1983 PLP 1241 (CLC)

(8) Whether the tenement in question has been transferred to the plaintiff by the Settlement Department and the plan for construction on roof thereof has been approved by the authority concerned ? (9) Whether the defendant is in peaceful possession? If yes, whether the plaintiff is entitled to disturb it ?

6. At the trial upon the evidence produced and hearing the advocates for the parties, Issues No. 1 to 3 and 5 were answered in the negative while Issues Nos. 4 and 8 were answered in the affirmative. As regards the Issues Nos. 6 and 9, though the same were answered in the affirmative yet it was held that the possession of the defendant was illegal. On the findings recorded on the issues in the suits the learned trial Court held, as follows :‑ "The overall result of the above findings is that the plaintiffs are entitled to the permanent injunction claimed by them in respect of their respective tenements and the suits are therefore decreed as prayed. The defendant will bear the costs of the plaintiffs in each suit.

7. Against the judgment given in, the three suits, the applicant/ defendant filed Civil Appeals Nos. 115, 116 and 117 of 1973 which were heard and disposed of by V1 Additional District Judge at Karachi who while maintaining the findings of the learned trial Court that the entire building was single storeyed consisting of 5 tenements, ‑and no tenement existed on the first floor and that the defendant. would have no concern whatsoever with the roofs of tenements Nos. G/1, G/2 and G/4 which belong to the plaintiffs observed :‑ "I am of the considered view' that the so‑called tenement No. 1/1 had no legal or physical existence and it had no separate and distinct entity whatever. The roof of all the tenements G/1 to G/5 were open and were free from any type of consideration." The learned Lower appellate Court further held :‑ "The next contention raised by the learned counsel for the appellant relates to the possession of the open terrace. According to him, the appellant was in exclusive and peaceful possession of the open terrace situated over G/1 to G/5. In order to establish the possession of the open terrace the appellant has relied upon the Custodian receipt and the rent receipts of the Evacuee Trust Department and the fact that the access to the open terrace was from within the tenement No. G/5 which is in possession of the appellant exclusively. On this point there is inspection note of the Civil Judge who had inspected the premises in presence of the parties which appears to indicate that there is no staircase from the shops of the respondents towards the roof of the shop from the godown No. G/5. The inspection note further says that there is no construction on the roof of the shops but some scrap articles were lying there. The respondents do not deny that the access to the open terrace is from tenement No. G/5. The learned lower Court has recorded a finding as to the possession of the open terrace in favour of the appellant. "From the evidence which is produced by the parties and from the fact that the only access to the open terrace is from the staircase from GJ5 an inference can well be drawn that the open terrace including the roof over the shops of the respondents is in possession of the appellant." Having held as above the learned lower Appellate Court proceeded to examine the questions. (1) Whether the plaintiffs/respondents who were not in possession of the open terrace above the shops would be entitled to claim permanent injunction. simplicitor without adding a prayer for possession ? and (2) Whether in the circumstances these suits for permanent injunction simplicitor were competent or not." The learned lower Appellate Court first disposed of the question as to be ownership of the roof and held that the plaintiffs were transferee/owners of the roofs, above their respective shops. Having disposes of the question as to the ownership of roofs as stated above, the learned lower Appellate Court on the question raised above proceeded to hold that the plaintiffs be afforded opportunity to amend the plaint by adding a prayer for possession upon payment of ad valorem court fee and grant the relief even though the plaintiffs had not specifically asked for it. Placing reliance upon the case reported in Keramat Ali v. Mohammed Younas (P L D 1963 S C 191) and Ahmad Din v. Mohammad Shafi and others (P L D 1971 S C 763), the learned Appellate Court held, as follows. "Following the dictum laid down in the aforesaid autorities I am of the view that though the respondents have not claimed retie: of possession yet they are entitled to it. Further it shall eliminate multiplicity of proceedings between the parties arid numerous legal complications which may arise in the absence of grant of relief of possession to the respondents. Under these circumstances I shall, afford an opportunity to the respondent to amend the plaint, assess the relief of the possession and pay ad valorem court‑fee on that relief. They can do so within a fortnight in the lower Court. Upon payment of court‑fee on the properly assessed relief of possession the respondents shall also be entitled to a decree of possession over the roof of their shops."

8. Mr. Mohammad Ali Saeed the learned counsel for the applicant after having argued for some time conceded that the applicant does not dispute the ownership of the plaintiffs over the roofs of the tenements Nos. G/L, G/2 and G/4 transferred to them. He however submitted that the case of the defendant/ applicant is that he is a tenant in occupation of the open roof. According to the learned counsel the procedure adopted by the learned Lower Appellate Court whereby the plaintiffs were granted opporunity to amend the plaint by adding the relief of possession and pay the ad valorem court‑fee on that relief, is in according with the procedure and principle laid down by the Honourable Supreme Court of Pakistan in the case of Keramat Ali v. Mohammad Younas (P L D 1963 S C 191). He however submitted that the learned First Appellate Court committed error of law and acted in excess of jurisdiction by giving the further direction that : "Upon the payment of court‑fee on the properly assessed relief of possession the respondent shall also be entitled to a decree of posses sion over roof of their shops." Mohammad .Saeed, the learned counsel referred to the case of Keramat All, wherein the Honourable Supreme Court while allowing amendment of the plaint by adding prayer for `Khas' possession and to pay additional court‑fee as in a suit for possession, remanded the case to the trial Court for enabling the plaintiffs to make necessary amendment to the plaint arid thereafter to dispose of the suit in accordance with the law. Having given the directions as above, the Honourable Supreme Court further proceeded to observe as follows : "If the respondents wish to put in any additional written statement and to contest the suit on this question of possession alone they will also be at liberty to apply to the trial Court for permission to do so. Additional evidence on this issue alone may also be led, if the respondent seeks to challenge the right of the appellants to claim possession even on the date of the‑ institution of the suit." It was .further argued by the learned counsel that the procedure adopted by the learned lower appellate Court whereby, a decree for possession was to follow automatically against the defendant is against the recognized principle of procedure and is like to result in substantial miscarriage of justice an condemning the defendant without even giving him any opportunity to show cause or hearing, Mr. Mujtaba the learned Counsel for the respondents/plaintiffs argued that in view of the findings of the two Courts below there was nothing further which required any adjudication by the trial Court on amendment of the plaint by adding the relief for possession. However when pointed out the procedure directed to be adopted by the trial Court on remand in the case of Keramat Ali decided by the Honourable Supreme Court, the learned counsel for the respondents/plaintiffs was unable to say anything. in support of the procedure adopted by the learned lower appellate Court. I accordingly find no hesitation in concluding that the procedure adopt ed by the learned lower Appellate Court is against the principles and procedure directed to be adopted by the Honourable Supreme Court of Pakistan in the case of Keramat Ali.

9. The Revision Petitions were disposed of by short order passed on 26th April, 1982 which reads as follows :‑ "For the reasons to be recorded separately and agreeing with the direction of the learned 1st Appellate Court allowing the respondents to amend, the plaint, assess the relief of the possession and pay the ad valorem court‑fee on that relief, but modifying the judgment to extent that instead of a decree of possession over the roof of shops would follow payment of court‑fee on the properly assessed relief for possession, following the principle laid down in the case of Keramar Ali v. Mohammad Younus (P L D 1963 S C 191), I hereby order the remand of the suit to the trial Court for disposal of the suit in accor dance with the law in the light of the amendment of the plaint allowed by the learned is Appellate Court. I further direct that if the appellants wish to put in any additional written statement and to contest the suit on question of possession they will also be at liberty to apply to the trial court for permission to do so. Additional evidence on the issue of possession alone shall be allowed to be led if the appellants seek to challenge. the right of the respondents to claim the possession. It is clarified at the request of Mohammad Ali Sayeed learned counsel for the appellant that it is the case of the appellant that he is the tenant of the open roof. It would be open to the appellant to raise this plea in defence to the relief claimed for possession by way of amendment, to put in additional written statement with the permission of the Court, if such amendment is sought. In the circumstances of the case there shall be no order as to costs."

10. The above are the reasons for the above‑mentioned order. The suits accordingly are demanded to the trial Court to be disposed of/ in the light of the directions given in the short order dated 26th April, 1981D reproduced above. In the circumstances of the case there shall be no order as to costs. M. Y. M. Suits remanded.