1. SYED SAEEDUDDIN NASIR, J. Through this petition, the petitioner has impugned the validity of the order dated 29.09.2006 passed by the Additional District and Sessions Judge, Karachi (South), the respondent No,3 in Civil Revision Application No,32/2005, setting aside the order of dismissal of Civil Suit No,370/2004 dated 24.03.2005 filed by the respondent No,1 under Section 9 of the specific Relief Act, 1877, for the recovery of possession of Cabin No,1(5 before the VII Civil Judge and Judicial Magistrate, Karachi (South).
2. 2.Brief facts of the case as narrated in the main memo. of petition are that the petitioner is a public Limited company duly incorporated under the Companies Ordinance, 1984 and is carrying on business of banking, being duly licensed in terms of the Banking Companies Ordinance, 1862. The petitioner purchased property commonly known as the Bundookwala Building No,5 situated at Plot No,4/2, R-5, Railway Quarters, 1.
1. Chundrigar Road, Karachi, admeasuring 3120.46 Square Yards (hereinafter referred to as- the "said property") from the respondent No,2 vide registered Sale Deed dated 21.12.2004, which was duly mutated in the name of the petitioner in the Record of Rights.
3. While the petitioner was enjoying its peaceful possession in respect of the said property, one Mr. Sultan along with some persons, forcibly entered into the said property and attempted to dispossess the petitioner only from an area which was claimed by the respondent No,1 to be Cabin No,10 in respect of which, the respondent No,1 claimed to be the tenant. Upon query, the petitioner's guards were told about the order dated 17.02.2007 passed in Execution Application No,01 of 2006 under which the possession of Cabin No,10 was claimed. However, the petitioner did not allow anyone to occupy any portion of the said property and moved an application/objection before the Executing Court against the aforesaid order. When the petitioner inquired about the aforesaid order, to his surprise he came to know that some litigation is going on between the respondents Nos,1 and 2.
4. 3.According to the petitioner, the respondent No,1 instituted a time barred Civil Suit No,370/2004 in the month of March, 2004 under Section 9 of the Specific Relief Act, 1877 for recovery of possession of Cabin No,10 before the Court of VII Civil Judge and Judicial Magistrate, Karachi (South) alleging therein that the respondent No,1 was the tenant of the respondent No,2 in respect of Cabin No,10, and the latter had unlawfully dispossessed him from the said cabin, whereas the respondent No,2, in the written statement filed in the aforesaid suit raised objections that in 1996 the rear portion of the building situated on the said property, including Cabin No,10 had collapsed due to the dilapidated condition, after which the respondent No,1 had voluntarily left the said property. It was claimed in the written statement that the respondent No,1 was not in possession of Cabin No,10 or any part of the said property since 1996. The learned trial Court vide its order dated 24.03.2005 dismissed the above suit on the ground that the respondent No,1 had failed to prove his possession in respect of Cabin No,10 from the period of 1996-1997 to 2003.
5. 4.Thereafter, the respondent No,1 filed Civil Revision Application No,32/2005 against the aforesaid order of the learned trial Court. The learned trial Court vide its judgment dated 29.09.2006 allowed the said Revision Application on the ground that the petitioner had failed to prove that Cabin No,10 had collapsed in the year 1996 whereas the respondent No,1 had proved his dispossession from Cabin No,10. After the aforesaid order, the trial Court re-prepared a decree dated 05.10.2006; subsequently, the respondent No,1 filed Execution Application No,01 of 2006, against which no objection was filed by the respondent No,2, which was allowed by the trial Court vide its order dated 17.02.2007, whereby writ of possession was issued in favour of the respondent No,1, under which the respondent No,1 forced his entry into the said property on 23.10.2007 when one Mr. Sultan claiming to be the attorney of respondent No,1 tried to occupy the area of Cabin No,10. On 07.04.2008 the respondent No,1 made forcible entry into the said property and occupied a small portion of the property, which according to the respondent No,1 was the area of Cabin No,10.
6. 5.Mr. Farogh Naseem, the learned counsel appearing for the petitioner has inter alia argued that the impugned orders are illegal, unreasonable, beyond the lawful authority, void, ab initio and in breach of the principle of natural justice, therefore, liable to beset-aside; that mere depositing of rent in MRC does not confer the title of a tenant upon the respondent No,1; that the learned Revisional Court erred in not appreciating that the respondent No,2 had no notice of MRC and the said respondent was not collecting the rent from the respondent No,1, the above fact confirms that the respondent No,1 was not in possession of Cabin No,10; that the learned Revisional Court ignored the material aspects of the documentary evidence produced and brought on record by the respondent No,2 in Suit No,370/2004; that the structure/construction of the property had crumbled down in 1996, after which the respondent No,1 disappeared, the fact that the respondent No,1 was not in possession of the Cabin No,10 can further be confirmed since 1996 there was no structure or construction which the respondent No,1 could possibly occupy; that the alleged plea of the respondent No,1 of depositing the rent in MRC is mala fide and with ulterior motive furthermore, the respondent No,2 never received the deposit of rent nor was any notice sent to him; that the respondent No,1 has produced no evidence to show that at any point of time the respondent No,2 had refused to accept the rent which justified the filing of MRC and deposit of rent by the respondent No,1 therein; that the impugned order is unlawful as the burden was on respondent No,1 to prove that he was in possession and not on the respondent No,2 to prove that the building collapsed in 1996, mere assertion by the respondent No,1 that he was dispossessed was not sufficient to allow him relief under Section 9 of Specific Relief Act inasmuch as no utility bill or other evidence was produced by the respondent No,1 to show that he was in possession from 1996 to 2003; that the impugned order in the execution is also unlawful and in breach of principle of natural justice inasmuch as the petitioner was never impleaded as a necessary party to the same; that at the time of purchase the said property by the petitioner there was no structure thereon and the conveyance deed dated 03.11.2004 executed between the petitioner and respondent No,2 it is specifically stated that the property was free from all claims, liens, mortgages and taxes, dues encumbrances, charges, disputes and litigations of any nature whatsoever together with vacant peaceful possession and without structure thereon, which means that at the time of execution of the said sale deed, no Cabin No,10 was available on the said property; that the petitioner is bona fide purchaser for value and consideration without notice of any adverse claim and after that the petitioner has stepped into the shoes of the respondent No,2; that at the time of filing the revision the petitioner was the owner of the said property, however, the petitioner was not impleaded as a necessary party therein and no notice was issued to the petitioner, therefore, no adverse order could have been passed without hearing the petitioner; that a revision in the context of Section 9 of Specific Relief Act, 1877 would only lie the misapplication of the legal position and some defect in the jurisdiction. The Revisional Court in such cases is debarred from deciding factual questions whereas in the present case the order of revision is only upon factual aspect which is not permission. The learned counsel for the petitioner, in order to support his arguments, has placed reliance on (1) PLD 1969 SC 65 (H.M. Saya and Company, Karachi v. Wazir Ali Industries Limited Karachi and another) (2) 2001 SCM R 345 SC (Late Mst. Majeedan through legal heirs and another v.
7. Late Muhammad Naseem through legal heirs and another and (3) AIR 2010 Karnataka 70 (Ashok Kumar Chowan and another v. A.G. Anwar Ali and another).
6. In the case reported in PLD 1969 SC 65 it is held: "The stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein.
8. 7.In the case reported in 2001 SCM R 345 it is held: "Interference in the revision is justified if the case may have been disposed of on an obvious misapprehension as to the legal position or where there is some defect of jurisdiction, but where the only contention raised is that the finding on a question of fact is not based on adequate evidence or is erroneous, interference would not be Justified.
9. 8.In the case reported in AIR 2010 Karnataka 70 it is held:Section 6 of the Specific Relief Act (47 of 1963) that in order to succeed the immovable property in question must be in existence and it is only in such an event that the person dispossessed can seek recovery of possession. In the plaint the plaintiff made averments clearly admitting the fact that the premises in respect of which the suit is filed stood demolished completely long back upon surrendering the possession for repairs...
10. The only remedy available to the plaintiff is to claim for damages if at all he is entitled under the law."
11. 9.We have heard the arguments of the learned counsel for the petitioner and perused material available on the record of the case, whereas none is present for the respondents Nos,1 and 2. Since we have heard the learned counsel for the petitioner at some length, we convert the instant petition at Katcha Peshi stage into regular hearing after admitting the same and dispose it of by this judgment along with all listed applications in the instant petition as well as in disposed of Constitutional Petition No,D-1755/2007.
12. 10.Upon perusal of plaint in Suit No,370/2004 which is a suit for recovery of possession of immovable property under Section 9 of Specific Relief Act, 1877 filed by the respondent No,1 in the Court. of VII Senior Civil Judge and Judicial Magistrate, Karachi (South), the facts as transpire are totally opposed to whatever has been averred by the petitioner in the instant petition. The respondent No,1 has averred in the plaint of the aforesaid suit that the respondent No,1 was residing in Cabin No,10 Bundookwala Building No,5, Survey Plot No,4/2, Mcload Road, I.I. Chundrigar Road, Karachi (hereinafter referred to as the said cabin) since 1964 as a tenant in respect thereof. The respondent No,2 had allotted the said cabin to the respondent No,1 in the year 1964 at the monthly rent of Rs,15/-, which the latter paid to the former from 1964 to 1996 regularly. It is further averred in the plaint that in the year 1996, when the respondent No,2 refused to receive monthly rent from the respondent No,1, he started depositing the same in Court in MRC No,910/1996. When the respondent No,1 went to his hative village at the end of the year 2003, his relative Syed Muhammad Shah, who is the watchman of the adjacent building informed him on telephone that his said cabin had been demolished by the respondent No,2 and household articles have disappeared/taken away by the respondent No,2. It is further averred in the plaint when the respondent No,1 came back to Karachi he approached the respondent No,2 regarding the said cabin and household articles but received no answer, and instead was issued threats of dire consequences from the respondent No,2 if he did not give up his claim in respect of the said cabin. The respondent No,1 stated in the plaint that he has been forcibly dispossessed from the said cabin without due course of law and as such he is entitled to the restoration of possession of the said cabin.
11. The respondent No,2 filed written statement wherein the allegations leveled by the respondent No,1 against it were denied. However, the respondent No,2 did not deny that the respondent No,1 was their tenant in respect of the said cabin at the monthly rent of Rs,15/- and have paid the same till 1996. According to the respondent No,2 in the year 1996-1997 the rear portion of the building had fallen down and thereafter the respondent No,1 had also disappeared. It is further averred in the written statement that the respondent No,2 did not have any knowledge about the fact that the respondent No,1 was depositing rent in MRC No,910/1996. The respondent No,2 has added lastly in the written statement that no cause of action accrued to the respondent No,1 for bringing the suit inasmuch as the said cabin was not. in existence anymore when the suit was brought to the Court.
12. From the pleadings of the parties, the learned trial Court framed the following issues for determination:- 1.Whether the plaintiff is depositing monthly rent in respect of Cabin No,10, Bundookwala Building No,5, Survey Plot No,4/2, Mcload Road, Karachi through Misc. Application No,910/1996 in the IVth Court of Senior Civil Judge at Karachi?
13. 2.Whether the plaintiff lives in the rear portions since 1996/97 to 2003?
14. 3.Whether the plaintiff has been dispossessed illegally and forcibly from the Cabin No,10, Bundookwala Building No,5, Survey Plot No,4/2, Mcload Road, Karachi by the defendant?
15. 4.What should the decree be?
13. The respondent No,1 besides himself examined two more witnesses namely; (1) PW Saeed Muhammad son of Zarmin Shah and (2) PW Younus son of Abdul Jalil. In his examination-in- chief/deposition dated 27.06.2004 the respondent No,1 had stated on oath that respondent No,2 had issued letter of allotment to him, which he produced at Exh.P/1, the rent receipts issued by the respondent No,2 issued to the respondent No,1 as Exhs.P/2 and P/3, copy of MRC and copy of receipt was produced at Exhs.P/4 and P/5. The respondent No,1 in his deposition has categorically stated that the respondent No,2, M/s. Ghandara Industries Limited (M/s. National Motors Limited) allotted Cabin No,10 in the said property to the plaintiff in 1964. The respondent No,1 was regularly making rent to the defendant from 1964 to 1996, however, when the respondent No,2 refused to take monthly rent from the respondent No,1 in the year 1996, the respondent No,1 started depositing the same through MRC No,901/1996 in the Court of IV Senior Civil Judge, Karachi (South) which is paid up-to-date. The respondent No,1 further stated that when he had gone to his native village at the end of year 2003 to attend to his family problems, the relative of respondent No,1 Syed Muhammad Shah son of Zarmin Shah, who was the watchman of the adjacent building informed the respondent No,1 by telephone in February, 2004 that Cabin No,10 in respect of which the respondent No,1 was a tenant, had been demolished from the said building and his household articles have been removed by the respondent No,2. In his cross examination dated 08.09.2004 the respondent No,1 has stated that while he was away to his native town at District Mansehrah, he was informed on phone No,0300-6313586 by Gul Khan Saeed Muhammad Shah that his cabin had been demolished during the three holidays of Muharram.
16. 14.The respondent No,1 also produced PW Saeed Muhammad son of Zarmin Shah who also supported the version of the plaintiff in his examination-in-chief dated 04.11.2004, who remained steadfast in his assertion in the cross-examination as well. Thereafter, the respondent No,1 produced PW Younus son of Abdul Jalil, who also supported the version of the plaintiff in his examination-in-chief, and remained unwaivered in his cross-examination.
17. 15.In the examination-in-chief of the respondent No,2, the witness categorically admitted that the respondent No,1 was their tenant. In the year 1964 when the respondent No,2 purchased the building in question, the respondent No,1 was already in possession of cabin No,10, which was not allotted by the respondent No,2 to the respondent No,
1. The respondent No,1 paid the rent to the respondent No,2 from 1964 to 1996. In the cross examination, witness of the respondent No,2 had admitted that the respondent No,2 did not issue any legal notice regarding non-payment of rent to the respondent No,1 due to the fact that the building in question had collapsed.
18. 16.While answering issue No,1, the learned trial court has given its finding in affirmative by observing that it is an admitted position that respondent No,1 was tenant of the respondent No, 2 and had been paying rent to them regularly till 1996, and further rent challan in the name of the respondent No,2 in MRC No,910/96 is also indicative of the fact that there existed the relationship of landlord and tenant between the respondents Nos,1 and 2. Finding of the trial court to this extent is reasonable and proper upon appreciation of the evidence adduced by the respondent No,l.
19. However, while answering issues Nos,2 and 3, in negative the learned trial court has taken a U-turn and in its findings and has observed that the respondent No,1 has failed to establish that he was in possession of the said cabin during the period of 1996-97 -2003, and that he was dispossessed from it illegally and forcibly by the respondent No,l. Thereafter, blowing hot and cold in the same breath, the learned trial court, while refuting itself, has stated in the judgment that the respondent No,2 has admitted in his deposition that the respondent No,1 was their tenant since 1964, and when the respondent No,2 refused to accept rent from him, he started depositing rent in MRC No,910 of 1996 in the Court of IVth Senior Civil Judge and Rent Controller (South) Karachi, thereafter when the rear portion of the building collapsed along with the tenement of respondent No,1, he disappeared from the scene.
20. 17.It is an admitted position that when the respondent No,2 stopped taking rent from the respondent No,1, he started depositing the same in Court as aforesaid and continued to be the tenant in respect of the said cabin. Even if we assume for a moment for the sake of argument that the building on the said property had collapsed itself, and was not deliberately demolished by the respondent No,2 before it being sold to the petitioner, since the respondent No,1 continued to deposit rent in the court as aforesaid, he continued to be in constructive possession of the premises in respect of which he was a tenant, and reserved the right to get his possession restored through court under Section 9 of the Specific Relief Act, 1877.
21. 18.In the light of depositions of the respondent No,1 as well as two other PWs and so also the deposition of the respondent No,2 it becomes crystal clear that while the respondent No,1 was away to his native village in Mansehra the respondent No,2 behind his back malafidely demolished the rear portion of the building along with cabin of respondent No,1, in order to forcibly and illegally dispossess the respondent No,1 from it, and made it look like as if that particular portion of the building had fallen down itself due to its dilapidated condition. We also do not agree with the contention of the learned counsel for the petitioner that all along the petitioner was not aware of the litigation going on between the respondents Nos,1 and 2, when it purchased the said property from the respondent No,2, or for that matter the respondent No,2 was unaware of the MRC No,910/2004 wherein the respondent No,1 was depositing rent in respect of the said cabin. We are of the opinion that the respondent No,2 must have been aware of such a rent case wherein the rent was being deposited, and being acutely conscious of the same, the petitioner abstained from serving a notice of adornment under Section 18 of Sindh Rented Premises Ordinance, 1979 upon the respondent No,1, so that his title as a tenant of cabin No,10 should not be recognized. It is also not conceivable that the respondent No,2 kept the petitioner in dark with regard to the aforesaid litigation going on between itself and the respondent No, 1.
22. 19.To our surprise, though in the opinion of the trial court, the claim of the respondent No,2 that the Building wherein the rented premises of the respondent No,1 was situated collapsed itself in the year 1996 due to its dilapidated condition, is not supported by any other/independent evidence or document besides only the deposition of the respondent No,2, and whereas the claim of the respondent No,1 is corroborated by two independent witnesses, even then the learned trial court for some obscure reason has totally ignored and discarded the evidence led by the respondent No,1 that he has been forcibly dispossessed by demolishing the building by the respondent No,2. The witness appearing on behalf of the respondent No,2 has also admitted in his examination-in-chief as well as in his cross-examination that the respondent No,1 was their tenant till 1996, when the rear portion of the building collapsed, whereas the respondent No,1 in his cross-examination has stated on oath in categorical terms that it is incorrect to suggest that the rear portion where he lived was demolished in the year 1996-1997 and since then he is not living there. He has further stated that he went to his native town in the year 2003 when during the 3 holidays of Moharram-ul-Haram on 29.02.2004, the respondent No,2 demolished the, portion where his cabin was situated in order to illegally dispossess him.
23. 20.Turning now to the case law cited by the learned counsel for the petitioner, it may be observed that in the case reported in PLD 1969 SC 65 supra, it is held that even the stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. There is no cavil to this proposition inasmuch as the petitioner was not a party to Suit No,370/2004. Therefore, we are of the considered opinion that the instant petition is maintainable.
24. 21.In the case reported in 2001 SCM R 345 supra, it is held that interference in the revision is justified if the case may have been disposed of on an obvious misapprehension as to the legal position or where there is some defect of jurisdiction, but where the only contention raised is that the finding on a question of fact is not based on adequate evidence or is erroneous, interference would not be justified. We do not agree with the learned counsel for the petitioner who pressed into service the above case law in support of his contention that interference in revision was not justified by the Revisional Court where contention was raised in it on a question of fact, which was not based on evidence. This case law is distinguishable from the case in hand inasmuch as the contentions raised in the revision are not merely on questions of facts based on evidence, but the main contention of the respondent No,1 in the revision was that the trial court had ignored all the principles of natural justice, equity, equality and good conscience, and it also did not consider the evidence led by both the parties by applying its mind to the same. Therefore, we are of the opinion that this judgment lends no support to the petitioner.
25. 22 In the case reported in AIR 2010 Karnataka 70 supra, it is held that in order to succeed in a suit for restoration of possession, the immovable property in question must be in existence and it is only in such an event that the person dispossessed can seek recovery of possession.
26. Where the premises in respect of which the suit is filed stood demolished completely long back upon surrendering the possession for repairs, the question of restoring possession does not arise. The proper course would be to claim damages if at all the plaintiff is entitled under the law. Again the facts and circumstances of the instant case are distinguishable from the facts of the judgment relied upon by the learned counsel for the petitioner on two counts namely; (i) the possession was never handed over by the respondent No,1 to the respondent No,2 voluntarily for the repairs of the premises in his possession; (ii) the respondent No,2 willfully and malafidely demolished the building in question in order to deprive the respondent No,1 of his lawful possession as tenant in respect of the said cabin and to evict him illegally therefrom.
27. 23 It is pertinent to mention here that Section 9 of the Specific Relief Act, 1877 gives a specific privilege to a person in possession who takes action promptly, in case such a person occupying the possession had been dispossessed, is entitled to succeeded simply by proving (i) that he was in possession (ii) that he has been dispossessed by the defendant (iii) that his dispossession is not in accordance with law (iv) that his dispossession took place within six months of the filing of the suit, which burden has been successfully discharged by the respondent No,1 in his suit. We are fortified in our view by the judgment the case of Late Mst.
28. Majeedan through legal heirs and another v. Late Muhammad Naseem through legal heirs and another reported in 2001 SCM R 345. Title of the suit is not material in a suit under this Section and any person who had been dispossessed otherwise then in due course of law without proving or pleading title can seek to be re-inducted into possession, even though such a relief was sought against the owner of the property himself.
29. 24 It is rightly observed by the Revisional Court that the respondent No,2 having admitted the status of the respondent No,1 as tenant in respect of the said Cabin, which was also asserted by the respondent No,1 and two other witnesses produced by him, the burden to be discharged was on the respondent No,2 that the building in which the said cabin was situated had itself collapsed and the respondent No,1 voluntarily handed over possession of the premises to the respondent No,2. Once the respondent No,1 having deposed on oath that he was forcibly dispossessed from the said cabin, the burden squarely fell upon the respondent No,2 to discharge the same by proving that the respondent No,1 was not forcibly dispossessed. The respondent No,1 could not discharge the said burden by adducing any evidence in rebuttal.
30. As aforesaid, the learned trial Court did not properly appreciate the evidence available on record and therefore the findings of trial Court on both issues Nos,2 and 3 are perverse and were rightly reversed by the Revisional Court by allowing the suit of the respondent No,1 and decreeing it. We have no other option but to hold that the respondent No,1 was forcibly dispossessed from the said cabin by the respondent No,2, and due to such forcible eviction, the respondent No,1 was entitled to file a suit under Section 9 of the Specific Relief Act, 1877 for the restoration, of possession in respect thereof.
31. 25 The judgment of the trial court, in our view is perverse, which suffers from material irregularities, misreading and non-reading of evidence available on record of Suit No,370/2004, therefore, we hold that it was rightly turned down by the Revisional Court. In our view, the judicial forum in the dispensation of justice, has no authority to decide rights of the parties according to its own whims, fancies, caprice intuition or imagination. In performing the essential and primary obligation of doing justice, the courts of law are supposed and duty bound to read, consider and conceive evidence of the case available on the record, accurately. Where the trial Court has misread and misinterpreted the evidence and the same is based on presumption and not any reasoning, or evidence not examined in depth, resulting in non-reading of evidence, which has an important bearing on the outcome of the case, the judgment stands vitiated and interference in Revisional jurisdiction would be justified.
32. 26 In view of what has been discussed hereinabove, we do not find any infirmity or illegality in the impugned judgment, which is unexceptionable and does not call for interference by this Court.
33. Therefore, since the petition has no merit, the same is dismissed with no order as to costs, consequently, the restoration application as well as application under Order I, Rule 10, C.P.C. for being impleaded as a necessary party filed by the petitioner in disposed of Constitutional Petition No,D-1755/2007 are also dismissed.