1980 PLP 1830 (CLC)

Abdul Rauf for Applicant: A. Aziz Dastgir for Respondents. Dates of hearing: 19th and 26th January, 1980. The revision application has been brought to question the order of the learned 1st Additional District Judge, Karachi, passed on 14-5-19792 where by the appeal of the applicant against the order dated 14-1-1979, passed by the learned XXI Civil Judge, Karachi, was dismissed.

2. The precedent facts are that the applicant had brought a suit No. 3694 of 1978, for declaration and injunction in the Court of learned Civil Judge, Karachi, on the allegation that he was a tenant of the respondent in a premises situated at Rupchand Bela Ram Street, behind Arambagh, Karachi. It was contended that he was paying rent at the rate of Rs. 200 per month to the respondent, who was his stepmother, and on such considera tion no rent receipts were issued to him. The applicant carried on the business of hiring tents and utensils in the premises at Nazimabad and Burns Road while the disputed premises were used for a godown. It was averred that he had installed a telephone N6. 212993, in the premises and also installed an electric meter therein. Besides, some documents were also produced in respect of his claim of possession of the disputed premises. Alongwith the suit an application under Order XXXIX, rules 1 and 2, C.P.C. was filed on which an order of status quo was passed by the learned Civil Judge on 21-12-1978. The respondent filed a counter-affidavit against the application in which she denied that the applicant was her tenant in respect of the premises, which were described to be G-7, and it was alleged that the same were under the use and occupation of her husband Intizar Hussain upto May, 1977. The Applicant has filed photostat copy of a partnership deed dated 1-4-1962, showing that there existed a partnership between him and the respondent Mst. Hajira Begum under the name and style of Wajihat Brothers. He has also produced receipt of payment of Income-tax, by Mst. Hajira Begum, partner of Wajahat Brothers, a notice of demand issued by the Tax Recovery Officer, electricity bill in the name of Ahmadia Furniture with the address of Rupchand Bela Ram Street, Karachi. Photostat copy of a bill from the Telephone Department issued in the name of Wajahat Brothers, on the address of Rupchand-Bela Ram Street, has also been produced. The applicant claims that the partnership with the respondent was dissolved and he was doing the business of Wajahat Brothers himself and also carried on business of manufacture of furniture in the name of Ahmadia Furniture Mart.

3. After noting down the respective contentions of the parties the learned 1st Additional District Judge appears to have almost accepted the case of the respondent that the applicant was a trespasser in the premises and that he came to occupy the same on the date an which status quo order was passed and thereby he had averted the criminal action on the report lodged by the respondent. In the context of the proceedings, which were interlocutory and concerned the grant of interim order of injunction only, such observations amount to accepting the case of the respondent without evidence and are serious enough to prejudice the applicant's case before the trial Court. It was pointed out by Mr. Aziz Dastgir, learned counsel for the respondent, that paragraph 5 of the impugned order mentions that the applicant's counsel had accepted that his client was a trespasser but he was entitled to protection of his right of occupation and was liable to be ejected only according to law. Mr. A. Rauf learned counsel for the applicant, readily met this contention and stated that the alternate submission made by the counsel for the applicant had been misconstrued by the learned District Judge as no Advocate of any could have pleaded against the fact stand in the plaint. I am inclined to agree with the learned counsel. In my case the learned Additional District Judge should have decided the appeal on merit without making serious observations on the merit of the cases as are contained in paragraph 6 of this impugned order. This fact alone is sufficient for setting aside the impugned order as it cannot be gainsaid that the learned 1st appellate Court have over stepped in the in the exercise of his jurisdiction by particularly accepting the respondent s case to the extent of saying that he was a trespasser and had occupied the premises to avert the criminal action on the report lodged by the respondent. The learned counsel for the respondent had to concede that such observations were made by the learned Additional District Judge in the absence of any evidence, as occasion of recording of evidence had not yet arisen and the matter was contested on the basis of affidavits 'alone.

4. The revision application, therefore, succeeds and the order of the learned Additional District Judge dated 14-5-1972 is set aside. I would, in the circumstances, confirm the order of status quo dated 21-12-1978 passed by the learned Civil Judge in the suit of the applicant.

5. At the request of the learned counsel it is directed that the applicant's suit in the Court of learned Civil Judge should be disposed of within six months. S. A. H. Revisions succeeds.