2007 PLP 1654 (CLC)

SALIM KHAN, J.

Miraan Bukhsh and Fazal Ahmad son of Muhammad Hussain instituted suit against Muhammad Ayub son of Muhammad Hussain, Wajid Ali and Mst. Nargas, daughter of Abdul Kareem (the present petitioner). It was alleged that the rent deed dated 12-5-1991 by defendant No.1 in favour of defendant No.3 was fictitious, fake and collusive and was ineffective on the rights of the plaintiffs and defendant No.1. The other prayer was for dispossession of the defendants from the suit house with further prayer for recovery of compensation for use of the said house from May, 1991 onwards by the defendants at the rate of Rs.700 per month. The defendant contested the suit. The contention of defendants Nos.1 and 2 was that defendant No.2, as attorney of defendant No.1, scribed the rent deed in favour of defendant No.3, and that defendant No. 1 had recovered from the illness and that defendant No.2 was maintaining the defendant No. 1.

2. The plea of the present petitioner was that she was the tenant of defendant No.1 (Muhammad Ayub deceased) through Wajid Ali defendant No.2 (the alleged attorney of defendant No. 1). After conducting the necessary proceedings, the learned Civil Judge, Peshawar, while deciding Suit No.179/1 of 26-6-2003 on 28-3-2005, granted decree in favour of the plaintiffs against the defendants regarding the declaration and dispossession of the defendants but dismissed the suit regarding recovery of the compensation amount. An appeal was filed by the present petitioner which was also dismissed by the learned Additional District Judge, Peshawar through judgment in Civil Appeal No.45/13, dated 4-2-2006. Hence this civil revision.

3. I heard the arguments of the learned counsel for the parties and perused the record.

4. The learned counsel for the petitioner contended that defendant No.1 was a lunatic but his guardian at litem was not appointed by the Court. The written statement of defendants Nos.1 and 2 shows that Muhammad Ayub, along with Wajid Ali, had submitted written statement wherein it was specifically mentioned that defendant No. 1 had recovered from his illness. The present petitioner did not stress during the proceedings in the original Court that defendant No.1 was a lunatic, she, rather, stressed that defendant No.1 had appointed defendant No.2 as his attorney, who had entered into agreement with defendant No.3 (now petitioner) regarding tenancy. It is worth-mentioning at this stage that the original rent deed was never produced by the present petitioner at the time of recording of evidence and the same was not proved.

5. The learned counsel for the petitioner contended that a further Issue No.3-A was framed regarding the possession of the suit premises, but no opportunity was given to the parties to produce evidence regarding the same. That issue was regarding prayer No.2 mentioned in the plaint itself, which was duly replied by the defendants. The parties fully knew their respective cases. The framing of the Issue No.3-A specifically was required by the learned original Court for more clarity of the judgment. Issue No.3-A was to the effect that whether the plaintiff was entitled to decree for recovery as prayed for while Issue No.2 was to the effect that whether the plaintiff was entitled for decree/declaration as prayed for. The word "declaration" is overwritten in this issue. Without this word, the wording would be "for decree as prayed for" and would include Issue No.3-A also. The insertion of the said word necessitated the framing of Issue No.3 specifically for further clarity. There was no need to allow further evidence in the light of the knowledge of the parties regarding their cases.

6. The learned counsel for the petitioner further contended that the learned Civil Court had no jurisdiction as the matter related to ejechnent of a tenant and regarding rent. He could not be able to show me that any relationship of landlord was either claimed or admitted between the parties. It was not a case of a landlord against a tenant, rather a case by the owners against a trespasser. The learned original Court, therefore, had jurisdiction regarding the same.

7. The learned counsel for the petitioner further contended that Muhammad Ayub, a lunatic, was unable to contest the case, end decree against him was nullity in the eyes of law. Defendant No.2 and defendant No.3 were not his legal representatives. The two plaintiffs, however, were his legal representatives and they had the right to challenge the decree which they did not challenge and should have not challenged, because it was in their favour.

8. In the light of the above, I do not find any merit in the present) civil revision, and I dismiss the same with costs of litigation throughout to be paid by the present petitioner to the original plaintiffs. M.H./148/P Revision dismissed.