SOOMAR Versus Messrs NOOR CONFECTIONERY WORKS

This revision is directed against the judgment and decree dated 27-3-1975 passed by the learned VIth Additional District Judge at Karachi in Civil Appeal No. 288 of 1969.

2. The brief facts leading to the filing of the above revision are that the respondent filed Suit No. 323 of 1966 on 25-10-1966 in the Court of VIIIth Civil Judge First Class, at Karachi, on the averment that the applicant was a licensee of the suit house, which was terminated but in spite of that he failed to hand over the vacant possession of the suit house. In addition to the relief of the possession, mesne profit at the rate of Rs.60 p.m. was also claimed. The suit was resisted by the present applicant and inter alia it was pleaded that the house belonged to him and that he had obtained a loan of Rs.5,000 from the respondent while he was in service with them working as the Accountant, and out of which a sum of Rs.2,000 was paid by him. It was also averred that in connection with the above loan amount, the respondent had got certain documents executed from him. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:--

"(1) Is the defendant licensee of the plaintiff or his tenant in respect of the house in question? .

(2) Is the defendant owner of the premises?

(3) Has the licence been withdrawn and the plaintiff is entitled to eject the defendant and obtain vacant possession?

(4) Is the plaintiff entitled to mesne profits and damages for use and occupation charges at Rs.60 per month?

3. In support of the suit, the respondent examined P.W.1. Abdullah, brother, of one of the partners of the respondent firm; P.W.2 Hashim, the Accountant in the respondent, firm who succeeded the appellant; P.W.3 Yousuf Ali, one of the employees of M/s. Habib Bank Limited, who produced a cheque Exh.8 and specimen signatures of the applicant; P.W.4 Kassim Ali Khan, who was working with one Mr. Shahid Hussain, Notary Public to prove the attestation on Exh.P/1 declaration; P.W.5 Fakhruddm, who was allegedly conversant with the signature of the applicant and proved the signatures on Exhs. P/1, P/2, P/5, P/6 and P/8; and P.W.6 Abdul Qayum, who was working in K:E.S.C. who brought the file of electric connection and produced a letter dated 18-9-1957 Exh. P/11 whereby the applicant gave no objection to the change of the electric meter in the name of the respondent. Thc; learned trial Court after hearing the parties by its judgment/decree dated 7-10-1969 dismissed the suit. The respondent being aggrieved by the above judgment/decree filed the aforesaid Civil Appeal No. 288. of 1969, which was allowed by the learned Vlth Additional District Judge, Karachi by a judgment/decree dated 27-3-1975 decreeing the respondent's suit for possession and mesne profits. The applicant being aggrieved by the above .. appellate judgment and decree has filed the present revision.

4. In support of the above revision application Munawar Malik, learned counsel for the applicant, has urged as follows:--

(i) That factually the applicant was the owner of the house and he had only taken a loan of Rs.5,000 from the respondent, out of which he had paid a sum of Rs.2,000 and the balance of Rs.3,000 the applicant is willing to pay.

(ii) That Exhs.P/1, P/2 and other documents were not proved.

(iii) That factually as per Exh.P/10 the applicant was the tenant and, therefore, the suit could not have been filed on the basis of alleged licence.

On the other hand Mr. Z.UAhmed, learned counsel for the respondent, has submitted as follows:-

(i) That apart from ocular evidence there is ample documentary evidence to show that factually the applicant was merely a licensee of the house.

(ii) That the signatures of the applicant on the various documents produced by the respondent were proved in terms of section 73 of the Evidence Act.

(iii) That at no point of time the applicant pleaded that he was the tenant of the respondent but on the contrary his plea was that he was the owner of the house and, therefore, this plea is not available to the applicant at the revisional stage.

5. I have gone through the evidence on record. It appears that Exh.P/1 is the main document on which reliance has been placed by the respondent. It is a declaration on Rs.20 Non-judicial Stamp paper executed by the applicant on 26th September, 1957 admitting therein that he had constructed the suit house from the money belonging to the respondent and that he was residing therein as licensee. It was also admitted by him that he had no right or interest in the suit house and that the respondent was the owner of the suit house. The above document was attested by a Notary Public, Mr. Shahid Hussain and the applicant was identified by one Mohsin Ali, Advocate. The above document has been proved by the respondent inter alia by examining P.W.4.Kassim Ali Khan who used to work with Notary Public Mr. Shahid Hussain. Then we have Exh.P/2, which is a letter dated 26th September, 1957 written by the applicant to the respondent promising therein that he would vacate the suit house on 31-3-1959 and that he would pay mesne profit and/or compensation for wrongful occupation at the rate of Rs.5 per day. It appears that the respondent sent a legal notice dated 9th April, 1959 Exh.P/3 to the applicant through their Advocates M/s. Mohsin and Tahir, Advocates pointing out therein that the applicant had promised to vacate the suit house on or before 31-3-1959. The above letter was replied to by the applicant through his Advocate on 22nd April, 1959 Exh. P/5, in which it was averred that the respondent was in some serious trouble regarding Income-tax accounts about a year back and at that time the applicant was an employee of the respondent. It was also stated that in order to safeguard the position of the respondent, the respondent had got written some fake documents by the applicant and that he was also made to sign some blank stamp papers and that factually the house belonged to him. There seems to be an endorsement in Gujarati on this reply, which according to the respondent was a promise made by the applicant to vacate the suit house on 31-12-1959 but this endorsement has been denied by the applicant. However, the learned Appellate Court has accepted this endorsement as it was inter alia proved by P.W.1 Abdullah and P.W.5 Fakhruddin. There are some other documents on record but suffice to refer to the agreement of rent Exh.P/10, in which the applicant agreed to vacate the house on 1-1-1960 and in case of default of vacation he agreed to pay Rs.50 p.m. as rent. The applicant has been described as a tenant and not as a licensee in the above document. The applicant in his written statement, as pointed out hereinabove, had taken the plea first time that he had obtained loan of Rs.5,000 from the respondent, out of which a sum of Rs.2,000 was paid by him and that the respondent had dishonestly and by undue influence obtained documents from him. The above plea contained in para. 10 of the written statement appears to be in conflict with the plea raised by the applicant in his Advocate's above reply dated 22-4-1959 Exh.P/5. At no point of time the applicant relied upon the above Exh.P/10 as a tenant and even before the trial Court and the learned Appellate Court his plea was not that he was the tenant of the respondent. In this view of the matter, it will not be proper and just at this stage to allow the applicant to set up a new case after having litigated for nearly 20 years. It may be observed that if a party takes a plea which is quite contrary to his status as a tenant and after losing the case, he cannot be allowed to fall back on .the plea that he was the tenant.

6. The first Appellate Court being a Court of fact as well as on law has appraised the evidence and has arrived at a conclusion that the status of the applicant in relation to the suit house was merely a licensee. This conclusion is based on ocular and documentary evidence on record, and therefore, it cannot be interfered with in the exercise of revisional jurisdiction as there does not appear to be any irregularity as to the nature to warrant interference by this Court in exercise of revisional jurisdiction. ,

7. However, I am inclined to reduce the amount of the mesne profits keeping in view with the background of the instant case. I would, therefore, reduce the mesne profit from Rs.60 p.m. to RS.30 p.m.

8. With the above modification the judgment/decree of the Appellate Court is maintained. The revision is dismissed but there will be no order as to costs. I would also grant 4 months' time to the applicant to hand over the vacant possession.

S.O./S-214/K

Petition dismissed.