Pakistan Case LawGHULAM RASOOL Versus MUHAMMAD WARIS BISMIL
This matter arises from a petition for leave to appeal filed against the judgment of the High Court of Sindh dismissing the landlord's civil revision, which had upheld the appellate court's decision partly allowing the tenant's suit for possession and damages. The tenant originally filed a suit for a declaration of tenancy and restoration of possession of a shop from which he claimed to have been forcibly dispossessed, along with damages. The trial court dismissed the suit, but the appellate court allowed the appeal regarding the recovery of possession, and the High Court dismissed the subsequent revision. The core legal questions involve whether the findings of the lower courts were concurrent, whether Section 9 of the Specific Relief Act and Order II Rule 2 of the Code of Civil Procedure were applicable or barred the suit, and whether evidence was misread by the lower forums. The Supreme Court granted leave to appeal to reappraise the evidence, holding that the contentions raised warranted a re-examination of the record. The key principle laid down is that leave to appeal will be granted to reappraise evidence where lower forums have given conflicting findings and allegedly misread the record on material issues.
- Whether a suit for possession and declaration of tenancy is barred under Order II Rule 2 of the Code of Civil Procedure 1908 when an earlier suit regarding a separate shop was filed between the same parties?
- Does Section 9 of the Specific Relief Act 1877 apply to a suit for recovery of possession following forcible dispossession?
- Can the Supreme Court grant leave to appeal to reappraise evidence in a civil matter where findings of the lower courts are non-concurrent and evidence is allegedly misread?
ORDER
SAJJAD ALI SHAH, J.---Respondent/tenant filed Suit No, 2432/82, in the Court of the Senior Civil Judge, Karachi, for declaration that he is tenant of shops Nos.3 and 4 owned by petitioner/landlord and had been forcibly disposed from shop No,4 on 15-4-1982 and his articles were thrown out on the street. Tenant as plaintiff in the suit, prayed that he may be declared tenant of shop No,4 and be handed over possession thereof and also claimed damages of Rs,22,000. In the written statement, stand was taken that tenant himself handed over possession of shop No,4 on 15-4-1982 and subsequently changed his mind on being exhorted by other tenants and demanded pugree and also filed criminal case under section 448, Cr.P.C. Pleas were also taken in the written statement that suit was not maintainable under sections 44 and 52 of the Specific Relief Act and under Order II, rule 2 and section 11 of C.P.C. It was mentioned in the written statement that plaintiff/tenant had already filed Suit No, 1595/82, seeking declaration in respect of tenancy of shop No,3 and on the statement of defendant/landlord, admitting claim of tenant, order was passed on 28-4-1982, that tenant will not be ejected from shop No,3 except in due course of law.
2.Keeping in view pleadings of the parties, as many as five issues were framed pertaining to the frame of suit, tenancy of shops Nos.3 and 4, dispossession from shop No,4 and damages of Rs,22,000 as claimed by the plaintiff. Evidence was recorded and ultimately suit was dismissed on merits. Tenant filed Civil Appeal No, 207/85, which was allowed vide judgment dated 8-9-1987, passed by IIIrd Additional District Judge, Karachi East, to the extent that appellant/tenant was dispossessed from shop No,4 and is entitled to recover possession thereof. Landlord filed Civil Revision No, 251/87 in the High Court of Sindh, which has been dismissed on merits.
3.Landlord, who is defendant in the suit, has filed petition for leave to appeal and it is submitted on his behalf firstly, that in the Courts below fmdings are not concurrent inasmuch as that suit was dismissed and appeal has been partly allowed and revision has been dismissed. Secondly, that revisional Court has dealt with in detail questions, whether section 9 of Specific Relief Act was attracted to the facts of the suit as wrongly assumed by the trial Court and, whether suit was barred under Order 11, Rule 2, C.P.C. For the reasons that plaintiff in the earlier Suit No, 1595/82, did not raise such pleas or made such claims as in the instant suit. In this context, it is further submitted that the revisional Court has not dealt with issues separately as framed in the suit. Thirdly, it is submitted that evidence on the record produced by the parties has been misread and in its light, findings have not been given by the revisional Court on all issues which were pressed, as is evident from memorandum of revision, which is on the record.
In the light of contentions raised and stated above, leave is granted to reappraise the evidence. Security Rs,2,000. Paper book may be prepared on the record available and it is open to the parties to include documents which are considered necessary. Interim stay granted earlier shall continue till the disposal of the appeal on the same terms and conditions.
Judges on this bench
- Sajjad Ali Shah1,895 judgments
- Naimuddin623 judgments