' MUHAMMAD ALAM KHAN, J.--- Muhammad Jehangir and Qayyum Nawaz have brought the instant civil revision under section 115, C.P.C. Against Government of N.-W.F.P. And 4 others through which they are aggrieved from the judgment and decree, dated 31-3-2006 passed by learned Additional District Judge-IV, D.I. Khan whereby the appeal filed by the defendants-respondents against the judgment and decree passed by learned Civil Judge-III, D.I. Khan, dated 2-3-2000 was accepted and the suit of the petitioners was dismissed.
2. Briefly narrated the facts of the case are that the petitioners filed a suit for the recovery of Rupees one million out of which they claimed Rs,8,00,000 as loss to their business as Commission Agents and Rs,2,00,000 as damages for mental and spiritual agony and torture.
3. It was averred in the plaint that a licence for Fruit Commission Agents was granted to the plaintiffs-petitioners by defendants-respondents from 1-7-1985 to 30-6-1986 which was subsequently extended from 1-7-1986 to 30-6-1987. In this respect a deed dated 4-7-1986 was executed between the Municipal Committee (respondent No,4) and the plaintiffs. It was further averred that the site where the petitioners were running their business was previously allotted to Muhammad Saeed son of Abdur Rehman from which the plaintiffs-petitioners obtained the same on cash payment of Rs,9,000 and subsequently, all the arrears outstanding against Muhammad Saeed, the previous allottee amounting to Rs,5,541.92, were also paid to the Municipal Committee.
Subsequently, the respondents served two notices on the petitioners on 23-9-1986 and 11-1-1987 which were duly replied but respondents constructed a wall in front of the petitioners' shop without any justification which resulted in loss and damage to the business as well as to the reputation of the petitioners and thus, they claimed the aforementioned damages.
4. The defendants were summoned who submitted their separate written statements in which the allegations contained in the plaint were hotly contested. Out of the pleadings of the parties, the learned trial Court framed the following issues:---
(1) Whether plaintiffs have got cause.Of action and locus standi?
(2) Whether plaintiffs are estopped to sue?
(3) Whether shop, possession whereof was transferred to plaintiff No,1 vide deed executed dated 4- 7-1986, was reconstructed by plaintiffs without any prior permission of defendants as such plea of new construction of shop could be of no help to plaintiffs?
(4) Whether plaintiffs being licence-holder of Commission Agents can carry on their business in Fruit Market and cannot justifiably be restrained by defendants and notices dated 23-9-1996 and 11-1-1987 are without legal justification?
(5) Whether defendant No,1 got erected a wall in front of suit shop (of plaintiffs) just in order to stop business of plaintiffs?
(6) Whether allegations/assertions made in plaint with regard to mala fide of defendants are correct which subjected plaintiffs to mental torture, agony, distress as such plaintiffs are entitled to compensation to the tune of Rs,2,00,000?
(7) Whether plaintiffs are entitled to decree as prayed for?
(8) Relief. Additional Issues
(1) Whether the suit is within time?
(2) Whether plaintiff has not come with clean hands?
(3) Whether defendants are entitled to special costs in case of dismissal of suit?
5. Parties produced their respective evidence as they wished to produce and the learned Civil Judge-III, D.I. Khan, after hearing the learned counsel for the parties and taking into consideration the data available on the record, vide judgment and decree in Suit No,446/1 of 1996 decided on 2- 3-2000, came to the conclusion that the plaintiffs-petitioners had proved their case, thus, granted a decree of Rupees one million as prayed for in favour of the plaintiffs-petitioners against the defendants-respondents.
6. The defendants-respondents, being aggrieved, filed an appeal before the District Judge which came for hearing before learned Additional District Judge-IV, D.I. Khan who, after hearing the learned counsel for the parties and considering the evidence available on record, vide Civil Appeal No,40 of 2005 decided on 23-5-2006, accepted the appeal of the respondents and dismissed the suit of the plaintiffs-petitioners. Hence, the instant revision petition.
7. Learned counsel for the petitioners submitted that the petitioners had purchased the suit shop from Muhammad Said and all the arrears outstanding against the original allottee were paid to the defendants-respondents. Elaborating his arguments, the learned counsel submitted that the erection of wall by the respondents was not warranted under the law which has not only damaged the business of the petitioners but also mentally and physically disturbed them and thus, it was prayed that the petitioners were entitled to Rupees one million as damages for loss to their business, mental torture and agony and the learned Appellate Court was not justified in disturbing the well-reasoned judgment of the trial Court.
8. Learned counsel for respondents Nos.4 and 3 appearing on preadmission notice argued that there was no agreement of the lease of the shop between the T.M.A. And the petitioners. The suit shop was situated in Vegetable and Fruit Market, specially meant from Canteen in order to provide refreshment and food facilities to the general public and customers. The earlier allottee Muhammad Said was also running a tea shop in the premises and when the said shop was transferred to the petitioners, they were also supposed to run Canteen in it and they, without any permission, started the business of Fruit and Vegetable Commission Agents and thus, they were rightly issued a notice to use the premises for the purpose for which it had been allotted. The petitioners were issued two consecutive notices dated 23-9-1986 and 11-1-1987 but instead of replying to the notices, they launched the instant proceedings. It was also argued that the respondents have never erected a wall in front of the shop and thus, the petitioners were not entitled to the damages as claimed.
9. I have heard the arguments of learned counsel for the parties and have gone through the record of the case.
10. Perusal of the record reveals that admittedly the suit premises were meant for running a Canteen in Vegetable Market in order to provide food facilities to the public and the change of purpose, without permission of the owner/T.M.A., was not warranted under the law because any change of business in the premises was subject to the consent of the owner for which the petitioners have never moved the T.M.A. For regularization. The previous allottee, in whose favour the shop was allotted, has not been made a party who was admittedly running a tea shop in the premises and by transfer of the suit shop to the petitioners, they stepped into the shoes of the previous allottee and were bound to use the premises for the purpose for which it was meant and for any change of business the petitioners were required to move the T.M.A. For its regularization.
There is no evidence on record that the respondents have erected a wall in front of the shop of the petitioners nor they have been evicted from the same shop.
11. Perusal of Exh.P.W.2/D-11 at page 88 of the revision file, would reveal that there was a dispute between Muhammad Farooq and Muhammad Jehangir regarding the construction of Veranda in front of their respective shops and the petitioners submitted this application to the T.M.A. For resolution of dispute. The Commission Agents Association resolved this dispute vide P.W.2/D-3 and signatures of Muhammad Jehangir petitioner and Muhammad Yaqoob were obtained as token of its correctness. So, in the earlier application, the petitioners, admitted the erection of a wall by Muhammad Farooq and not the T.M.A. The petitioners have neither proved the erection of wall by the T.M.A. Nor have proved the alleged damages to their business or mental loss and agonies for which the burden of proof heavily lay on them. Regarding the change of business of Canteen to that of Commission Agent shop, the petitioners can, at any time, move the concerned officer under the prevailing law and the T.M.A. Has never created any hurdles in their way.
12. The judgment and decree of the learned Appellate Court is perfectly sound and in consonance with the established principles of appreciation of -evidence. No misreading or non-reading of evidence has been pointed out by the learned counsel for the petitioners, therefore, the same is not liable to be interfered with.
13. In view of the facts and circumstances of the case narrated above, there is no force in this revision petition which is dismissed in limine.