GHULAM RASOOL Versus MUHAMMAD WARIS BISMAL

AJMAL MIAN, J. ‑‑‑This is an appeal, with the leave of this Court, against the judgment dated 4‑4‑1990 passed by a learned Single Judge of the High Court of Sindh in Civil Revision Application No. 251 of 1987 filed by the appellant against the judgment/decree dated 8‑9‑1987 passed by the learned III Additional District Judge, Karachi (East) in Civil Appeal No. 207 of 1985 filed by the respondent allowing the same by setting aside the judgment and decree of the learned V Sr. Civil Judge at Karachi (whereby the respondent's above suit inter alia for possession was dismissed), decreeing the suit, declining the above Revision Application.

2. Leave to appeal was granted to consider the questions, whether section 9 of the Specific Relief Act, hereinafter referred to as `the Act', and Order III, Rule 2, C.P.C. were attracted to and whether there was any mis‑reading of the evidence.

3. The brief facts are, that the respondent was a tenant of the appellant in respect of shops Nos. 3 and 4, situated on the ground floor of Plot No. MC‑488 in Green Town, Karachi. The respondent filed aforesaid suit for declaration, permanent injunction, possession and the recovery of damages against the appellant on the basis of inter alia averments that on 15‑4‑1982 at about 8‑30 p.m. the appellant encircled the respondent's shop No. 4, hereinafter referred to as `the shop', alongwith a number of his companions and dispossessed him therefrom by show of force without having adopted any legal recourse therefor, by throwing the articles, mentioned in para. 7 of the plaint, on the street. It was also pleaded that the respondent had informed the Ilaqa Police about the above illegality having been committed by the appellant but unfortunately nothing was done by it except the registration of a case against the appellant under section 488, P.P.C. It was further pleaded that thereafter, the respondent initiated proceedings under section 145, Cr.P.C. in the Court of S.D.M., Malir.

4. The above suit was resisted by the appellant. It was inter alia pleaded that the suit was barred by sections 42 and 54 of the Act and by Order II, Rule 2, C.P.C. read with section 11, C.P.C., and that the Court had no pecuniary jurisdiction as the value of the shop was Rs.80,000. It was denied that the appellant had dispossessed the respondent forcibly. It was pleaded that the respondent had put the appellant in possession of the shop at 8‑30'a.m. on 15‑4‑1985 'at his own but he changed his mind at the behest of the other shopkeepers, as they told him that he could have Pugree of Rs.15,000 and, therefore, he demanded the possession of the shop. It was also pleaded that the respondent filed a frivolous case under section 448, P.P.C., which was pending trial.

5. On the basis of the pleadings of the parties, following five Issues were framed:

"(1) Whether the suits as framed and filed is maintainable in law?

(2) Whether the plaintiff is tenant of the defendant in respect of shops Nos. 3 and 4 situated in building bearing No. MC 488, Green Town, Karachi at a monthly rent of Rs.375?

(3) Whether the plaintiff was dispossessed by the defendant from shop bearing No. 4 illegally by taking law in his hand?

(4) Whether plaintiff has sustained damages to the extent of Rs.22,000, if so what is its effect?

(5) What should the decree be?"

In support of the suit, the respondent examined as many as five witnesses including himself, whereas, the appellant examined himself as D.W.1 and one Bashir Ahmad as D.W.2.

6. After hearing the learned counsel for the parties, the learned trial Court recorded its finding on Issue No. 1 in the affirmative, whereas, upon issues Nos. 2 and 3 it was held that respondent handed over the possession of the shop to the appellant at his own. As regards Issue No. 4, it was concluded that the respondent failed to prove the quantum of damages. On the basis of the above findings, the suit was dismissed under Issue No. 5.

7. Against the above judgment and decree of the trial Court, the respondent filed aforesaid Civil Appeal No. 207 of 1985, which was allowed by the aforesaid judgment/decree dated 8‑9‑1987. The learned Appellate Court, after re‑appraisal of the evidence, concluded as follows:

"From the above evidence it is indicated that the possession of the shop premises was not handed over to the defendant by the plaintiff in presence of D.W. 2 as alleged by the respondent. Admittedly the appellant was tenant of the respondent in respect of two shops i.e. Nos. 3 and 4 and since he has been dispossessed from the disputed premises illegally, he is entitled to recover the possession of it. With regard to issue of damages, the appellant in para. 6 of the memo. of appeal has stated that the articles which were mentioned in the inventory were handed over to him. He has not examined any witness to prove that he had sustained damages of Rs.22,b00 on account of stealing goods because of throwing out of the shop by the respondent. As such the trial Court had rightly held that the plaintiff has not proved the Issue No. 4."

Accordingly, it decreed the suit.

8. Thereupon, the appellant filed the aforesaid Revision Application, which was dismissed by the learned Judge in Chambers, through the impugned judgment inter alia for the following reasons:

"'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 section 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."

9. Against the above judgment of the learned Judge in Chambers, the appellant filed a petition for leave to appeal, which was granted to consider the above questions.

10. In support of the above appeal, Mr. Ali Akbar, learned counsel for the appellant, has vehemently contended as follows:

(i) That the suit was barred by Order II, Rule 2, C.P.C. inasmuch as in an earlier suit, namely, suit No. 1595 of 1982, the respondent did not claim any of the reliefs, which was subject‑matter of the present suit.

(ii) That the learned Appellate Court was not justified, on the basis of the material on record, to reverse the finding of the trial Court, and that the learned Judge in Chambers failed to exercise jurisdiction to rectify the above error of law.

11. The respondent appeared in person and opposed the above appeal.

12. Adverting to the above first submission of Mr. Ali Akbar that the suit was barred by Order II, Rule 2, C.P.C. inasmuch as in an earlier suit, namely Suit No. 1595 of 1982, the respondent did not claim any of the reliefs, which was subject‑matter of the present suit, it may be observed that a perusal of the plaint of Suit No. 1595/1982 which was filed on 18‑4‑1982), indicates that it was a suit for ,permanent injunction on the basis of the averment that the respondent was apprehending that he might be dispossessed from shop No. 3 forcibly, as he was dispossessed from shop No. 4 on 15‑4‑1982 at 8‑30 p.m. It is, therefore, evident that the above earlier suit does not relate to the shop and, hence, the second suit relating to the shop was not barred by Order II, Rule 2, C.P.C. or by section 11 of the C.P.C.

As regards his second submission, that the learned Appellate Court was not justified, on the basis of the material on record, to, reverse the finding of the trial Court, and that the learned Judge in Chambers failed to exercise jurisdiction to rectify the above error of law, it may be stated that Mr. Ali Akbar has invited our attention to Exhs. 7 and 9. The former is a hand written notice sent by the appellant to the respondent indicating the arrears of rent and of electric charges. It was also stated in the above notice that respondent's electricity supply was stopped with effect from 7‑3‑1982 and that it would not be restored till be payment of the dues, whereas, the latter is an acknowledgment dated 7‑4‑1982 made by the appellant for having received Rs.1,925 besides having received Rs.1,200 as advance in respect of the shop. It has been urged by Mr. Ali Akbar, that the above acknowledgment (Exh. 9) refers to the issuance of rent receipt in future on receipt of rent in respect of Shop No. 4 alone and, therefore, from the above document, it is evident that one of the two shops was to be surrendered. According to him, the respondent, instead of surrendering shop No. 3, surrendered shop No. 4. The above contention seems to be devoid of any force. On the contrary, the above document negates the appellant's plea that the respondent had voluntarily handed over the vacant possession of the shop on 15‑4‑1982 at 8‑30 p.m. If the respondent was to vacate the shop, it would have been so stated in the above document. Mr. Ali Akbar was unable to give any cogent reason for the omission to mention the above important fact in the document executed by the appellant, if factually the above arrangement was agreed to by the respondent.

13. It was then contended by the learned counsel that the respondent, in his examination‑in‑chief, has deposed that the appellant did not issue any rent receipt but in the cross‑examination, he admitted the factum of having been given rent receipts by the appellant. According to him the above discrepancy makes the evidence of the respondent unreliable. The above contention is also untenable. The Appellate Court, after re‑appraisal of the evidence, concluded that the appellant's plea that the respondent had voluntarily handed over the possession of the shop to him, was not proved, which finding has been maintained by the learned Judge in Chambers inter alia for the reasons mentioned in the above‑quoted portion of the judgment.

It may be observed, that a tenant cannot be ejected by a landlord without having recourse to law. The appellant having admitted the status of the respondent as a tenant in respect of the shop, the burden was on him to show that the respondent had voluntarily handed over the possession of the shop to him, once the respondent having deposed on oath that he was forcibly dispossessed.

14. We are inclined to hold that the learned trial Court had not properly appreciated the evidence on record and, therefore, the learned Appellate Court was justified in interfering in appeal with the finding of the trial Court.

15. It was also contended by Mr. Ali Akbar that the criminal case filed by the respondent, failed because he was unable to prone his case. Suffice to observe that the finding of a criminal Court is not binding or even relevant for adjudicating a civil dispute before a Civil Court, which is to be decided on the basis of preponderance of evidence.

16. The upshot of the above discussion is that the appeal is dismissed with no order as to costs.

AA./G‑470/S Appeal dismissed.