' These are three Revision Applications arising out of common judgment given by the learned VI Additional District Judge, Karachi on 20th March, 1974 whereby while dismissing the Appeals Nos.
115 of 1973, 116 of 1973 and 117 of 1973 the learned lower appellate Court allowed each of the three respondents/plaintiffs opportunity to amend their respective plaints by adding in prayer clause the relief of possession, assess the said new relief and pay ad valoram court-fees thereon, which was allowed to be done within a fortnight in the trial Court. The learned appellate Court further directed that upon payment of court-fees on the properly assessed relief of possession, the respondents shall also be entitled to a decree of possession over the roof of their shops. I. Before I proceed to examine the facts of the cases it may be stated that the three Respondents namely (1) Asghar Ali,
(2) Jan Mohammad and (3) Abbas Ali filed the following three Civil Suits which were tried and disposed of by the Court of XX Civil Judge, 3rd Class at Karachi.
(1) Suit No, 261 of 1966 Jan Mohammad v. Usman Haji Wali Mohammad,
(2) Suit No, 252 of 1966, Abbas Ali v. Usman Haji Wali Mohammad, and
(3) Suit No, 253 of 1966, Asghar Al; v. Usman Haji Wali Mohammad.
' As common questions of facts and law arose in the above-mentioned three suits the same were by consent of the parties consolidated and evidence was recorded in Suit No, 252 of 1966 as the leading suit, and all the said suits were disposed of by a common Judgment.
' By consent of the counsel for the partiese these three Revision Applications have also been heard together and disposed of by this judgment.
2. The brief facts of the three cases are that the building situated on plot No, R.C. 12/5/8-IV-A/374 consisted of five tenements numbers as G/1 to G/5. Each tenement being independent and in occupation of different persons was transferred to its respective occupant (including plaintiffs as well as the defendant). Out of the 5 tenements G/1, G/4 and G/2 were transferred to (1) Jan Mohammad (respondent in R. A. 106 of 1974). (2) Abbas Ali (respondent in R.A. 107 of 1974) and (3)
Asghar Ali (respondent in R.A. 105 of 1974), respectively, while tenement G/5 in possession of the applicant was transferred to him.
3. The plaintiffs/respondents claiming to be in possession and use of the roofs of their respective tenements applied to the Deputy Settlement Commissioner for approval of the plans for raising constructions over the same. The Deputy Settlement Commissioner approved the raising of constructions as per plans submitted by the plaintiffs. The plaintiffs also got the plans of the proposed constructions over the roofs approved from the K.D.A.
4. On the pleas that the applicant/defendant, in possession of tenement No, G/5, was illegally trying to the possession and obstruct the peaceful enjoyment of the roofs of tenements Nos. G/1, G/2 and G/4 which according to the plaintiffs in the three suits, were in their continuous undisputed possession and apprehending that the defendant might obstruct construction by the plaintiffs on the roofs of the tenements transferred to them and finding that the defendant had already pulled down small dividing column between the roofs of G/1 and G/5 and other tenements, and had tried to store some building material on the roof, the plaintiffs filed the above-mentioned three suits against the defendant.
' The three plaintiffs valuing each of their suits for the purposes of court-fee and jurisdiction at Rs, 200 claimed reliefs against the defendant for permanent injunction restraining the defendant from forcibly occupying or taking possession or obstructing or creating hinderances in any manner in the peaceful and quiet enjoyment and use by the plaintiffs of the roofs of their respective shops No, R. A. 12/5/8-IV-A/372, G/1, G/2 and G/4.
5. The above suits were contested by the applicant on various grounds. Upon the pleadings of the parties the following issues were framed :-
(1) Whether the suit is bad in law, not maintainable and is liable to be dismissed ?
(2) Whether the suit is bad in law for non-joinder of the Evacuee Trust Property Board, Karachi, or divisional Evacuee Trust Committee or the Settlement Authority ?
(3) Whether the suit is bad in law for non-payment of proper court-fees on the plaint ? If so, what is its effect ?
(4) Whether any cause of action has accrued to the plaintiff ?
(5) Whether the property bearing Nos. 12/5/8 and 12/5/9 and 1/I is declared Evacuee Trust Property ? If so, what is its effect ?
(6) Whether the defendant has been in lawful exclusive possession of the premises 1/1 as a tenant of Evacuee Trust Board ? If so, what is its effect ?
(7) To what reliefs are the parties entitled ?
(8) Whether the tenement in question has been transferred to the plaintiff by the Settlement Department and the plan for construction on roof thereof has been approved by the authority concerned ?
(9) Whether the defendant is in peaceful possession ? If yes, whether the plaintiff is entitled to disturb it ?
6. At the trial upon the evidence produced and hearing the advocates for the parties, Issues No, 1 to 3 and 5 were answered in the negative while Issues Nos. 4 and 8 were answered in the affirmative.
' As regards the Issues Nos. 6 and 9, though the same were answered in the affirmative yet it was held that the possession of the defendant was illegal. On the findings recorded on the issues in the suits the learned trial Court held, as follows :- "The overall result of the above findings is that the plaintiffs are entitled to the permanent injunction claimed by them in respect of their respective tenements and the suits are therefore decreed as prayed. The defendant will bear the costs of the plaintiffs in each suit."
7. Against the judgment given in the three suits, the applicant/ defendant filed Civil Appeals Nos.
115, 116 and 117 of 1973 which were heard and disposed of by VI Additional District Judge at Karachi who while maintaining the findings of the learned trial Court that the entire building was single storied consisting of 5 tenements, and no tenement existed on the first floor that the defendant would have no concern whatsoever with the roofs of tenements Nos. G/1, G/2 and G/4 which belong to the plaintiffs observed :- "I am of the considered view that the so-called tenement No, 1/1 had no legal or physical existence and it had no separate and distinct entity whatever. The roof of all the tenements G/1 to G/5 were open and were free from any type of consideration."
' The learned Lower appellate Court further held :- "The next contention raised by the learned counsel for the appellant relates to the possession of the open terrace. According to him, the appellant was in exclusive and peaceful possession of the open terrace situated over G/1 to G/5. In order to establish the possession of the open terrace the appellant has relied upon the Custodian receipt and the rent receipts of the Evacuee Trust Department and the fact that the access to the open terrace was from within the tenement No, G/5 which is in possession of the appellant exclusively. On this point there is inspection note of the Civil Judge who had inspected the premises in presence of the parties which appears to indicate that there is no staircase from the shops of the respondents towards the roof of the shop from the godown No, G/5. The inspection note further says that there is no construction on the roof of the shops but some scrap articles were lying there. The respondents do not deny that the access to the open terrace is from tenement No, G/5. The learned lower Court has recorded a finding as to the possession of the open terrace in favour of the appellant.
"From the evidence which is produced by the parties and from the fact that the only access to the open terrace is from the staircase from G/5 an inference can well be drawn that the open terrace including the roof over the shops of the respondents is in possession of the appellant."
' Having held as above the learned lower Appellate Court proceeded to examine the questions.
(1) Whether the plaintiffs/respondents who were not in possession of the open terrace above the shops would be entitled to claim permanent injunction simplicitor without adding a prayer for possession? And
(2) Whether in the circumstances these suits for permanent injunction simplicitor were competent or not."
' The learned lower Appellate Court first disposed of the question as to be ownership of the roof and held that the plaintiffs were transferee/owners of the roofs, above their respective shops.
' Having disposes of the question as to the ownership of roofs as stated above, the learned lower Appellate Court on the question raised above proceeded to hold that the plaintiffs be afforded opportunity to amend the plaint by adding a prayer for possession upon payment of ad valorem court-fee and grant the relief even though the plaintiffs had not specifically asked for it. Placing reliance upon the case reported in Keramat Ali v. Mohammad Younasand Ahmad Din v.
Mohammad Shafi and others, the learned Appellate Court held, as follows.
"Following the dictum laid down in the aforesaid autorities I am of the view that though the respondents have not claimed relief of possession yet they are entitled to it. Further it shall eliminate multiplicity of proceedings between the parties and numerous legal complications which may arise in the absence of grant of relief of possession to the respondents. Under these circumstances I shall afford an opportunity to the respondent to amend the plaint, assess the relief of the possession and pay ad valorem court-fee on that relief. They can do so within a fortnight in the lower Court. Upon payment of court-fee on the properly assessed relief of possession the respondents shall also be entitled to a decree of possession over the roof of their shops."1 2
8. Mr. Mohammad Ali Saeed the learned counsel for the applicant after having argued for some time conceded that the applicant does not dispute the ownership of the plaintiffs over the roofs of the tenements Nos. G/1, G/2 and G/4 transferred to them. He however submitted that the case of the defendant/applicant is that he is a tenant in occupation of the open roof. According to the learned counsel the procedure adopted by the learned Lower Appellate Court whereby the plaintiffs were granted opporunity to amend the plaint by adding the relief of possession and pay the ad valorem court-fee on that relief, is in according with the procedure and principle laid down by the Honourable Supreme Court of Pakistan in the case of Keramat Ali v. Mohammad Younas (PLD 1963 SC 191). He however submitted that A the learned First Appellate Court committed error of law and acted in excess of jurisdiction by giving the further direction that :- "Upon the payment of court-fee on the properly assessed relief of possession the respondent shall also be entitled to a decree of possession over roof of their shops."
' Mohammad Saeed, the learned counsel referred to the case of Keramat Ali wherein the Honourable Supreme Court while allowing amendment of the plaint by adding prayer for `Khas' possession and to pay additional court-fee as in a suit for possession, remanded the case to the trial Court for enabling the plaintiffs to make necessary amendment to the plaint and thereafter to dispose of the suit in accordance with the law. Having given the directions as above, the Honourable Supreme Court further proceeded to observe as follows :- "If the respondents wish to put in any additional written statement and to contest the suit on this question of possession alone they will also be at liberty to apply to the trial Court for permission to do so. Additional evidence on this issue alone may also be led, if the respondent seeks to challenge the right of the appellants to claim possession even on the date of the institution of the suit."
It was further argued by the learned counsel that the procedure adopted by the learned lower appellate Court whereby a decree for possession was to follow automatically against the defendant is against the recognized principle of procedure and is like to result in substantial miscarriage of justice an condemning the defendant without even giving him any opportunity to show cause or hearing.
' Mr. Mujtaba the learned Counsel for the respondents/plaintiffs argued that in view of the findings of the two Courts below there was nothing further which required any adjudication by the trial Court on amendment of the plaint by adding the relief for possession. However when pointed out the procedure directed to be adopted by the trial Court on remand in the case of Keramat Ali decided by the Honourable Supreme Court, the learned counsel for the respondents/plaintiffs was unable to say anything in support of the procedure adopted by the learned lower appellate Court.
I accordingly find no hesitation in concluding that the procedure adopted by the learned lower Appellate Court is against the principles and procedure directed to be adopted by the Honourable Supreme Court of Pakistan in the case of Keramat Ali.
9. The Revision Petitions were disposed of by short order passed on 26th April, 1982 which reads as follows :- "For the reasons to be recorded separately and agreeing with the direction of the learned 1st Appellate Court allowing the respondents to amend, the plaint, assess the relief of the possession and pay the ad valorem court-fee on that relief, but modifying the judgment to extent that instead of a decree of possession over the roof of shops would follow payment of court-fee on the properly assessed relief for possession, following the principle laid down in the case of Keramat All v.
Mohammad Younus (PLD 1963 SC 191), I hereby order the remand of the suit to the trial Court for disposal of the suit in accordance with the law in the light of the amendment of the plaint allowed by the learned 1st Appellate Court. I further direct that if the appellants wish to put in any additional written statement and to contest the suit on question of possession they will also be at liberty to apply to the trial court for permission to do so. Additional evidence on the issue of possession alone shall be allowed to be led if the appellants seek to challenge the right of the respondents to claim the possession.
' It is clarified at the request of Mohammad All Sayeed learned counsel for the appellant that it is the case of the appellant that he is the tenant of the open roof. It would be open to the appellant to raise this plea in defence to the relief claimed for possession by way of amendment, to put in additional written statement with the permission of the Court, if such amendment is sought.
' In the circumstances of the case there shall be no order as to costs."
10. The above are the reasons for the above-mentioned order.
The suits accordingly are remanded to the trial Court to he disposed o in the light of the directions given in the short order dated 26th April, 198 reproduced above.
' In the circumstances of the case there shall be no order as to costs. PLD 1963 SC 191 PLD 1971 SC 763