1985 PLP 1275 (MLD)

SALEEM AKHTAR, J.--On 12-12-1980 respondent No.3 filed suit against the petitioner under section 9 of the Specific Relief Act alleging that from the year 1964 he was in occupation of House No. 490/3 Peer Bukhari Kamisri, Bagh, Kotri, as a tenant of one Muhammad Saeed Khan Durrani. The petitioner illegally occupied the said house in November, 1979 without the consent of the respondent No.3 by breaking open the lock of the outer door of the house at a time when the respondent No.3 had gone on duty. The respondent No.3 approached the petitioner to vacate the premises, but he refused to do so, he therefore, filed a suit for restoration of possession of the house. Petitioner in his written statement denied the averment made in the plaint. He averred that respondent No. 3 was residing in the premises before April, 1964 as a tenant, but he was ejected by his landlord Muhammad Saeed Khan Durrani. Thereafter, it was rented out to the petitioner. It was further averred that thereafter, the respondent No.3 requested the petitioner to allow him to reside in the house with him which permission was accorded and the respondent No.3 continued to live there upto February, 1979 when he vacated the said premises of his own accord. It was stated that the respondent No.3 was adopting illegal tactics to extort Pugree from him, so he filed a complaint before the A.D.M. Kotri in May 1979 and the suit has been filed merely to harass him. He further stated that the petitioner had served a notice, dated 19-8-1979, but this was not replied by him. The learned trial Court on assessment of evidence decreed the suit holding that the respondent No.3 has been wrongfully dispossessed. A revision application filed against the said judgment and decree of the learned trial Court was dismissed by the learned Additional District Judge on 8-11-1982. Mr. Syed Madad Ally Shah the learned counsel for the petitioner has contended that the suit filed by the respondent No.3 was barred by time, and, therefore, the decree passed by the Courts below is without jurisdiction, and without lawful authority. The other grievance of the learned counsel for the petitioner is that the trial Court did not frame any issue on question of limitation, and therefore, this plea was not at all considered. A perusal of both the judgments of the Courts makes it clear that they have concurrently found that the respondent No.3 was dispossessed by force. by the petitioner in November, 1979. This finding has been given on the assessment of evidence of the parties. The Courts below have taken note of the fact that the respondent No.3 has been paying house tax to the Municipality in respect of the disputed house on behalf of its owner Saeeduddin Durrani, and he has produced all the bills for the years 1969 to 1979. The respondent No.3 also examined Maqbool Ahmad Tax Inspector of Kotri Municipality who on the basis of the record stated that Muhammad Saeed Khan is the owner arid the respondent No.3 has been recorded as tenant of the disputed house. He further stated that the respondent No.3 had been paying tax for the last 15-16 years. The learned trial Court, also examined the evidence of D.W. Feroz, a sweeper of the house examined by the petitioner, but he stated that at present, the petitioner was residing there, and could not say when the respondent No.3 left the house. According to him he had not seen the respondent No.3 in the house for the last 10-12 years. This statement was completely contradicted by the statement of the petitioner himself, who had stated that the respondent No.3 was residing in the house upto 1979. D.W. Zaheeruddin the water-carrier stated that the respondent No.3 is not residing for the last about' one year. The learned Court in view of conflicting evidence came to the conclusion that the respondent No.3 was ejected forcibly by the petitioner in November 1979. Mr. Imam Ali Memor, the learned counsel for the respondent No.3 contended that the Courts below have properly assessed the evidence and there is neither misreading of evidence nor any evidence has been ignored, and therefore, such finding of fact cannot be disturbed in Constitution petition. Mr. Syed Madad Ally Shah referred to Exh 31 a notice which was served by the petitioner on the respondent No.3. This notice is dated, 19-8-1979 in which it was stated that the appellant had shifted from the house and is causing undue harassment to extract money as Pugree for vacating it. In this notice, the petitioner admits that the respondent No.3 had been residing in the disputed house, but he has now shifted from the place. Strangely, the date of shifting has not been given. Therefore, on the basis of this notice, it was not possible to give any finding in favour of the petitioner. The le8rned counsel contended that the Courts below have completely ignored this notice. While assessing the evidence of the parties, the Courts have taken into account the entire evidence produced on record and the result arrived at, is formulated on the assessment of all the documentary and oral evidence. In the present case, it was not possible to merely stick to this notice and completely ignore the oral evidence, which was very material to the issues involved in the suit, in this regard, the learned counsel for the respondent No. 3 has pointed out that the Court had framed an issue "Whether the plaintiff is entitled to the relief claimed and prayed by him under section 9 of the Specific Relief Act." According to him this issue would cover even the plea that the suit is not within time. From the perusal of the judgment it seems that the petitioner had not made this grievance at any level that issue of limitation had not been framed. The petitioner has not specifically stated in the written statement that the suit is barred by limitation. In fact the plea taken by the petitioner is that in February 1979, the respondent No.3 had voluntarily vacated the premises and was not dispossessed forcibly and therefore, the suit was liable to be dismissed. The plea is completely different from the plea that the suit is barred by time. Therefore, in these circumstances, the Courts have acted within the provision of law and have properly exercised their jurisdiction. Mr. Syed Madad Ally Shah, the learned counsel contended that the revision application has been dismissed holding that it was barred by time, as it had been filed after 59 days, or the passing of tree: or Dyer by the trial Court. Admittedly the finding of the learned appellate Court was completely erroneous. No period of limitation has been prescribed for filing a Revision Application and the observation of the appellate Court that it should have been filed within 30 days is completely without any basis. However, we find that Revision Application has not been dismissed, merely on this ground alone. The learned appellate Court has also taken into consideration the merits of the case and has agreed with the finding of the learned trial Court. Therefore, in these circumstances, we do not find any justification to interfere with the impugned judgment and the petition is dismissed. H . B . T . Petition dismissed.