1. This Civil Revision is directed against the judgment and decree dated 31--1987 passed by the VII th Civil Judge, Karachi West whereby decreeing the suit d by the predecessor of the respondents namely late MA. Khan.
2. The facts leading to the filing of the above revision arc that the said M.A. Khan filed a suit for.
3. Recovery of possession under Section 9 of the Specific Relief Act. The case as set out in the plaint is that he took on rental basis an open space measuring about 15 x 15 square feet in between Habib Bank Ltd., Liaquatabad Branch and Rana Gasoline Service S.M. Taufique Road and facing main road by name S.M. Taufique Road. The monthly tent of the premises in suit was settled at Rs. 300 and apart from this he had paid Rs. 50,000 to the applicant No. 2 through her husband Ahga Khaliq Raza Khan. The said Malik M.A. Khan thereafter raised construction on the above-said premises at his own expenses and water connection was also obtained in the name of predecessor-in-interest of the respondents. It is the further case of the predecessor-in-interest of the' respondents that water taxes have been paid- by him to the K.M.C. The predecessor-in-interest also obtained electricity connection at the above-said premises at his own expenses. The predecessor-in- interest had been running poultry business at the premises in the name of Liaquatabad Poultry Farm until his dispossession from the premises. It is the further case of late M.A. Khan that in March 1982 the mother of the deceased plaintiff got seriously ill so also one of the daughter of deceased Malik M.A. Khan had got mentally sick with the result that the said Malik MA. Khan for sometime had to close his business but he continuously paid monthly rent to the applicant No. 2. After about lapse of period of five months the said M.A. Khan again intended to start his poultry business and for this he opened the above-named premises for the business purpose and before the start of business of poultry, the said M.A., Khan had made arrangement for white-wash etc. And that in the first week of September 1982 that is in between night of 5th and 6th September 1982 the locks of the said premises were broken by applicant No. 2 with the aid of her persons when the said M.A. 4 Khan went on the premises, he saw that his locks were removed by the applicant No. 2 and in this way applicant No. 2 trespassed into the premises of the said M.A. Khan without due process of law and was illegally dispossessed from the premises in suit. Thereafter he could not approach the police in time. It is the further case of the said M.A. Khan that it came into his knowledge that in some way the applicant No. 1 has also concern into the premises and that is why the applicant No. 1 has been made party. It is the further case of M.A. Khan that empty cages of birds are still lying inside the premises. Under these circumstances the suit was riled for restoration of possession. The applicants filed separate written statements. The applicants resisted the suit. The case of applicant No. 2 as set out in the written statement is that the suit is not maintainable under the law being time-barred. It is the further case of applicant No. 2 that after the death of M.A. Khan, surviving legal heirs arc not entitled to continue these proceedings. The case of the applicant No. 2 further is that the suit property belongs to applicant No. 1 who had temporarily allowed the applicant 2 to use the same as godown/store of Rana Gasoline Service as the applicant No. 2 looks after the affairs of Rana Gasoline Service. It is the further case of the applicant No. 2 that the deceased MA. Khan happened to be acquainted with the husband of applicant No. 2 and some time back he had approached the applicant 2 through lick husband to lend him a helping hand. It is the further case of applicant No. 2 that the deceased M.A. Khan claimed to have some experience of doing poultry business, as such out of sheer sympathy for him the applicant No. 2 decided to do the said business in the suit premises with the assistance of said MA. Khan as part-time Manager. It is the further case of applicant No. 2 that the said MA. Khan was thus managing the business on behalf of applicant No. 2. This arrangement continued for sometime but thereafter the said MA. Khan became irregular in the rendition of account and it came to the knowledge of the applicant 2 that the same M.A. Khan had started his own business at some other place and had also taken heavy credit from the market. Under these circumstances the applicant No. 2 decided to close the business. Accordingly the business was discontinued with mutual consent in the end of February 1982 and the said MA. Khan severing all connections with the applicant No. 2 went away.
4. It is the further case of the applicant No. 2 that the said MA. Khan has filed the suit with ulterior motive falsely. The applicant No. 2 denied that said MA. Khan was ever tenant of the applicant No.
2. It is the further case of the applicant No. 2 that she had no authority to let out the premises to any one; moreover the said MA. Khan had not paid any amount to the applicant No. 2 or to her husband nor he has raised any construction on the said premises. The water and electricity charges were paid by applicant No. 2 through the said MA. Khan. It is the further case of applicant No. 2 that the said MA. Khan appears to have manipulated the documents in his name with ulterior motives without the knowledge and permission of applicant No. 2. The applicant No. 2 has denied the various allegations made by the said MA. Khan in the plaint. It is the case of the applicant No. 2 that the applicant No. 1 is the owner of Rana Gasoline Service, and the suit property was/is the godown/store of Rana Gasoline Service.
5. On the pleadings of the parties, the trial Court framed the following issues:-- "(1) Whether the plaintiff is tenant and he has been ejected illegally by the defendant No. 1 within 6 months of the institution of this suit?
(2) Whether the possession of premises in suit be restored to plaintiff?
(3) Whether plaintiffs claim is false and he has no cause of action?
(4) What should the decree be?"
6. The trial Court vide judgment dated 31-10-1987 decreed the suit. It is against this judgment that the present revision applicant has been filed.
7. I have heard learned counsel for the parties and gone through the record of the case.
8. A preliminary objection has been raised on behalf of the respondents that this revision application is not maintainable. In support of his contention the learned counsel for the respondents placed reliance on the decisions reported in AIR 1934 Allahabad 541, AIR 1949 Nagpur 126. On the other hand Mr. Muhammad Zaki Ahmad learned counsel for applicant No. 2 relied on AIR 1953 Assam 159, AIR 1950 Peshawar 9 and AIR 1939 Rangoon 413.
9. The same view was expressed in the case of Rajai Singh and others v. Suraj Bali (AIR 1942 Oudh 179).
10. It was held in this case that an order or a decree passed under Section 9, Specific Relief Act, has not been made the subject of any appeal or review, and although the High Court is not precluded from interfering with such orders in revision under Section 115 CPC, such interference should be confined to cases of very exceptional nature.
11. Same view was expressed in the case of Abdul Bari v. Asrab A.I (AIR 1953 Assam 158).
12. PLD 1950 Peshawar 35), it was held that if a revision satisfies the conditions laid down in Section 115, CPL or Section 34, N.W.F.P. Courts Regulations, 1931, it cannot be rejected merely because another remedy is open to the aggrieved party by way of suit.
13. It is advantageous to reproduce Section 9 of Specific Relief Act which reads as under:-- "9. Suit by person dispossessed of immovable property.--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 suit recover possession thereof, notwithstanding any other title that may be set up in such suit.
14. Nothing in this section shall bar any person from suing to establish his, title to such property and to recover possession thereof.
15. No suit under this section shall be brought against the Central Government or any Provincial Government.
16. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree he allowed."
17. A perusal of concluding paragraph of Section 9, Specific Relief Act would show that no appeal lies from any order or decree passed in any suit instituted under this section. No review of any such order or decree is allowed. The remedy of revision under Section 115 CPC is conspicuous by its absence from this section. I am of the opinion that if the legislature intended to bar the remedy by way, of revision application, it should have specifically mentioned alongwith 'appeal and "review".
18. Its very absence shows that the legislature did not want to restrict the Court's power of supervision over the Courts trying suits under section 9, Specific Relief Act. Mr. Khalilur Rehman has not advanced any cogent reason as to why should a revision application be rejected, simply because I another remedy is open to the aggrieved party. .
19. The preponderance of authority is thus for the opinion that a revision i, competent and maintainable. In my opinion if a revision satisfies the conditions laid down in Section 115 CPC, it cannot be rejected merely because another remedy is open to the aggrieved party by way of suit.
20. Consequently I overrule the preliminary objection.
21. Mr. Muhammad Zaki Ahmed, the learned counsel contended that the trial Court misread the evidence on record.
22. On the other hand Mr. Khalilur Rehman learned counsel for the respondents submitted that the impugned judgment is in accord with the evidence.
23. The main ground urged by the learned counsel for the applicants was that the Court below entirely misunderstood the position of the applicant No.2 and omitted consideration of important points and evidence. In deciding the present case, the learned VII th Senior Civil Judge appears to have entirely misunderstood the position of late Malik MA. Khan. A perusal of Exhibit P/1 would show that the late Malik MA. Khan moved an application dated 8-1-1979 to the Assessor and Collector, K.M.C.
24. For change of entry. A perusal of letter dated 13-1-1979 would show that the record was changed and the change of entry was notified by the Assessor and Collector, K.M.C. By his letter dated 13-1- 1970 Ext. P/12). A perusal of bill for the year 1975-7G (Ext. P/15) would show that the premises in suit was in the name of Liaquatabad Poultry Farm. This entry was changed in the name of late Malik MA.
25. Khan on the bass of letter dated 13-1--979 (Ext. P/12).
26. I have perused electric bills (Exhs. P/2 to P/8). These bills pertain to May, July, August, September, October, November and December of 1981. These hills were issued in the name of late Malik MA.
27. Khan. Exh. P/9 is receipt issued by K.E.S.C. For Rs. 200 to late Malik MA. Khan. Exh. P/10 is a test report.
28. Exh. P/11 is the estimate issued by K.E.S.C. A perusal thereof would show that this estimate was issued in favour of Malik MA. Khan. Exh. P/32 is a letter dated 18--7-1978 addressed to General Manager, Telephones. This letter was issued by Muhammad Ahmad Khan for Rana Gasoline Service. Exh. P/33 is a letter dated 14-2-1975 issued by Assistant Health Officer, K.M.C. And addressed to Agha Abdul Khaliq. A perusal thereof would show that Agha Abdul Khaliq was sunning a poultry farm without any licence or permission from K.M.C. Khaliq Raza sent a letter dated 27-3-1975 (Exh. P/33) to Health Officer, K.M.C. Exh. P/37 is an application for electric connection. This form was signed by Khaliq Raza.
29. I am of the humble opinion that the learned Senior Civil Judge appears have entirely misunderstood the position of the late MA. Khan, to have snored the K.M.C. Record and K.E.S.C.
30. Record. It seems that both the learned counsel had relied on the record in support of their respective contentions. The warned Senior Civil Judge has failed to apply his mind to the distinction between possession in his own right and possession as a tenant. He has failed to consider whether Malik MA. Khan was a tenant or employee in respect of suit premises. These omissions and assumptions constitute, in my opinion, material irregularity within the terms bf Section 115, CPC and without expressing any opinion on the merits, I am satisfied that this suit was not properly tried and that a retrial is necessary.
31. I allow the civil revision set aside decree of the Senior Civil Judge, remand this suit to the Court of VII th Senior Civil Judge, Karachi for retrial. The parties are allowed to lead additional evidence in support of their respective cases. The record from K.M.C. And K.E.S.C. Be summoned so th4t the actual "position may be clarified.
32. Any proceedings in execution now pending shall go with the decree and are dismissed. Costs of this Court will be the costs in the cause.
33. M.Y.H./A-584/K