' I have heard this revision application at some length and, basically, it is Mr. Moinuddin Ahmed who has argued the case. The dispute between the parties pertains to Shop No,4 situated on the ground floor of the building on Plot No,MC-448, Green Town, Karachi. Such dispute was the subject-matter of Suit No,2432 of 1982 of the Court of Vth Senior Civil Judge, Karachi, filed by the respondent for seeking declaration, permanent injunction, possession and recovery of damages amounting to Rs,22,000. In that suit the case of the respondent-plaintiff was that he was tenant of the applicant- defendant in respect of the referred shop, that he was forcibly dispossessed by the landlord from such shop on 15-4-1982, that his goods and articles of merchandise were forcibly thrown out and that, as a result, he was entitled to be put back into possession as also to be compensated for damage sustained to the goods and articles. The applicant-defendant denied these allegations and maintained that on the very date viz. 15-4-1982 the respondent-plaintiff had handed over the disputed shop to him but then changed his mind and started claiming it back in the evening the same day. In evidence, on issues being framed, parties examined several witnesses. The burden of the evidence is that the respondent-plaintiff not only claimed possession in the civil proceedings, as indicated above, but also pursued criminal cases in respect of his alleged dispossession, as reflected in successive proceedings under sections 448, P.P.C. And 145, Cr.P.C. It was also out of the ordinary as to why a person would, in the morning, peaceably hand over possession of his premises to the landlord and, straightaway, that very evening, start disputing the same and, that too, in such a vociferous manner.
2. Be that as it may, the trial Court, on a wrong assumption of facts and law, treated the suit to be under section 9 of the Specific Relief Act, even though that provision was not quoted by the plaintiff let alone relied upon; and this came to pass in spite of several other claims having been conjoined in the suit, which, obviously, could not be the case, if the object and intention was to invoke section 9 of the Specific Relief Act, for a suit under that provision, normally, has to be limited to restoration of possession alone. The learned trial Court, therefore, proceeded to dismiss the suit on grounds which do not appear to be sound at all. An appeal was taken by the respondent-plaintiff and, on a thorough examination of evidence, the decree of dismissal at trial was reversed. No damages were, however, allowed.
' Mr. Moinuddin Ahmed, before me, initially emphasized that no appeal lay against a decree under section 9 of the Specific Relief Act, as precluded in that section itself. There can be no cavil about such a proposition of law simpliciter. It was, however, pointed out to the learned counsel that mere assumption on the part of a Court that a suit had been filed under section 9 of the Specific Relief Act would not of itself make the suit to be such and that an invocation of the kind has to be either expressly made by the plaintiff or should be deducible on a proper construction of the plaint. On either basis the suit, manifestly, did not fall under section 9, aforesaid. I have, in such context, examined the plaint and other assertions in the case. It was never the averment of the plaintiff that the suit fell under section 9 of the Specific Relief Act. Indeed, it could not be so at all because with the relief of possession the plaintiff had also advanced prayers for declaration, permanent injunction and compensation. In a suit under section 9, as adverted to above, apart from seeking possession, on being dispossessed, a plaintiff, save in rare cases, cannot couple any other relief.
The suit not falling under section 9 of the Specific Relief Act, appeal from the decree was fully competent.
3. The next point urged for the applicant-landlord is that the suit was barred under Order 2, Rule 2, C.P.C. As the plaintiff-respondent had filed an earlier suit bearing No,1595 of 1982 in which he did not raise any such pleas, causes or claims, as he subsequently did in Suit No,2432 of 1982 from which this revision has sprung up. In this context, I asked Mr. Moinuddin Ahmed as to whether such defence was taken in the written statement in answer to which I was referred to paras 2 and 15 of the written statement filed by the applicant-defendant. However, when issues were framed the only relevant issue on the subject was one of a general description pertaining to the maintainability of the suit. Even so, neither the trial nor the appellate Court seems to have been called upon to examine the question of the bar, as to the purportedly relinquished causes of action or reliefs under Order 2, Rule 2, C.P.C., though some passing references are to be found in either of these judgments, concerning the earlier suit bearing No,1595 of 1982. In spite of this, I would myself have been inclined to undertake a comparative examination of the plaint in the earlier suit, if it was filed during the proceedings in the Courts below. The learned counsel was unable to show from the record that such plaint in the alleged earlier suit was filed at all. I am afraid in the absence of production of the plaint in the earlier suit, there can be no plausible way for a Court to adjudicate upon a plea of bar under Order 2, Rule 2, C.P.C. On the basis of the alleged institution of an earlier suit touching the same controversy. Even so, the record of the case reflects the disposal of Suit No,1595 of 1982 and that disposal was made on the basis of a statement brought on the record, which incorporated an admission on the part of the applicant-defendant that he had neither dispossessed nor had any intention of dispossessing the present plaintiff-respondent from Shop No,3 of the same building, apparently the subject-matter of that suit, and on admission the proceedings in Suit No,1595 of 1982 were disposed of. This order of disposal, resting on the referred statement, would indicate that the alleged previous suit pertained to quite another shop in the possession of the plaintiff-respondent and that any proceedings pertaining to that shop did not in any waypre-empt the present suit bearing No,2432 of 1982 which involved another distinct entity viz. Shop bearing No,4. Even according to the stand taken by the applicant-defendant in this suit such two shops had been dealt with differently by himself in that he took over possession of Shop No,4 independently of Shop No,3 from the respondent-plaintiff.
4. Then it was contended that suit of a tenant dispossessed by his landlord can only be under section 9 of the Specific Relief Act and not under section 8 of the Act. It would be of relevance to reproduce here the provisions in these two sections:-- "8. Recovery of specific immovable property.---A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure.
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.
' Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
' No suit under this section shall be brought against the Central Government or any Provincial Government.
' 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 be allowed."
' To elaborate the argument relevant to the quoted. Sections 8 and 9, it is urged that where a person is not the owner of property and seeks to be put back into possession solely on the ground of having been in possession and unlawfully dispossessed within a period of six months prior to the institution of the suit, the remedy lies only under section 9 of the Specific Relief Act and section 8 of that Act cannot be invoked because a suit under the last mentioned provision can be instituted only by those entitled to property. It is no doubt correct that in a suit falling under section 9 of the Specific Relief Act title is not material and any person who has been dispossessed, otherwise than in due course of law, can, without pleading or proving title, seek to be reinducted into possession even though such a relief is sought against the true owner of the property himself. However, except where superior rights are not involved at all, e.g. Proceedings between previous and subsequent trespassers, this rule itself has been applied only for restoration of what is known as settled possession, which implies possession obtained from a lawful source such as that from an owner or a lessee or a tenant. Further, possession of a servant or of a deputy or an appointee for the benefit and on behalf of the master or the person deputing or appointing is really the possession of the latter, not amenable to be sued by the former under section 9 of the Act. Similar is the case with licensees and care-takers. Reference on the subject may be made to Sobha v. Ram Phal AIR 1957 All. 394, Azam Khan v. The State of Pakistan and another PLD 1957 Kar. 892, Siddiq Ahmed v. Estate Officer and another PLD 1957 Kar. 887, Riaz and another v. Razi Muhammad PLD 1979 Kar. 227 and Supercon Ltd. v. Eastern Construction Ltd. 1987 CLC 1566. It follows that the remedy even under section 9 ibid does not extend to a dispossessed licensee against his licensor or even to lessees, where there is also a relationship of matter and servant between the lessor and the lessee, to which the lease is incidental or relatable. Such rule, obviously, does not also apply to trespassers against C superior title. Short of persons falling in these categories a person, lawfully in possession, can be dispossessed only in due course of law; but even the persons in the excluded category can only be dispossessed on the basis of superior title provided always that in such dispossession only minimal force is used.
5. Coming to section 8 of the Specific Relief Act, the key words employed in that provision are "a person entitled to the possession Thereupon, it arises that all such persons, as are entitled to possession of specific immovable property, can file proceedings for recovery of possession under that section. This would imply that a suit under section 8 for possession can be filed not only by a person who is a holder of title to property such as an owner, a mortgagor, a mortgagee, a trustee or a beneficiary in a trust but even by a person who is merely entitled to possession and in such class would obviously fall tenants or lessees, except those mentioned in the category excluded, as cognate to the concept of settled possession.
6. The position and status of tenants or lessees which, for long, was basically governed under the Transfer of Property Act or the law of Contracts etc. Has, during the post-World War era, on the promulgation of Rent Laws, been further secured or even enhanced in that a tenant or lessee in an Urban Area cannot be evicted except in accordance with the applicable Rent statute. Further, there is now, practically, left no notion in such leases of expiry by efflux of time, for, in due course, for, at the sole option of the tenant, what is termed as a statutory tenancy, from month to month, comes into being and such tenancy is heritable. Even where the tenant, under the applicable Rent Law, forfeits his right to remain in possession, the landlord/owner can evict him only in due course of law under the pertinent Rent legislation. Some, though not all or identical, protections, are also available to agricultural tenancies. Thus, a tenant or lessee, being under current dispensation, entitled to possession, within the meanings of section 8 of the Specific Act, 1877, a suit would clearly lie by him to be put back, into possession or even to be inducted into possession, provided always that there is a subsisting right for so doing. Such a suit, in case of unlawful dispossession by a landlord/owner, would also lie against the latter. There may have been some scope for argument, before the introduction of the Rent Laws, that under section 8 of the Specific Relief Act possession could not be sought against a person having a superior title. Such was only a rule based on judicial precedents, because words similar or corresponding to "notwithstanding any other title" in section 9 ibid. Were found conspicuously missing in section 8 of the Specific Relief Act. Still, on such construction as well, preponderance of view has been that a suit may be filed, beyond six months of dispossession, by one who is dispossessed, irrespective of title but such remedy, clearly under section 8 of the Act, would be against trespasser(s) alone. Indeed, if I may say so with all respect, section 8 of the Specific Relief Act does not at all contemplate absolute title but only title to possession and that can be far short of absolute title. Such a positive provision, effective and enforcible in itself, cannot be unduly controlled by a precautionary phrase in another provision (viz. Section 9) calculated to provide speedy remedy to people once in bare possession, in many a case without any title to possession at all. Here, though, it has to be kept in mind that while title to property is not in contemplation in section 8 of the Specific Relief Act but bare title to possession or possessory title is; if, therefore, in a suit for possession under that provision the plaintiff's claim is pitched against a superior title to possess, enforcible simultaneously, plaintiff's right must give way to such a superior and concurrently enforcible title to possess. This alone would be the effect of sections 8 and 9 of the Act read together. Such, however, cannot be the case where a forcibly or improperly dispossessed tenant sues his landlord, who does not have a mature immediate right to re-enter possession.
7. If, however, restrictive interpretation of section 8 of the Specific Relief Act has a nexus with that part of the section, which provides that a person entitled to possession "may recover it in the manner prescribed by the Code of Civil Procedure, then too such a result cannot be achieved (underlinings are added for emphasis). The word "manner", in the section refers only to the procedure in the Code and does not control the nature of the suit. Such procedure includes the procedure in the suit as well as that applicable on execution because the word "manner" is controlled by the word recover. The form of decree may or may not be that envisaged in Order 20, Rule 12, C.P.C. For a wide category of suits are in contemplation in section 9 of the Code of Civil Procedure itself. Even if section 8 of the Specific Relief Act did not subsist on the statute book, any person entitled to possession could seek such possession under section 9 of the Code itself. That remedy does not seem to be either expressly or impliedly barred in virtue of section 8 of the Specific Relief Act, which, if anything, only adds to what is otherwise provided in section 9 of the Code of Civil Procedure, 1908, or in its precursor statute, that occupied the field when the Specific Relief Act, 1877, came to be promulgated. Thus, at any event, in the context of at least (subsisting)
Urban tenancies, which are what is involved here, the rule of defence of superior title would no longer be applicable in the altered situation resulting upon the introduction of Rent Laws currently in force in the Urban Areas of Pakistan.
8. In the ultimate analysis, it was somewhat faintly urged that a suit under section 9 is based on dispossession whereas a suit under section 8 is for being put into possession and further that these two provisions in the Specific. Relief Act are mutually exclusive. Reliance was placed on Lachman v.
Shamshsu Narain ILR 33 All.
174. I am afraid even this distinction, if any; is of no help to the applicant in this case. Obviously, these two provisions are mutually exclusive in the sense that if a person opts under one to secure relief he ought not simultaneously, agitate the controversy under the other provision, though there is authority that if he does the two actions must proceed independently and cannot be consolidated. However, as observed by the Supreme Court of India in Nair Service Society v. K.C.
Alexander AIR 1968 SC 1165, the provisions in sections 8 and 9 are not mutually exclusive in the way opined in Re Lachman ibid., for section 8 does not limit the kinds of suit but only lays down that after the expiry of six months the procedure laid down in the Code of Civil Procedure should be followed. In that case it was also opined that a mere possessory suit by a prior trespasser against a later trespasser did lie, after the expiry of six months, under section 8 of the Specific Relief Act.
Another observation in the case was that where, however, title came in contest the plaintiff must show better title or fail. With respect, as to this last, I would venture to say that such observation should, where relevant, be limited to better possessory title alone and not to absolute title, unless the two subsist together.
9. Here, it falls also to be observed that, in so far as the concepts of possession and dispossession, respectively under sections 8 and 9 of the Specific Relief Act are concerned, merely because section 9 expressly deals with persons, who are dispossessed that circumstance in itself does not preclude dispossessed persons, otherwise entitled to seek relief under section 8, from doing so, because "recovery (to recover meaning to attain, to regain) of possession can be sought not only by those, who have never been inducted into possession but also by those who have been dispossessed, the only criteria in section 8 of the Specific Relief Act being that the person claiming should be entitled to possession. This qualification the respondent-plaintiff eminently fulfilled.
Indeed, section 9 only envisages a speedy remedy for those, who, on being dispossessed, otherwise than in due course of law, seek prompt relief, within six months of dispossession, and in such context superior title alone is no defence. Further, while under section 8 of the Specific Relief Act title to possession is a necessary qualification for Seeking possession, mere unlawful dispossession, wanting in holder's consent, furnishes cause of action under section 9 of that Act.
In these circumstances, I see no merit in this revision application and dismiss it. Since, however, the litigation has taken no less than 8 years, the respondent-plaintiff having been dispossessed in April, 1982, it needs hardly be emphasized that, as and when he applies for execution, expeditious steps would be taken to execute the decree, all the more so as no damages have been granted to him.
' Order accordingly.