SHAFI-UR-REHMAN, J.--Leave to appeal was granted on 6-7-1978 in the following words "On the finding given by the Courts below that the respondent have voluntarily vacated the rooms for affecting the repairs, the question arises as to whether it amounts to actual dispossession within the ambit of section 9 of the Specific Relief Act, so as to entitle the respondent to seek the relief for the recovery of possession."
2. The respondent filed a civil suit on 13-2-1975 under section 9 of the Specific Relief Act alleging forcible dispossession from two rooms in his tenancy on 10-2-1975, having before that date vacated the shed in front of these two rooms for repairs. The appellant denied these allegations and claimed that the respondent tenant being in default in payment of rent "vacated the premises in question and handed over the possession to the defendants of his own free will, before the respectable persons." To thwart the respondent's effort to obtain recovery of possession the appellants filed a suit claiming an injunction restraining the respondent from obtaining that relief.
3. The trial Court consolidated the two suits and decided the controversy on facts in the following words and decreed the suit of the respondent while dismissing that of the appellants: "All these admissions in evidence of Ghulam Mustafa and other leads to unrebutted conclusions that Ghulam Mustafa and others wanted that Razi Muhammad should vacate the premises and therefore they were asking him to do so and finally under the pretext of repairs they made him agree to allow repairs with the promise that he will be put back in possession but the first repair work done was closing of the wall between two rooms and the main read thereby disconnecting running of hotel business completely. The only question now to be determined is whether if an owner landlord of the promises approaches the tenant to allow carrying of repair work and thereafter tenant puts aside his belonging with clear understanding and promise to get back possession and then landlord owner closes outer doors of the premises, whether it will amount to dispossession of the tenant excepting in due course of law or it will be termed as voluntarily handing over posses--sion by the tenant.
I have reached the conclusion that Mohammad Razi was dispossessed from the suit premises forcibly and otherwise in due course of law and he did not hand over vacant possession voluntarily.
As far as effect is concerned I hold that he is entitled to get back possession under sec--tion 9 of Specific Relief Act."
4. On revision filed by the appellants the learned Judge in the High Court affirmed the judgment and decree in the following words : "A person cannot be denied having recourse to the provisions of sec--tion 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 con--tinues to be in possession of the same, though the actual and physical possession may be with another person."
5. The learned counsel for the appellant contended that accepting the findings of fact recorded by the two Courts, ignoring the equities of the case arising out of the conduct of the parties, going strictly by the letter of the law contained in section 9 of the Specific Relief Act, it cannot be said that consent of the respondent was lacking or that his dispossession had taken place forcibly or that the dispossession was "otherwise" than in due course of law." On the question of consent it is said only forcible consent amounts to "without consent" and where consent is obtained by deception, trick or fraud, it would be not a case of "without consent". In support of these submissions the learned counsel has referred to the use of the expression "free consent" in Contract Act (section 19 of Contract Act) and its negative definition in section 90, P. P. C. Where the Legislature intended to give a qualitative content to the meaning of word consent. In addition the distinc--tion between void and voidable actions has been brought out by reference to decision in Chairman, District Screening Committee v. Sharif Ahmad Hashmi PLD 1976 SC 258reconsidered in review in 1978 SCMR 367 with a view to establish that such a taint in the obtaining of consent made the result voidable and not void and the only way of avoiding the result was by a regular civil suit and not by sum--mary proceedings under section 9 of the Specific Relief Act. On the question of dispossession the learned counsel contended that possession obtained by landlords after such a consent, as was held to have been obtained in this case, there could not be dispossession as was visualised by section 9 of the Specific Relief Act.
6. The pre-occupation of the two Courts dealing with the case, and of the learned counsel arguing the appeal, with the concept of forcible dispossession appears to provide the background for this legal battle. The expression forcible dispossession is not used in the law requiring interpreta--tion.
The relevant portion of section 9 is reproduced hereunder "If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by a suit recover possession thereof notwithstanding any other title that may be set up in such suit."
This provision of law has four ingredients. Firstly, the person suing must have been dispossessed.
Secondly, such dispossession must be of immovable property. Thirdly, the dispossession should be without his consent. Fourthly, dispossession should be otherwise than in due course of law. The two requirements, which are contested directly in this appeal and required determina--tion are the last two. Consent obtained by deceit, trick or artifice, as held by the Courts, concurrently is according to the learned counsel, consent nevertheless and when such a consent is not lacking, the handing over of the possession cannot be said to tae otherwise than in "due course of law".
7. In Black's Law Dictionary (Revised Fourth Edition) . . . Consent has been defined as follows "It supposes a physical power to act, a moral power of acting and a serious, determined and free use of these powers. It is an act included by fraud duress, or sometimes even mistake."
In Osborn on .The Concise Law Dictionary the same word has been defined as "Acquiescence, agreement. It is inoperative if obtained by fraud."
In Cochran, Law Lexicon it is defined as : "Agreement, the meeting of the minds. It presupposes mental capacity to act. It may be express, by word of mouth, or in writing or implied, from acts, inaction or silence, which are consistent only with assent. If obtained by fraud or duress it is not binding."
As regards fraud, its meaning, scope and effect three references should suffice.
The Chambers Twentieth Century Dictionary defines fraud as act or course of deception deliberately practiced, with a view to gaining a wrong or unfair advantage, deceit, trick, and artifice by which right or interest of another is injured.
In American Jurisprudence II (Vol. 37) the following observations are made with regard to exact connotation of fraud ; "The furtility of man's invention in devising new schemes of fraud is so great that Courts have always declined to define it, reserving to them selves the liberty to deal with in whatever form it may present itself. It is indeed said that it is better not to define the term lest craft of men should find ways of committing fraud 'which might evade such a definition.
As regards the effect of fraud the following remark in the same volume is relevant "As a broad general rule, everyone who engages in a fraudulent scheme forfeits all rights to protections either at law or in equity. No one will be permitted in a Court of justice to take advantage of or claim protection by reason of his own fraud or that of his agent or brother---.
Fraud of all kinds is abhorrent to the law, and it is a general principle that if any one person sustains injury through the fraud of another, in any form, the Courts have jurisdiction to afford a proper remedy."
The definition of "consent" or "free consent" in the Contract Act or for the purposes of Penal Code is equally unhelpful to the appellant. For example in the Contract Act consent has been defined in section 13 as: "Two or more persons are said to consent when they agree upon the same thing in the same sense."
It is this definition, which applies to provisions of Specific Relief Act under the residuary clause of section 3 of Specific Relief Act which is as follows: "and all words occurring in this Act, which are defined in the Contract Act, 1872, shall be deemed to have the meanings respectively assigned to them by that Act."
The appellant does not satisfy this test. The definition of free consent as defined in section 14 of Contract Act indicates further qualitative restric--tions, more elaborately dealt with in the other sections in that Act.
In the Penal Code though consent as such has not been defined but what is not consent has been described in section 90 of the P. P. C. In a manner to bring out the necessary element of consent.
The consent pleaded by the appellant does not qualify as consent even under the Penal Code.
8. Be it the ordinary dictionary meaning of consent, or its special meaning as contained in Contract Act or as ascertainable from Penal Code, the consent obtained, without the element of force or duress, but by deceit, trick or misrepresentation, deliberately practised is no consent in the eye of law for the purposes of section 9 of the Specific Relief Act. On account of the same taint, not only the possession obtained by the appellants was without the consent of the plaintiff respondent, it was also otherwise than in accordance with law. Hence, the appeal is without merit and is dismissed with costs.