MUHAMMAD RAFIQUE alias RAFIQUE AHMAD Versus ABDUL HAMEED
This matter arose from a petition for leave to appeal regarding a suit for possession under Section 9 of the Specific Relief Act 1877. The respondent initially filed a suit under Section 9 alleging illegal dispossession from a shop under an agreement to sell. The trial court dismissed the suit, but the District Court in revision under Section 115 of the Code of Civil Procedure 1908 decreed the suit. Meanwhile, the respondent had also instituted a separate suit for specific performance of the agreement to sell and recovery of possession based on title. The core legal question was whether a revision petition under Section 9 of the Specific Relief Act 1877 should be pursued or entertained when a full suit for specific performance and title-based possession is pending, and whether the revisionary judgment was without lawful authority. The Supreme Court granted interim relief by staying the execution of the revisionary decree to protect the petitioner's possession, noting the pendency of the suit for specific performance.
- Is a Constitutional petition maintainable against a revisionary decree passed under Section 9 of the Specific Relief Act 1877 when a suit for specific performance based on title is pending?
- Does the pendency of a suit for specific performance and recovery of possession based on title affect the propriety of granting relief in revision under Section 9 of the Specific Relief Act 1877?
- Section 9, Specific Relief Act 1877
- Section 115, Code of Civil Procedure 1908
ORDER
MUNIR A. SHEIKH, ACTG. C.J. ‑‑‑On the basis of agreement of sale dated 31‑5‑1967 allegedly executed by Nazir Ahmad, the transferee of the property, the respondent on 26‑3‑1975 filed a suit under section 9 of the Specific Relief Act for recovery of possession of the shop alleging that though the possession of the said shop had been delivered to him by the said vendor under the said agreement of sale but he was illegally dispossessed within six months from the date of filing of the said suit. It was contested by Nazir Ahmad and dismissed through judgment dated 5‑1‑1980 by the trial Court.
2. A revision petition was filed against this judgment by Nazir Ahmad in which the petitioners were impleaded as respondents they having alleged that subsequently Nazir Ahmad transferred 1/2 share in the shop to them through registered sale‑deed. The petitioner is the brother of Nazir Ahmad.
3. On the other hand, on 25‑9‑1980, the respondent Abdul Majeed filed suit for specific performance of the said agreement of sale in which a decree was also prayed for, for the delivery of possession of the property to him on the basis of title after the execution of sale‑deed, therefore, according, to learned counsel for the petitioner, there was no legal justification for pursuing the remedy in revision petition under section 9 of the Specific Relief Act, for it is provided in law that in a case, the plaintiff fails to get relief under section 9 of the Act, he was not debarred from filing suit on the basis of title and recovery of possession of the property and he having filed the said suit, interference made by the District Court under section 115. C.P.C. through judgment, dated 5‑1‑1980 by decreeing the suit was neither legally proper nor sustainable in law, therefore, Constitutional petition filed by the petitioner if viewed from this angle was maintainable as in that case, the judgment of the District Court in revision would be without lawful authority. It has been brought to our notice that the said suit for specific performance is still pending in which the present petitioner has also been impleaded as one of the defendants. Reliance has been placed on the judgment in the case of Late Mst. Majeedan through Legal Heirs and another v. Late Muhammad Naseem through Legal Heirs and another (2001 SCMR 345).
5. In the meantime, execution of decree, dated 25‑6‑1989 shall remain stayed in that possession of the petitioner over the shop in dispute shall not be disturbed.
Q.M.H./M.A.K./M‑378/S
Order accordingly.