P L D 1973 Karachi 195 (PLP)

Alt Ahmad Shaikh for legal heirs of Respondent No. I (in Revisions Nos. 161 to 168 and 194 to 203 of 1965). Date of hearing : 10th August 1971. In Revision Application No. 143/65 and the other connected Revision Applications (Nos. 144 to 151 of 1965, 153 to 168 of 1965, 184 to 203 of 1965 and 241 to 245 of 1965) a common question of law is involved, as to whether the suits and the distress warrants are exempted from the jurisdiction of the Small Causes Court.

2. Before I propose to deal with this legal question, I may recall the admitted facts which form the background of the suit. A big mansion known as 'Nadibai Building, situated in Jodia Bazar, Karachi was purchased by 13 persons in public auction, Mustejab Hussain Naqvi and Abdur Rahim Khan were among those 13 persons. Mustejab Hussain Naqvi had contributed Rs. 58,043 from his compensation book towards the price of the building which was sold in public auction for Rs. 2,80,

000. Abdur Rahim Khan bad contributed Rs. 28,800 from his com pensation book. The shares of these persons in the property were 1/5th and 1/10th respectively. They then served statutory notices on the tenants as required by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and later filed suits and D. Ws. for the recovery of specific sums of money on the basis of their contribution towards the purchase price. In all the suits and the D. Ws specific sums of money were claimed from the applicants. The other purchasers were also joined in the suits as defendants and in the D. Ws. as opponents. The cc‑owners admitted the claim of Mustejab Hussain Naqvi and Abdur Rahim Khan in the following words:‑ "Your client's share in Nadibai building is not denied and his right to claim the rents of the premises held by my clients is also not contested." There was thus no dispute either with regard to the amount claimed in the suit or the right of one co‑sharer to claim his share of the rent from the applicants.

3. At the trial, the share of these two co‑owners was also not disputed by the applicants. Except for Mustejab Hussain Naqvi and Abdur Rahim Khan the other co‑owners had also sold their shares to the applicants. A statement to this effect was made by the advocate for the applicants before the learned Judge, Small Causes Court, i.e.:‑ "The learned counsel appearing on behalf of the defendant No. 1, disclosed for the first time at the arguments stage that all the defendant‑tenants had purchased the shares of defen dants 2 to IZ and as such latter are not necessary parties to these proceedings." After the decision of the suits and the D. Ws., the applicant in Revision No. 143/65 purchased the admitted 1/5th share of Mustejab Hussain Naqvi by a registered deed. The heirs of Abdur Rahim Khan, who is now dead, have also entered into an agreement for the sale of his share to the applicant in Revision No. 143/65. 1n this context despite the absence of any dispute as to their shares the legal contention was pressed. The learned Judge, Small Causes Court reached the conclusion that "it is an admitted position that defendant No. 1 in all the suits have purchased the shares of the other defendants and a9 such the only landlords left in this case are the plaintiffs and defendant No. I, "and as such the share of the plaintiff is well defined and accordingly no suit for apportionment of rent was necessary in the first instance. Vide common Judgment dated 25th August 1965 all the suits were decreed and distress warrants were ordered to issue. Against this judgment the contesting defendants, who are the tenants, have filed these revisions.

4. Mr. Iqbal Kazi, the learned counsel for some of the applicants in the above‑cited revisions, has raised a common question that the suit and the D. W. were not maintainable with out apportionment of rent and they were in effect one, for the apportionment of rent. He relied on clause (7) of the 11 Schedule, which excepts from cognizance, suits for apportionment of rent of immovable property. He cited (1) A I R 1945 Mad. 507 and (2) P L D 1956 Posh.

43. In the first case, the co‑owners disputed their respective shares in the property and in the view of the learned Judge, the nature of the suit changed into one of title and as such it was excepted from cognizance of the Small Causes Court. When this distinction was pointed out to Mr. Kazi he conceded that this judgment will have no application to the instant case since there was no dispute between the co‑owners. In the next case, one co‑owner had filed a suit against the other co‑owner for his share of the rent alleged to have been collected at a certain rate. It was held that such a suit was no other but a suit for accounts between the cc‑owners and as such it was excepted from the jurisdiction of the Small Causes Court. This precedent was also not pressed by the learned counsel as, on the face of it, it had no application to the instant case. The learned counsel was unable to show from the plaint whether the relief claimed could be construed to mean one for the apportionment of the rent as specific amount was claimed upon the premise of a specific share which was not disputed in the proceedings. This was so even in the case of a D. W. In this view of the matter, the bar of jurisdiction has no efficacy and Mr. Iqbal Kazi in the end did not seriously press it. He was also unable to cite any general proposition, upon which one co‑owner, when his share was specific, could not file a suit for the recovery of his own share of rent from the tenants. Such a suit will not, therefore, be barred on any general principle as well.

5. Mr. Zaheeruddin, the learned counsel for the remaining applicants, adopted the arguments of Mr, Iqbal Kazi and further urged that the suit was barred by the provision of section 3(1)(a) of the Conciliation Courts Ordinance, 1961, but when he was confronted with section 4 of the Provincial Small Causes Court Act he readily gave up the plea. Even otherwise, such a suit is maintainable vide judgment of the Supreme Court in the case published as Zamiruddin v. Hawas Khan (P L D 1969 S C 57).

6. For the foregoing reasons I do not see any point in these revision applications which are dismissed with no order as to costs. K. B. A. Petition dismissed.