This revision is directed against the judgment and decree passed by learned IIIrd Senior Civil Judge, Larkana dated 2-3-1991 and judgment and decree dated 21-10-1991 by District Judge, Larkana in F.C. Suit No.58/1990 and Civil Appeal No:34 of 1991 respectively.
2. The brief facts leading to this revision are that respondent Mst. Rasheeda Bibi through her son Qamaruddin as her General Attorney has filed a suit against the present petitioners (defendants) stating therein that she is owner of Shop No.CS No.342, Ward 'B', Ratodero, District Larkana which was purchased through a registered sale-deed dated 29-4-1966 from one Hassan Akhtar Siddiqui for a consideration of Rs.10,000 and as such the mutation was also affected in the record. The petitioners (defendants) are brothers, they unauthorisedly and illegally occupied the said shop in June, 1990 and the same shop is being used as hotel. Treating the petitioners being the trespassers in the shop, she also prayed for possession of the shop in suit and the compensation of Rs.2,400 at the rate of Rs.600 per month with effect from June, 1990 up to September, 1990. The present petitioners (defendants) filed their written statements wherein they admitted her ownership but they denied to have occupied the said shop unauthorisedly and further claimed to be in possession of the said shop as tenant for the last 25 years and also claimed to have been paying the rent at the rate of Rs.250 per month. According to the petitioners (defendants) when the present respondent (plaintiff) refused to receive rent from June, 1990, they started sending the rent by money order which according to them was also refused. As such they moved application under section 10(3) of the Sindh Rented Premises Ordinance and deposited rent in the Court from June, 1990. The learned IIIrd Senior Civil Judge, Larkana framed the following issues:---
(1) Whether the defendants are in illegal possession of suit property and liable to be evicted through decree of Court?
(2) Is the plaintiff entitled to compensation as claimed? If yes, to what extent?
(3) Is the suit undervalued?
(4) What should the decree be?
3. On behalf of the respondent, Qamaruddin the son and her General Attorney, was examined who produced the General Power of Attorney and extract of the Property Card of the suit shop while the petitioners (defendants) examined themselves and one A.I Anwar Councillor, Municipal Committee, Ratodero. By judgment dated 2-3-1991, the learned Senior Civil Judge, Larkana decided issues Nos. l and 3 in favour of the plaintiff (respondent) alongwith Issue No.2 fixing the rate of compensation at Rs.300 per month from June, 1990. As such the learned Senior Civil Judge decreed the suit of the plaintiff (respondent).
4. I have heard Mr. Muhammad Bachal Tunio, Advocate for the petitioners and Mr. Abdul Qadir Sheikh, Advocate for the respondent.
The main contention of the learned counsel for the petitioners is that the plaintiff (respondent) has not examined herself but examined her Attorney and son namely Qamaruddin. He further argued that no criminal action' was taken against the petitioners (defendants) which is proof to show that they were not trespassers.
6. In support of his contention he has relied upon a case reported as Muhammad Sharif Khan v.
Mst. Ismat Bi and 4 others PLD 1982 SC (AJ&K) 76 in which it was held as under:--- " Ss.102 & 106---Burden of proof---Party personally knowing whole of circumstances of case failing to go into witness-box to dispel suspicion attaching to his case---Non-appearance of such party as a witness----Held, to be strongest possible circumstances going to discredit truth of his case."
He has also relied upon the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1959 (W.P.) Peshawar 81 and Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480 in which it was held as under:--- "Ss. 101 & 102--Onus of proof--Facts alleged must be proved. "
Another case relied upon by him is a case reported as Government of Pakistan v. Sardar Muhammad A.I PLD 1965 (W.P.) Kar. 1 in which it was held as under:-- "S.59 ---Oral evidence---Acceptable only if inspiring confidence--Mere fact that such evidence stands unrebutted--Not sufficient for accepting same to be true."
Similarly reliance was also placed on the case of Sudhangshu Bimal Biswas v. Md. Mustafa Chowdhury 1968 SCMR 213 in which it was held as under:--- "(b) Suit---Plaintiff must succeed on strength of his own and not on weakness of respondent's evidence."
7. He has further argued that there is no evidence to show that the shop in question was occupied in June, 1990. It was thus stressed that the Senior Civil Judge was not justified to fix compensation from June, 1990. According to him, the plaintiff's suit should have been dismissed with direction to file the ejectment proceedings.
8. On the other hand the learned counsel for the respondent has argued that these grounds were also taken before the Appellate Court as such they can not be agitated in Revision. According, to him, the grounds in the first appeal and in the revision are the same. It is a stereotyped Revision wherein the grounds of appeal have been incorporated once again. He has argued that section 115, C.P.C. Is very clear and the revision can only lie on the grounds mentioned in it. He has relied on case reported as S. Zafar Ahmed v. Abdul Khaliq PLD 1964 (W.P.) Karachi 149 in which it was held as under:--- "S. 115---Position with reference to revisional powers of High Court stated---Guiding rules of practice for exercise of such powers. The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision,--
(a) has exercised or assumed a jurisdiction not vested in it by law, or
(b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or
(c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or
(d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has given to one patty an advantage over the other which it would not have got but for the fact that that step was taken." .
He has also relied upon case of Ghulam Hussain and another v Muhammad Hussain 1986 CLC 770 in which it was held as under:- "S.115---Revisional jurisdiction---Exercise of---None of grounds mentioned in S.115, C.P.C. Attracted in case---Held: Scope of revisional jurisdiction being limited to grounds mentioned in S.115, no merit whatsoever to be found in petition in case."
9 He has further argued that the evidence of Attorney is as good as that of the maker. He has pointed out that in written statement the petitioners (defendants) have not stated that they were paying rent to Umeruddin and Mani Punjabi. He has also contended that the petitioners (defendants) have failed to examine Muhammad Siddique to whom they alleged that the shop in question was given to them by him and they were in occupation of the same shop for the last 25 years. He has further pointed out that in the written statement petitioners (defendants) have not uttered a single word that they have paid the rent of shop to one Umeruddin or Mani Punjabi. He has also pointed out that not a single receipt was produced by the petitioners (defendants) from Mani Punjabi, Umerudidin or Abdul Hamid, husband of the plaintiff (respondent). He has also argued that no money order receipt has been filed as claimed by the petitioners (defendants) that they have sent rent through money order. He has also argued that he has not uttered anything as to and in what capacity they were occupying the shop. He has also argued that according to him the petitioners (defendants) have paid the tax so also stated by A.I Anwar but not a single receipt of the tax has been filed.
10 I have heard the arguments of both the counsel and with their assistance have perused the record. Admittedly in revision only the legal points are to be discussed and not the factual aspects.
The factual side is already decided by the trial Court as well as by the Appellate Court and there are concurrent findings by the Courts below. The grounds agitated before this Court are the same which were urged at length before the Appellate Court. No legal flaw has been pointed out by the learned counsel for the petitioners (defendants). The perusal of the case file reveals that the petitioners (defendants) have been changing their version. Sometimes they have stated that they have been paying rent to one Siddique, the previous owner of the shop but neither any agreement nor any receipt issued by Muhammad Siddique nor Muhammad Siddique was produced to support that version. According to another version they were paying rent to Mani Punjabi and Umeruddin. I fail to understand in what capacity the rent was paid to Mani Punjabi and Umeruddin, particularly when neither rent receipts were filed nor Mani Punjabi or Umeruddin were examined to support this version. The petitioners (defendants) have failed to establish as to how they came in possession of the shop and who inducted them as tenant in the shop. I also fail to understand in what capacity Mani Punjabi and Umeruddin were accepting rent. Power of Attorney was also not challenged by the petitioners (defendants). Hence Senior Civil Judge was justified to decide Issue No.1 in affirmative which was upheld by the Appellate Court. So far as Issue No.2 is concerned, as per the version of the petitioners (defendants), they have been paying rent at the rate of Rs.250 per month for the last 25 years while the respondent (plaintiff) had claimed compensation at the rate of Rs.600 per month. The learned IIIrd Senior Civil Judge, after taking into consideration the evidence, has fixed the compensation at the rate of Rs.300 per month because the respondent (plaintiff) had failed to satisfy the Court and could not adduce evidence regarding prevailing rent in the area to the tune of Rs.600. Since the petitioners (defendants) have admitted paying rent at the rate of Rs.250 for the last 25 years, as such the IIIrd Senior Civil Judge was justified to enhance Rs.50 per month. Learned counsel for the petitioners (defendants) also failed to point out any illegality in the judgments of the two Courts below. I am of the view that in revisions finding of the fact cannot be looked into except the glaring illegality, if any.
11. Under these circumstances and foregoing reasons, I find no merit in the revision which stands dismissed with no order as to costs.