' AFTAB AHMED GORAR, J.--Through this Civil Revision Application the applicant Miss Mehtab Jehan has assailed the Judgment dated 19-5-2011 passed by learned Vth Additional District Judge, Karachi East whereby he dismissed Civil Appeal No,25/2009 filed by the applicant against judgment dated 14-1-2009 and decree dated 23-1-2009 passed by learned VIIIth Senior Civil Judge, Karachi East Whereby Civil Suit No,878/2003 filed by the applicant was dismissed.
2. Brief facts, giving rise to the filing of this revision, are that the applicant was inducted in the tenement viz. First floor (left side) admeasuring about 19 x 32 feet constructed on commercial Plot No,LSA-1-7, Row-8 St-4 Block No,10. Scheme No,24, Gulshan-e-Iqbal, Karachi by respondent No,1 Zahid Hussain vide tenancy agreement dated 9-1-1996 executed between the parties on monthly rent of Rs,3500 which was mutually enhanced from time to time and lastly was being paid @ 5200 p.m. The applicant filed civil suit for possession, recovery, rendition of accounts and permanent injunction in respect of the said tenement/shop stating therein that in the said shop she had opened a beauty parlor in the name and style of 'Excellent Beauty Parlor and Sliming Center' spending a sum of Rs, 15,65,438 over decoration and installing necessary equipment required to run a beauty parlor and slimming center. However, in the month of April, 2002 on account of her indisposition, she delegated her power to manage the beauty parlor in favour of respondent No,2, Mst.Tabassum, being her employee. She was directed to render accounts in this regard on monthly basis to her, but all of sudden on 22-2-2003 respondent No,1 occupied the shop in question, by putting his another lock over her lock. She tried to settle the matter with him who kept her on hopes and promises and lastly both the respondents in collusion with each other, occupied the shop in question, took into their possession her valuable articles worth Rs,15,65,438 therefore she prayed, inter alia, that possession of the same be restored to her along with the valuable articles and to issue direction to respondent No,2 for rendition of accounts.
3. Upon service of summons, respondents Nos.1 and 2 filed separate written statements.
Respondent No,1 in his written statement raised legal objections with regard to maintainability of the suit, however taking over possession of the shop in question was admitted because the applicant had failed to pay the rent for three months, therefore there was no alternate but to take its possession and put his own lock on the grill of the shop. However, after putting the lock, respondent No,1 gave three days' time to the applicant to clear the arrears and to clarify the question of subletting the shop to respondent No,2, Mst. Tabassum, but she did not turn up and then on the approach of respondent No,2 he handed over possession of the shop in question to her on the tenancy basis on the monthly rent on her undertaking that she would deliver the articles of the applicant along with furniture lying therein. He prayed for dismissal of the suit.
4. Respondent No,2 in her written statement admitted to have taken over the possession of the shop in question from respondent No,1 in terms of tenancy agreement, as such she asserted that no cause of action had accrued to the applicant against her. She denied that she was handed over the possession of the shop in question by the applicant but averred that she was handed over the possession by respondent No,1 when the shop was lying vacant. She however admitted that there were few articles in the shop for which a list was prepared and she undertook to return the same to respondent No,1 but the list was not in accordance with the list submitted by the applicant.
She also prayed for dismissal of the suit.
5. After framing the issues, recording the evidence and hearing the counsel for the parties the trial court dismissed the suit of the applicant vide judgment dated 14-1-2009 followed by the Decree dated 23-1-2009. The said judgment and decree were challenged by the applicant in Civil Appeal No,25/2009 which was also dismissed vide Judgment dated 19-5-2009 hence this civil revision.
6. Learned counsel for the applicant contended that the impugned judgments passed by the two courts below are based on conjectures and surmises misreading and non-reading of pleadings/evidence; that the two courts below erred in holding that respondent No,2 was a partner of the applicant although there was no material available or agreement regarding alleged partnership business. According to him, in fact, respondent No,2 was working as senior worker of the applicant. He further contended that respondent No,2 herself admitted that some articles were lying in the shop when she took over the possession then how could she say that the shop was lying vacant and the courts below have also not appreciated this aspect of the case. He further contended that respondent No,2 after filing her written statement did not turn up to prove in evidence the contents of her written statement or deny the assertions made by the applicant in her evidence. He further contended that two courts below also failed to take into consideration the observation of the District Judge, Karachi given in the revision application filed by the applicant that she was dispossessed without due process of law and the suit was partly decreed and the possession was restored to the applicant. He prayed for setting aside of the impugned judgments and decree.
7. On the other hand, learned counsel for respondent No,1 contended that the judgments of the two courts below are in accordance with the law and norms of justice and sound and cogent reasons have been assigned for the findings arrived at by the courts below. He further contended that the civil revision application against the concurrent findings is not maintainable. According to him, the applicant is trying to prolong the litigation in order to retain the possession of the demised premises for a long period. He prayed for dismissal of the petition.
8. No body put his appearance to argue the case on behalf of respondent No,2.
9. 1 have considered the arguments advanced by the learned counsel for the parties and perused the material available on the record.
10. Since the possession of the premises in question was restored to the applicant vide order dated 16-5-2005 passed in Civil Revision Application No,45/2004 by the learned District Judge Karachi East whereby learned trial court was directed to prepare decree to that extent, therefore, the prayer for possession was not pressed and the suit was agitated only for the reliefs of rendition of accounts and recovery of losses allegedly suffered by the applicant at the hands of the respondents.
11. It seems that on these points the applicant and his attorney made certain admissions which are very material and the adjudication of these points. In this connection it would be advantageous to refer hereunder certain portions from the cross-examination of the applicant:-- "It is correct to suggest that the defendant No,1 has no concern with my business. It is correct that the defendant No,1 is landlord of the premises and I am his tenant on monthly rent .... It is correct to suggest that from February 2003 till taken the possession by me through court, the defendant No,2 was in possession of premises. It is correct to suggest that when I left the shop in February, 2003 all the articles were handed over by me to defendant No,2."
' Besides above the attorney of the applicant who was also brother of the applicant also admitted in his cross-examination in Rent Case No,345/2007 "it is fact that one lady Tabassum was in possession of the rented premises when dispossession took place, having handed over business by opponent to said Tabassum prior to dispossession."
12. The stand taken by the applicant is that in the month of April, 2002 due to her ill health she delegated her power to manage the beauty parlour to respondent No,2 being her employee with the direction to render accounts on monthly basis to her, but all of a sudden on 22-2-2003 respondent occupied the demised premises and put his own lock over the lock of the applicant.
Now questions arises that when the applicant had handed over possession of the beauty parlour, to respondent No,2 namely Mst.Tabassum in the month of April, 2002, who was allegedly running the beauty parlour, then how respondent No,1 could be held responsible to render the accounts regarding monthly income of the beauty parlour or causing losses due to removal/ damage of equipment lying in the parlour. The case of the applicant is not that respondent had taken over the administration of beauty parlour, nor it is claimed that he threw out/dispossessed the applicant and respondent No,2 physically from the demised premises. In such circumstances, the demand of the applicant to render the accounts of the business of beauty parlour or to return her equipment lying in the beauty parlour at least against respondent No,1 seems to be totally illogical.
13. It is also apparent from the record that upon restoration of the possession of the beauty parlour on the orders of the learned District Judge, Karachi East in Civil Revision No,45/2004, at the time of handing over the possession of the beauty parlour, she was also entrusted/delivered the articles/equipment lying in the beauty parlour as per list attached with the bailiffs report which has been filed along with the revision as Annexure 'H' receipt whereof was acknowledged by the applicant. However, this list does not tally with the list of articles which was prepared at the time of handing over possession to respondent No,2, Mst. Tabassum by respondent No,2 when she was re- inducted as per new tenancy agreement. The said list was produced by respondent No,1 in his Affidavit-in-evidence as Annexure D/2 along with undertaking of respondent No,2 to handover the said articles/equipment to the applicant Miss.Mehtab Jehan whenever she would approach in presence of the landlord/respondent No,1 as Annexure D/3. There is also nothing on the record that the said articles/equipment were ever returned/ handed over by respondent No,2 to the applicant as per her undertaking. It also appears that respondent No,1 in his Affidavit in Evidence stated that due to non-payment of rent by the applicant, he put his own lock over grill of the shop. Thereafter respondent No, 2, Mst.Tabassum approached him and stated that she had obtained the subject premises from the applicant, but her business was being badly affected due to lock put by respondent No,1, therefore, she requested that she may be re-inducted in the premises on rent.
From this it seems that the business of beauty parlour was being run by respondent No,2 in the absence of the applicant, therefore, at the most she could be expected to render the accounts of the business of beauty parlour and not respondent No,1.
13(sic) Respondent No,2 after filing written statement did not turn up to prove the contents of her written statement or to rebut the allegations levelled against her by the applicant regarding return of the articles/equipment and rendition of accounts of the business of beauty parlour. Even in the written statement she admitted that few articles were lying in the demised premises when she took over the possession of the shop and she undertook to return the same. From the perusal of the impugned judgments it seems that the two courts below have not satisfactorily dealt with such aspect of the case. The applicant has deposed that she had delegated her power to respondent No,2 to run the beauty parlour and had, also handed over her the articles/equipment lying in the beauty parlour, however she has not stepped into the witness box to rebut such assertions of the applicant.
14. So far as the plea that this court under its revisional jurisdiction cannot interfere with the concurrent findings of the two courts below is concerned, it may be observed that normally a concurrent finding of fact cannot be interfered in revisional jurisdiction, however, if it is found that the courts below have exercised their jurisdiction not legally and properly or that in arriving at a question of fact, if the Courts below have committed an error of law, which caused grave injustice, then High Court can interfere in revisional jurisdiction. If any authority is needed, reference can be made to 2006 SCMR 1410 and PLD 2007 Karachi 347. In the instant case, in view of what has been stated in the preceding paragraphs. I am of opinion, that grave injustice would be caused if the applicant is non-suited on this ground so far as her claim against respondent No,2. Mst. Tabassum is concerned which point is required to be dealt with on merits.
15. The upshot of above discussion is that the revision application against respondent No,1, Zahid Hussain, is dismissed in limine. However, the case is remanded back to the trial court for deciding afresh the claim of the applicant against respondent No,2, Mst. Tabassum, regarding rendition of accounts and recovery of articles/equipment lying in the beauty parlour, in accordance with the law after giving opportunity to respondent No,2 to adduce her evidence and hearing the parties or their counsel.
' Revision Application stands disposed of in the above terms.