1990CLC110 (PLP)

2. On recording evidence, the Executing Court, per order dated 20‑5‑1986, came to the conclusion that the decree‑holder failed to prove that the Pan Cabin was part and parcel of Shop No.26 and further held that the "judgment‑debtor" had brought a number of documents on record which proved that he was tenant of the Pan Cabin. On this finding the application of the decree‑holder was dismissed. .

3. On Appeal being taken, which was first numbered as CA. No.99/86 and later renumbered as CA. No. 10/88, Mr. Bashir Ahmed 1, Memon, the learned 11Ird Additional District Judge (Central), Karachi, in detail, examined the case and set aside the Order dated 20‑5‑1986. on 28‑2‑1989.

4. This Revision Application was directed against the above order passed in Appeal. On being admitted to regular hearing, the Revision was directed to be heard vide Order dated 26‑3‑1989, after three months. Later, as the respondents 2 and 3 could not be served and were not contesting parties, per order dated 14‑5‑1989, their appearance was dispensed with and direction was given that the Revision be put up for regular hearing during vacations. On 5‑6‑1989 my learned brother Mazhar Ali, J., disallowed a request for adjournment, on the ground of Applicant's counsel having proceeded to India, and asked the Applicant whether he would like to be represented by another counsel, which suggestion he declined and, as such, the Revision Application was dismissed. 5, Subsequently, another learned counsel was engaged by the Applicant who moved for recall of order dated 5‑6‑1989, hearing the Revision on merits and for interim stay, in the meantime (CMAs Nos. 689/89 and 690/89). The other side, before issuance of notices, appeared in Court and waived the process‑

6. Without being detained by the question whether the Applicant has a good case for recall of order dated 5‑6‑1989, for it may well be that he has no such case, as two successive orders of hearing during vacations, were sought to be circumvented and, apparently, this Court was left with little option but to cut short the controversy, which had already raged for over 20 years, I have, still, considered it in the interest of justice to examine the Revision Application on merits in order to see whether the Applicant has any substantial case for consideration. The main consideration in following such procedure has been to A do complete justice between the parties, even though the applicant may have himself been responsible for bringing about the present state of affairs. Another reason for so doing is in recognition of the principle that matters must essentially she decided on merits in preference to ex parte orders and that if there be merits on the side of the Applicant, in a case dismissed for default, and hardship is shown added thereto, that may also be a relevant circumstance for condonation of default in appearance.

7. Resultant examination of the case shows that the respondent Wilayatullah, decree‑holder in the case, who was the tenant of Abdul Rehman, Bundoo Shah and Bedar Shah in respect of Shop No.26, Bedar Market, aforesaid, in turn, passed on such shop to Abdul Rehman, on contract basis and this transpired in August, 1966. Pan business in the name and style of "Nau Bahar Pan Shop" was run in the said shop. As has been seen, decree for possession was passed in the context of this shop. The case of the present Applicant is that he was carrying on similar Pan business in the name and style of 'Nau Bahar Pan House" in an adjoining cabin, which was not part and parcel of Shop No.26, Bedar Market, aforesaid. Applicant claims that he has been running such business under an agreement dated 27‑11‑1971 as licensee of Bundoo Shah, respondent No.3 herein, and that he is not liable to be evicted pursuant to the decree, which came to be passed in Suit No.1752/67. The learned Additional District Judge, whose order in Appeal is sought to be challenged here, on examination of the case at some length and even personally, though incognito, making site inspection, come to the conclusion that the main gate of Shop No.26, Bedar Market, had been closed by putting up a wall and improvising a structure, with a view to defeat the decree for possession. Holding such structure to be part and parcel of Shop No.26 the learned Judge allowed the Appeal.

8. In support of this Revision Application Mr. Maroof Ali Khan has raised the following questions:‑ (1) Respondent No.l did not, as incumbent upon him, give the details of Shop No.26, aforesaid. (2) Respondent No.l never pleaded in the suit that there was a cabin in Shop No.26. (3) Respondent No.l did not object to delivery of possession by the bailiff when the execution was made and satisfied. (4) The learned Appellate Court seriously erred in law in making an incognito inspection of the disputed premises. (5) There being divergence of opinion in the findings of the two Courts below and the learned Appellate Court having exceeded its jurisdiction and committed material irregularities, the case is open for exercise of revisional jurisdiction. On the other hand, Mr. A.K.M. Idris has urged as under:‑ (1) Shop No.26 aforesaid comprises of such shop in all its perimeters, doors and windows, inlets and outlets and was duly described. (2) Due objections, and in time, of lack of full satisfaction of the decree were taken. (3) The contrivance of blocking the main entrance of the shop by the applicant and putting up a Pan counter therein is an act of fraud and continuing disrespect to the orders of Court, as is reflected throughout the course of these proceedings. (4) The lower Appellate Court acted in aid of justice to discover the truth and the end justified the means.

9. On the first of these questions raised by the learned counsel for the applicant reliance has been placed on Order 7 Rule 3 and Order 20 Rule 6, C.P.C. Now, all that Order 7 Rule 3 requires is that where the subject‑matter of the suit is immovable property, the plaint shall contain a description sufficient to identify it and in case the same can be identified by boundaries, or numbers in the survey record the plaint is to specify such boundaries or numbers. Rule 6 of Order 20, pertaining to the requirements of a decree, envisages that, inter alia, the decree shall indicate the particulars of the claim and specify the relief granted or other determination of the suit. An examination of the plaint and the decree, which has followed thereupon, indicates that Abdur Rehman, Bundoo Shah and Bedar Shah raised a market in Liaquatabad and the dispute in the suit related to one of the shops, in such market which was said to be numbered as Shop No.26, Bedar Market, 1‑A Commercial Area, Liaquatabad, Karachi. It is thus obvious that it is not the entire plot or survey number, (as contemplated in Order 7 Rule 3 C.P.C.) which was in dispute but only a portion thereof, which was assigned a distinct number namely, 26, Bedar Market, and which was duly and sufficiently described by mentioning such number. It, therefore, follows that such portion was properly indicated in the plaint and in the decree which came to be passed. As such, the description in the plaint and in the decree does not seem to be otherwise than in conformity with the provisions of either Order 7 Rule 3 C.P.C. or Order 20 Rule 6 thereof.

10. It is settled law that if a question arises either in the suit or even in execution in regard to the dimensions of the immovable property, which is the subject‑matter of either, the relevant Court has ample authority to determine C such dimensions. It was admitted at the Bar that Bedar Market aforesaid consists of 26 shops and that the disputed cabin or counter or structure, by whatever name it may be called, is not one of these 26 shops. The contention of the applicant is that the disputed area is an independent entity and that he is in possession thereof as a licensee of Bundoo Shah aforesaid, one of the judgment‑ debtors. In support Mr. Mirroof Ali Khan, for the applicant, has referred me to some documents, two of which are notices of 1974, from the local authority for removal of an unauthorised structure, another is a purported licence under the Telegraph Act in the name of one Suleman, premises wherein is shown as shop in Bedar Market, Liaquatabad, Karachi 19, and yet another is a K.M.C. demand for advertisement Tax of Rs.750 for a Sign Board in the name of "Nau Bahar Pan House", the last date of payment therein being 30‑6‑1977. Thus, inferentially, it is attempted to be shown that such counter or structure, as is now sought to be protected, has subsisted and been there for a period of time. But, correspondingly, it will be interesting to refer back to the dispute involved in these proceedings, for implications of such dispute appear conclusively. to reflect on the pleas presently advanced by the applicant. It has already been seen that the applicant appeared on the scene in the execution proceedings, as Attorney of the previous Objectors. I find, in confirmation, from the record that there is a General Power of Attorney, dated 30‑11‑1983, (attested 1‑12‑1983) from Mohammad Ismail and Abdul Karim in favour of Haji Suleman s/o Mohammad Hussain applicant herein to run Shop No. 26, Bedar Market aforesaid on their behalf. Ismail and Haji Karim are the very persons, who, as Objectors, claimed the Said shop No.26 in their own rights at the referred earlier stage of the execution and lost in that attempt. At the present stage in execution all that which stands settled and finally determined seems to be reagitated and, de novo, though in another guise and this cannot be permitted. In the background of this controversy it is doubtful if there was any such independent entity, as alleged; the unauthorised extension. if any, could be part of Shop No.26, as is not uncommon and at any event, independant rights, if any, in relation thereto stand already determined either expressly or by necessary implication. Even otherwise, while the present Objector has failed, in evidence, to produce and prove the tenancy agreement dated 25‑11‑1971 (attested 27‑11‑1971) from Judgment‑Debtor, Bundoo Shah, in virtue of which he claims, a photostat copy of such purported Agreement was filed alongwith his objections submitted on 13‑7‑1985. Such Agreement, for what it be worth, speaks of a cabin "adjacent to the stairs" whereas the disputed fixture is in the main gate of Shop No.26 aforesaid and, admittedly, all the 3 other main‑road shops in the market have such main gates which in respect of the one in question is blocked by the disputed Pan Counter. Besides, the applicant in such purported agreement, claims to be tenant of judgment‑debtor Bundoo Shah whereas in his evidence in Court maintains that he is the "owner of Pan Cabin" since 1971. This is not all. Even Bundoo Shah was. allegedly, not accepting rent from him and he had to resort to deposits in Misc. R.C. No. 1718/86 but that too not before 2‑5‑1985. and 2‑7‑1985, after the decree holder had lodged an F.I.R regarding the alleged putting up of the disputed fixture on‑ 30‑3‑1985. It would, therefore, seem that the present objections also qualify as another link in the unending claim of frivolous litigation pursued by the judgment‑debtors or at their behest and should deserve the same fate.

11. On the questions of dimensions, it must, also, be stated and can never die over‑emphasised that a property or a portion thereof always includes its inlets and outlets, that is to say, the spaces meant for the exercise of rights of ingress and egress. Easements of light and air, such as there be, are likewise, included in the rights In Rem pertaining to an immovable property. Appurtenances fall also in such category. What the Applicant would have the Court believe and accept is that two distinct Pan businesses were being carried on in Shop No.26 and in the doorway of the same shop by one and the same person, similarly claiming title and whereas the shop can be got vacated its doorway cannot be. The situation is not unlike a tenant vacating, on eviction, but blocking the main entrance with his effects forcing the landlord to use alternative routes of ingress and egress. Under the Rule of the Road even a vehicle cannot be parked to block the passage to a house or business premises. Accepting what the applicant urges would tentamount to throwing all rules of law, equity and good conscience to the winds. Such a contention is too preposterous to be considered, let alone accepted. Here the objector is the same, though in different garb but, or principle, even different persons, acting thus m unison, must be similarly dealt with. This is, as Mr. A.K.M Idris rightly puts it, a case of fraud established by the very course of these proceedings.

12. As to allegedly belated objections by the decree‑holder, learned Appellate Court has referred to an F.I.R. dated 30‑3‑1985 wherein on the night between 29th and 30th March, 1985, it has been alleged that the applicant Mohammad Suleman put up a wall in the gate of Shop No.26 aforesaid. On the other hand Mr. A.K.M. Idris has pointed out that at the time of delivery of possession also objection was raised regarding non‑delivery of the disputed structure to the decree‑holder. It is thus obvious that the claim of the applicant was necessarily connected with the disputed shop and that there was no delay, as alleged, even though how such delay could defeat rights at law, I cannot see since no question even of waiver or estoppel seems to arise in this case.

13. It is next contended that the decree‑holder never pleaded in the suit that of there was a cabin in or a pertaining to Shop No.26. in Bedar Market aforesaid and, therefore, by seeking to execute the decree in respect of such an independent entity, he is trying to get hold of something which he has no present right to possess. For one thing, the alleged cabin, as observed above is not an independent entity and it was not incumbent on the decree‑holder to make specific mention of the same in the plaint. This is all the more so as such cabin, perhaps, was put up following upon and with a view to defeat the decree, as alleged. Besides and this is crucial, it is incomprehensible as to why the present applicant was carrying on business in the main shop as well as in the purported cabin of the same kind but in different capacities. The business in the cabin, apparently, would hardly allow and, rich business to filter into the main shop.

14. Indeed it would have been expected of the judgment‑debtor and even the applicant‑objector, rather than of the decree‑holder to make mention of such a distinct entity, if any, in the earlier proceedings and Objections. That they did not do so. leads to the reasonable inference that the shop and the cabin were in fact part of one integral whole, irrespective of the question when such cabin actually cropped up. In these circumstances noting turns on the question that the decree- holder did not make mention of such a cabin at any earlier stage of the proceedings and the objection on that scope is liable to be rejected.

15. It was lastly urged that the learned lower Appellate Court seriously erred in making the site inspection of the disputed premises incognito. Relevant provision in this context is referable in Order 26 Rule 9 which read with Section 107 of the Code of Civil Procedure vests an Appellate Court with like powers of local investigation. It is not in question that such an investigation may be conducted by a Judge in person. Indeed there may be situations where personal inspection of the Judge alone may serve the purpose and the power, which is calculated to advance the course of justice, may come to be exercised in that manner and form. The only objection here is that such inspection was conducted t incognito, which, it is contended, should not have been done. Now, it cannot be questioned that the power under Order 26 Rule 9, C.P.C. of local investigation may be exercised without notice to the other side and, indeed, there may be occasions when mere issuance of notice could frustrate the object of the exercise. In such cases notice, obviously, is not called for and may be dispensed with. An incognito investigation is more or less on the same footing. Doubtlessly, such an incognito investigation, even though it has sanction in parables from the Islamic E Era, should be an exception rather than the rule. The facts of this case, involving unending litigation for years together, do justify the adoption of such a course. Indeed the exercise was not without result and the learned Judge noted that he found the dividing wall between the shop and the cabin to be a newly erected one. This is a case where the end justified the means. Here I cannot fail to record that the learned lower Appellate Court literally took pains in justly resolving the dispute and must be approbated rather than reprimanded, as claimed for the applicant.

16. In the ultimate analysis, it is argued that there is a divergence of opinion between the two Courts below and that the whole controversy opens up at this revisional level. It is correct that under Section 115 of the Code of Civil Procedure revisional powers are calculated to correct and rectify jurisdictional errors and where the two Courts below have reached different conclusions on the same facts one of them may have exercised the jurisdiction illegally or with material irregularity and it may be open in revision to agree with one of such views. But, then, such agreement can be expressed with the correct and lawful view alone. In this case I find that the trial Court did not apply its mind correctly or appropriately and the exercise of jurisdiction by the lower Appellate Court was G properly based with which I have no reason to differ and whose view must be affirmed.

17. As a result, even on merits the applicant does not have a case for re consideration and, therefore, the dismissal of the Revision application, though ex parte by my learned brother Mazhar Ali J, remains unexceptionable. As such, the above applications, C.MAs. No.689‑690/89 stand dismissed. AA./M‑925/K Revision dismissed.