counsel placed reliance on a decision of this Court in the case of Abdul Jamil v. Haroon () PLD 1969 Kar. 783. No doubt there is an observation in that judgment which seems to support the contention of the learned Advocate for the applicants, for, the observation is to effect that "in my opinion, where there has been no forceful dispossession, section 9 of the Specific Relief Act would not apply". A perusal of the judgment, however, shows that the learned Judge had in his view only cases where the plaintiff was deprived of physical possession of immovable properties by unlawful means. The section refer to cases of dispossession otherwise than in due course of law. They may and can be cases where a person is dispossessed, otherwise than in due course of law, though the dispossession may not be forcible.
For A instance, a person may be dispossessed through fraud or a trick. In such cases, though the dispossession would obviously be otherwise than. In due course of law, it would not be forcible.
4. It was next contended by Mr. A. Wadood, that inasmuch as the respondent had voluntarily delivered possession of the premises to the applicants, without any unlawful means being employed, he could not have recourse to the provisions of section 9 of the Specific Relief Act. His contention, in other words was, that a person had to be in actual and physical possession before he can have resort to the provisions of the said section. I have already referred to the fact that there are conflicting claims as to how and for what purpose the respondent came to give possession of the premises to the applicants. The learned Court found, on an examina--tion of the entire evidence in the case, and I entirely agree with its assessment on this issue that the possession of the premises was only temporarily given to the applicants for the purposes of effecting repairs. The respondent admittedly had been a tenant of the applicants for the last 10 years. It was found that his lease, which had been renewed from time to time, had still not expired, when he is alleged to have parted with the possession of the property in question. In the present age of shortage of accommoda--tion, it is unlikely that the respondent would have voluntarily surrendered the premises where he was running a hotel and for which premises he was paying only a paltry sum of Rs. 9 per month. In any case, there was no tangible evidence produced by the applicants to show that the respondent had decided to close down his business in the premises in question and had voluntarily delivered the same to the applicants. On the other hand, there was the sworn testimony of the respondent that the premises had been given only provisionally to the applicants for the purposes of repairs.The fact that repairs were started in the premises immediately after such delivery support his contention. Further support to his contention is given by witnesses Abdul Aziz and mason Ali Raza. No doubt, the mason has stated that the respondent was present when the door of the premises was walled up by him and that the respondent had raised no objection to such action, but he has conceded that a number of persons were present at that time, which suggests that evidently there was some dispute in connection with the closing of the door. In any case, the very fact that only three days after the delivery of possession of the premises to the applicants, the res--pondent filed a suit against the applicants, goes to show that the delivery was only temporary for the purposes of the repairs of the premises, as asserted by the respondent.
5. Mr. Nizam Ahmed, the learned counsel for the respondent, submitted that actual and physical possession of premises is not an essential pre--condition to the filing of a suit under section 9 of the specific Relief Act, and that it is enough if the plaintiff can show that either he was in constructive possession of the property or that he had the power of using the property, a and when, he deemed it necessary to do so. In support of his contention he relied upon the decisions reported in PLD 1970 Lah. 560 and PLD a 1973 Lah. 655 which decisions have been relied upon by the learned trial Court itself. I am in respectful agreement with the legal proposition laid down in the said two rulings. A person cannot be denied have in recourse to the provisions of section 9 of the Specific Relief Act merely because he has permitted another person to temporarily use the premises for a specific and limited purpose. In such cases, in my humble opinion, he still continues to be in possession of the same, though the actual and physical possession may be with another person.
6. For the reasons stated by me above, I find no substance in this application which is accordingly dismissed with costs.