1986 PLP 677 (CLC)

Mehar Hussain Mesawa for Appellants. A. Majeed Khan for Respondent No.l. S.M. Muslim Naqvi for Respondent No.2. Dates of hearing: 18th and 19th September, 1985. By this Judgment both the Revision Applications will be disposed of. The applicants filed Suit No.1938/77 for declaration, cancellation of lease deed granted in favour of the respondent, possession and mesne profit. The facts of the case are that under a registered lease deed, dated 23‑12‑1969 Karachi Municipal Corporation leased out Plot No .1217/26, Saeedabad Quarter, Karachi to one Muhammad Yousuf the predecessor‑in‑interest of the applicants. It was alleged that prior to the lease deed, dated 23‑12‑1969, under an agreement of rent he had rented out the premises to one Muhammad Azam at a monthly rent of Rs.30 against whom a notice was also issued to pay rent and to vacate the premises. Instead of vacating the premises, in the year, 1975, without intimating Yousuf he vacated the premises and handed over the possession to respondent No.1 who is an unauthorised occupant. It was alleged that the respondent No.1 taking advantage of the possession by swearing a false affidavit has obtained from K.M.C., a lease of the same property in his name. In these circumstances, the prayer for cancellation of the lease deed executed in favour of respondent No.l, mesne profit and possession was made. Samandar Khan the respondent No.l filed his written statement in which he alleged that applicants have no right over the property and the lease deed was obtained by misrepresentation and concealment of facts. It was denied that Muhammad Azam had ever occupied the premises and he claimed possession for the last 17 years. K.M.C., the respondent No.2 also filed written statement and confirmed that the lease was granted in favour of Yousuf on 15‑6‑1974 and the lease of the same plot was again granted to Samandar Khan the respondent No.l on the basis of his application dated 10‑6‑1975, which was supported by an affidavit. When the matter was brought to the notice of the authorities, a show‑cause notice was issued but as the suit was filed, no action could been taken in the matter. The respondent No.l also filed a suit bearing No.14/1979 for cancellation of lease granted in favour of Yousuf and injunction mainly on the ground that he is in possession of the property, holds registered lease deed in his favour and Yousuf has obtained the lease deed by misrepresenta tion. Both the suits were consolidated by the learned trial Court: The learned trial Court decreed the suit filed by Yousuf, the predecessor of the applicants and dismissed the suit filed by Samandar Khan the respondent No.l. The respondent No.l then filed 1st Appeal which was allowed by the learned XIIth Additional District Judge, Karachi on 16‑3‑1983. The applicants have filed two Revision Applications, one against the dismissal of their suit and the other against the Judgment/ decree of the appellate Court, whereby suit of the respondent No.1 has been decreed. At this stage it is proper to mention that on 1‑6‑1983 while hearing the application for stay the following order was passed:‑

"The dispute in this case relates to a plot of land which is claimed both by the petitioner as well as by the respondent No.l. Both the parties claim to have leases in their favour in respect of the plot in dispute. The suit of the petitioner was decreed and that of the respondent was dismissed by the trial Court but the decree has been reversed by the first appellate Court. In view of the conflicting Judgments of the two Courts below, the contention of the learned counsel needs examination. Admit. However, it will not be necessary to issue notices to respondents who are present in Court on pre‑admission notice.

2. In so far the miscellaneous application is concerned, it is admitted by the counsel for the petitioner that Samandar is in possession of the plot. He will not part with the possession of the said plot or sell or transfer the same until further order. It is left open to the K . M . C . , to proceed with the matter and decide the dispute regarding allotment of quarter on merits. Miscellaneous Application is disposed of accordingly." In compliance with the order, it seems that the K.M.C., started proceeding and has given its decision, whereby, the lease granted in favour of the respondent No.l has been cancelled. He has filed another suit challenging the decision of the K . M. C . , inter alia on the grounds that the K . M . C . , had no jurisdiction to cancel the lease and further that order has been passed without affording proper opportunity of hearing him. This suit is still pending. Mr. Mesawa the learned counsel for the applicants has filed an application No. C . M . A 54 of 1985 in which, reference has been made to the decision of the K . M. C. , and it has been prayed that subsequent event should be taken note of and the revision application may be allowed as the lease of the respondent No.l has been cancelled. Mr. Abdul Majeed Khan the learned counsel for the respondent No.l has opposed this application on the ground that in every case subsequent event cannot be taken and particularly when the authority of K.M.C. has been challenged and the matter is sub judice before the Court of competent jurisdiction. It is correct that K.M.C. had taken proceeding in compliance with the oxder dated 1‑6‑1983 but the same decision has been challenged in a Court and as the matter is sub judice it would not be proper for me to take into consideration this subsequent event and pass judgment entirely on that basis. I had asked Mr. Muslim Naqvi the learned Advocate for K.M.C. to show me the provision of law under which K . M . C is authorised to take an action but no provision of law has been shown to me and further, I do not consider it proper to adjudicate on an issue which shall be decided by a Court where the suit is pending. Now coming to the merits of the case from the pleadings as well as from the evidence of the parties, it is clear that there is no dispute about the identity of the property. In the written statement and the plaint filed by the respondent No.l it has never been disputed that the property claimed by the applicants is different from the property in respect of which lease deed has been granted to Samandar Khan. The other aspect of the case which cannot be denied is that the lease to Samandar Khan, the respondent No.l was granted in respect of the same property subsequently. There is nothing on record to show that the applicants were issued any show‑cause notice for cancellation of their lease prior to grant of lease to Samandar Khan. Therefore, the facts on record are that the lease of the applicants is prior in time and was in existence at the time lease in favour of Samandar Khan was granted by K. M. C. So far, the grant of lease is concerned the K. M. C., has examined one witness and produced affidavit filed by the respondent No.1 in which he has stated that if any person makes any claim at any stage, he would vacate the premises. There was no reason to make such a statement. If Samandar Khan was legally entitled by virtue of his possession, he could have claimed the said property without making such statement. In the facts and circumstances of the case, I am of the view that during continuance of the lease deed in favour of Yousuf no lease deed could have been granted in respect of the same property to any other person, even to a person who may be in possession of the said property unless proper and legal procedure had been adopted for cancellation of the earlier lease deed and the same had actually been cancelled. Mr. Abdul Majid Khan the learned counsel for the respondent No.l has contended that the revisional jurisdiction of this Court is limited to interfere on grounds relating to the jurisdictional questions and as the 1st Appellate Court has on proper appreciation of the evidence on record come to a finding, it cannot be interfered under section 115, C.P.C. In this regard the learned counsel has referred to P L D 1983 S C 53 and the relevant observation is as follows:‑

"As pointed out by this Court in Muhammad Umar Beg v. Sultan Mahmood Khan P L D 1970 S C 179 revisional powers under section 115, Civil Procedure Code are, primarily intended for correcting errors made by subordinate Courts in the exercise of their jurisdiction. Also, ordinarily erroneous decisions of fact are not revisable, except in cases where the decision is based on no evidence or inadmissible evidence or is so perverse that great injustice would result therefrom." In the present case, the learned appellate Court has approached the entire controversy by ignoring such facts which were conclusively proved and established and in respect of which, there could be no dispute, The learned first appellate Court had taken into consideration the minor discrepancies in the evidence and has completely ignored the registered documents, which were admitted by both the parties. The learned trial Court while ignoring the registered documents had acted with material irregularity and adopted procedure which has resulted in grave injustice. In such circumstances, the revision jurisdiction can be exercised. Both the revision applications are allowed and the judgment and decree passed by the first appellate Court are set aside with no order as to costs. H . B . T . Revision applications allowed.