ABDUL WAHID MIRZA Versus VTH ADDITIONAL DISTRICT JUDGE (SOUTH), KARACHI

ORDER

AJMAL MIAN, C.J .‑‑This petition is directed against the judgment and decree passed by the learned XXXIst Civil Judge, Karachi, in Suit No.1040/77 on 5‑12‑1984 and the judgment dated 23‑4‑1988 passed by the learned VIth Additional District Judge, South, Karachi, in Civil Revision No.28/85.

2. The brief facts leading to the filing of the above petition are that respondent No.3 was in possession of Rooms Nos. 603 and 604 situated in Karachi Stock Exchange Building from which he was dispossessed by the petitioner. He filed the aforesaid suit under section 9 of the Specific Relief Act, hereinafter referred to as the Act, in which he impleaded the present petitioner as defendant No.l and the Karachi Stock Exchange (Guarantee) Ltd. as defendant No.2.

The above suit was resisted inasmuch as written statements were filed by both the defendants. The learned trial Court on the basis of the pleadings of the parties framed the following issues:‑---

"(1) Whether plaintiff has been in peaceful possession of the same premises and has been dispossessed by the defendants?

(2) Whether the plaintiff is entitled to recover possession?

(3) Whether the suit is barred under section 9 of S.P.R. Act and provision of Sind Rent Ordinance?

(4) Whether suit is under valued if so, whether proper court‑fee has been paid.

(5) If the answer of issue No.2 in affirmative? What is its effect?

(6) Whether the disputed premises were transferred to defendant No.l after formalities by defendant No.2 and whether defendant No.l is in continue physical possession since 1973?

(7) What should the decree?

3. In support of the suit, respondent No.3 examined himself as Exh.5 and also Lutufullah Shah, Mukhtar Ali Rehmani and Mohammad Aslam Qureshi as the witnesses as Exhs.6, 7 and 8 respectively; whereas, the petitioner examined himself and no other witness. Nor defendant No.2 examined any witness. The learned trial Court after hearing the learned counsel for the parties decreed the suit by the aforesaid judgment and decree dated 5‑12‑1984. Since no appeal is provided against a judgment and decree passed under section 9 of the Act, the petitioner filed the aforesaid Revision No.28 of 1985, which was declined by the learned VIth Additional District Judge, (South), Karachi by his aforesaid judgment dated 25‑4‑1988. The petitioner being aggrieved by the above two judgments has filed the present petition.

4. In support of the above petition, Mr. Raja Qureshi learned counsel for the petitioner has vehemently urged that the impugned judgment of the learned trial Court is without jurisdiction inasmuch as the suit under section 9 of the Act was not competent as according to defendant No.2 the petitioner was the licensee and under the terms of the licence he was not entitled to allow the use of the rooms to anybody. It has, therefore, been contended that on the basis of the above admitted facts no decree under section 9 of the Act could have been passed. We are unable to subscribe to the above submission as on the basis of the evidence on record the learned trial Court has concluded that respondent No.3/plaintiff was in possession of the two rooms for quite some time and he could not have been in possession without the consent of the present petitioner/defendant No.l. In a suit under section 9 of the Act the title to the property in dispute is not relevant nor the status of the parties. The main consideration A is as to whether the person who was in peaceful possession of a premises was deprived of the possession without recourse to law. If the respondent No.3 was in possession of the above rooms peacefully the petitioner could not have taken over the possession by force. In any case the above question was within the domain of the trial Court and, therefore, it cannot be said that the judgment is without lawful authority or without jurisdiction.

In our view, in Constitutional petition we cannot constitute ourselves as a Court of Appeal for the purpose of examining the above factual aspect when the same has already been adjudicated' upon by the two competent Courts below. The petition has no merits and, therefore, it is dismissed in limine.

M.B.A./A‑447/K Petition dismissed.