PLJ 2000 SC 1894
[Appellate Jurisdiction]
Present: rana bhagwandas and javed
iqbal, JJ.
Late Mst. MAJEEDAN (through her legal heirs) and another-Petitioners
versus
Late
MUHAMMAD NASEEM (through his legal
heirs) and
another-Respondents
Civil Petition No. 566-K of 1999, decided on 28.7.2000.
(On
appeal from the order of the High Court of Sindh, Karachi, dated 10.9.1999 passed in Civil Revision Application No. 1/99)
(i) Specific Relief
Act, 1877 (I of 1877)—
—S.
9~Restoration of possession-Suit for--In order to become entitled to relief under Section 9, plaintiff must prove that he was
in possession of
property; he has been dispossessed by defendant otherwise than in
due course of law and dispossession took place within 6 months of suit-No question
of title either of plaintiff or defendant can be raised or gone into in such cases-Such a relief can be granted even
against true owner of property
himself. [Pp. 1896 & 1897] A
1989 CLC 318 (DB);
198-7 DLR 8; 1985 CLC 2309; 1983 CLC 50"7; 1982 CLC 654; PLD 1970 Lah. 560; 18 DLR (DB); PLD 1969 Kar. 784;
AIR 1959 All 1 (DB); AIR 1956 Hyd.
170; AIR 1927 All. 669 (DB); AIR 1957 All. 394; PLD 1957 Kar. 892; PLD 1957
Kar. 887; PLD 1979 Kar. 227; 1987 CLC 1566 ref.
(ii)
Civil Procedure Code, 1908 (V of
1908)—
—-S.
115 read with Specific Relief Act, 1877, S. 9-Decree passed under Section 9 of Specific Relief Act-Revision petition
against-Compete cy--Challenge to-Interference in revision would be justified, if case could be disposed
of on an obvious misapprehension as to legal position or where there was some defect of jurisdiction-Except in
exceptional circumstances, no such interference would be justified
merely on ground that finding on question of
fact was not based on adequate evidence or was erroneous, otherwise it would be against spirit of Section 9 of
Specific Relief Act and in effect
would convert revision petition into an appeal, hich law expressly disallows. [Pp. 1898 & 1899] B & C
1983 PSC 158; PLD 1964 Pesh. 157; 16 DLR (WP) 164; PLD
1950 Pesh. 35; PLD 1952 Dacca 89;
PLD 1951 Dacca 140; 1991 MLD 1046; AIR 1953 Assam 158; 72 Mad. L.W. 361; AIR
1942 Oudh 179; AIR 1957 Hyd. 4; AIR 1949 Nag. 422;
AIR 1926 Mad. 290; AIR 1933 Mad. 609; AIR 1932 Oudh 39; AIR 1937 Oudh 183; AIR
1934 All. 541; 1989 CLC 219; 1989 CLC 219; AIR 1953
Date of hearing: 27.7.2000.
order
Javed Iqbal, J.--This petition for leave to appeal is directed against
the order of learned Single Judge in the High
Court of Sindh at Karachi dated 10.9.1999
dismissing Revision Petition Bearing No. 1/99 in limine.
2.
Briefly stated the
facts of the case are that respondents filed a suit on
8.5.1973 against the petitioners for recovery of possession of immovable property under Section 9 of the Specific Relief
Act, 1877 and possession of movable
property or compensation in sum of Rs. 10,000/- in lieu thereof. The respondents filed amended plaint on 24.1.1980
with the averment that Respondent
No. 1 was allotted a plot measuring 460
Sq. Yds in the Commercial Area
of Liaquatabad Karachi
by the Deputy
Refugee Commissioner Karachi vide Order No. 17-3/D.C.-53/8190
dated 17.4.1953 and physical
possession was delivered by the Refugee Welfare Officer Karachi. It is
further averred that Respondent No. 2 who is brother-in- aw of the Respondent No. 1 was allowed by him to
establish business in the said plot with the name and style of M/s.
Khursheed Electric Company and M/s. Associated
Traders. The petitioners dis-possessed the respondents from the said plot by use of force and on gun point. The
respondents consequently filed a suit
under Section 9 of the Specific Relief Act. he petitioners contested the suit by filing written statement and strenuously denied
the claim of respondents by raising
various legal and factual objections including that the plot in question
was allotted in their favour and Petitioner No. 1 is a lessee from K.M.C. who has not been impleaded as a party. It is further stated that the Refugee Welfare Officer allotted
this plot to etitioner No. 1 in 1955 and it was not allotted permanently in
favour of respondents and subsequent
allotment in favour of petitioners amounts to cancellation of allotment,
if any made earlier in favour of the respondents.
3.
After framing of
issues the parties led evidence to substantiate their
respective claims and on conclusion of trial the suit was decreed by learned Senior Civil Judge (II) Karachi Central vide judgment/decree
dated 17.12.1998. Being aggrieved the
petitioners filed a Revision Petition which has
been dismissed in limine by learned Single Judge vide impugned
order.
4. It is mainly contended by Mr. Khalil-ur-Rehman,
ASC that the learned trial Court had
exercised the jurisdiction not vested in it and the suit was not maintainable being out side the purview of
Section 9 of the Specific Relief Act
which aspect of the matter remained un-attended and resulted in serious miscarriage of justice. It is also
contended that after the death of
Muhammad Naseem (Respondent No. 1)
the suit could not be continued by his
brothers and sisters. It is urged with vehemence that the learned trial Court has not appreciated the evidence which has
come on record in its true perspective
resulting in serious prejudice. It is argued that Muhammad Naseem used forged and fabricated document and
thus played fraud upon
the Court by showing an entry of
possession on the reverse of the allotment order and therefore, he was not entitled to get the possession as the
plot in question was never allotted
in his favour by the competent authority.
5.
Syed Sarfaraz
Ahmed ASC appeared for respondents and strenuously controverted the view point as canvassed by
Mr. Khalil-ur- Rehman on behalf of
petitioners by arguing that the petitioners have failed to substantiate their claim by adducing any worthy of
credence oral or written evidence. It is further contended
that the plot in question was got allotted
on the basis of forged and fabricated allotment order which has been proved on the basis of documentary evidence as
led by the respondents and correctly appreciated by the learned trial Court. He
also pointed out that the question
of fact cannot be agitated which has already been decided by the learned trial
Court on the basis of cogent and concrete evidence. It is also contended that no illegality or irregularity
whatsoever has been committed ither by the trial Court or revisional Court
calling for any interference by this Court. He has also drawn our attention to
the hequered history of the case and pointed out that after lapse of about
three decades the controversy is yet
to be determined finally.
6.
We have carefully examined the respective
contentions as agitated on behalf of
petitioners and respondents in the light of relevant provisions of law and
record of the case. We have minutely perused the judgment passed by learned trial Court on 17.12.1998 and
impugned order. The entire evidence has been thrashed out
with the eminent assistance of learned
counsels of the parties. We are not persuaded to agree with the main contention as agitated on behalf of the
petitioners that suit was not maintainable
under Section 9 of the Specific Relief Act as twofold relief was sought by the respondents for the reason that at
later stage the suit was got amended
with permission of trial Court and only possession was prayed for. It is worth mentioning here that "A suit
under Section 9 of the Specific Relief is however an entirely different kind of action.
That section gives a special
privilege to persons in possession who take action promptly. In case they are dispossessed, it entitles them to
succeed simply by proving (1) that they
were in possession, (2) that they have been dispossessed by the defendant,
(3) that the dispossession is not in accordance with law, and (4) that the
dispossession took place with six months of the suit. No question of title either of the plaintiff or of the defendant
can be raised or gone into in that case". (1989 CLC 318 (DB) + 1987 Dhaka
LR 8 + 1985 CLC 2309 + 1983 CLC 507 + 1981 CLC 654 + PLD 1970 Lah. 560 + 18 DLR
(DB) + PLD 1969 Kar. 78 + AIR 1959
All. 1 (DB) + AIR 1956 Hyd. 170 + AIR 1927 All. 669 (DB). All that is necessary is that it must be proved that the
plaintiff was in possession, that he
was dispossessed and that the suit has been brought within 6 month from the date of the dispossession. It is
immaterial if the plaintiff was in
possession and that such possession was without title and therefore, the contention as agitated on behalf
of the petitioners that possession was obtained on the basis of forged
allotment order cannot be considered. It is
well established legal position that "Title was not material in a suit falling under S. 9 and any person who had
been dispossessed, otherwise than in due course of law, could, within pleading
or proving title, seek to be reinducted into
possession even though such a relief was sought against true owner of
property himself. (Sobha v. Ram Phal, AIR 1957 All. 394; Azam Khan v.
The State of
7.
We have also dilated
upon the question as to whether appeal or revision
is competent in such like cases? The impugned order passed by learned Sinele Judge seems somewhat contradictory on this
point. It is worth mentioning
here at this juncture that Section 9 itself provides "That no appeal shall lie from any order or decree passed in
any suit instituted under this section,
nor shall any review of any such order or decree be allowed".
It is well settled by now that "A revision lies to the High Court under Section 115 of the Civil Procedure Code in espect of an order or decree made in a suit under Section 9 of the Specific
Relief Act (1983 PSC 158 + PLD 1964 Pesh. 157 = 16 DLR (WP) 164 + PLD
1950 Pesh. 35 + PLD 1952
favour of driving the plaintiff to a
regular suit, the High Court would interfere in revision) + AIR 1949
Nag. 422 + AIR 1926 Mad. 290 + AIR 1933
Mad. 609 + AIR 1932 Oudh. 39 + AIR 1937 Oudh 183 + AIR 1934 All. 541) as when rights of the aggrieved party were so
clear that it may not be equitable to
force him to another suit or the case had been disposed of on an
obvious misapprehension as to the true legal position or where there was
some defect of jurisdiction in the
proceedings. (1989 CLC 219).
8.
We cannot endorse
the view of Mr. Khalil-ur-Rehman ASC that the
evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of
justice because the scrutiny of entire
evidence would lead clearly, indubitably and irresistibly to the inference that respondents have proved that they
were in possession of
the plot in question and were dispossessed
by the petitioners otherwise than in due course of law. It has
been observed with grave concern that matter has
been lingering on for one or the other reason for the last 27 years on hyper technical issues and the petitioners have
succeeded in frustrating the object of various judicial pronouncements
which aspect of the matter has
taken care of by learned trial Court by
whom it was observed as follows: "Thus in the light of 12 witnesses
statement, confirmation of Muhammad
Nasim allotment and possession by the allotting authority and his two officers of Liaquatabad and about 150 documents produced by him abundantly proved that Muhammad Nasim was real allottee and he was in possession of the
suit premises till 3.4.1994, when he was
dispossessed by Anwar Hussain, Defendant No. 2 and his associates on gun
point FIR dated 3.4.1973 is also a solid
proof of his dispossession on gun point. Judgment and decree dates
13.1.1983 and 22.1.1983 respectively in Appeal
No. 232/80 of the Vllth Additional District Judge, Karachi, declaring allotment
and lease as bogus and fraudulent of Defendant No. 1. Supreme Court of