P L D 1954 Sind 197 (PLP)

Constantine, C. J.‑In October 1952, one Muhammad Afzal filed Suit No. 1266/53 for Rs. 2,000 in the Karachi Small Causes Court, against Shamsuddin the applicant in this Revision Application. Attachment before judgment was allowed and the shop was sealed. On 3rd January 1953, the first Opponent in this revision application 125/1953 as landlord filed D. W. proceedings 31/53 against the applicant Shamsuddin for rent, and on 7th January 1953, the bailiff in the D. W. proceedings went to distrain the goods, and on the bailiff's report that the pro perty was already attached in suit 1266/53 and upon the landlord's application a note was made in the proceedings under the Distress warrant that the premises were already subject to prior attachment in the suit. Later Shamsuddin gave security in the suit and the prior attachment was raised, but the property sold was in the D. W. proceedings on 16th February, 1953. On that date Shamsuddin was absent and on the next day it is the case of Yunus the second opponent in this Revision application that he went into possession as tenant of the land lord Abdul. Later on the same day, the 17th, Shamsuddin applied to the Court that his goods worth Rs. 800 had been Rs. 5 and prayed for possession of the shop. The Court ordered the releasing of the premises on the 19th. Hence an application No. 27/53 by Yunus to revise this order of the Small Causes Court, and in that revision application was an application under section

151. C. P. C. Upon this latter application which was heard by a bench consisting of myself and Mr. Justice Vellani on the 8th September 1953 we stated that the bailiff should not have left the premises open for any one to walk in, and that the Small Causes Court realised that the bailiff had acted illegally and so corrected the bailiff's illegal act by ordering the shop to be re‑sealed. Revision Application 125/53 has been filed by Shamsuddin because the Small Causes Court ordered that the premises should remain sealed pending the decision of the Chief Court. The sealing of premises in D. W. proceedings appears to proceed on the ground of convenience. The goods to be distraned cannot be taken at once to the Court, if at all, and hence the practice of sealing the premises is that the goods will remain intact therein, has arisen. I make no comment upon the legality or otherwise, this proceeding. It is, however, clear that the premises are in custodia legis and secondly that the premises themselves are not liable to sale in the D. W. proceedings, and that the Court's duty is to restore possession of the premises when the necessity for sealing has passed to the person from whom the Court has taken possession. Mr. Umar Khan has argued that as soon as the goods are sold, the premises must be unsealed and if the person from whose possession the premises had been taken is not present, then any one can walk in and that it is not the concern of the Court to ascertain as to who then goes into possession. I think this argument is thoroughly unjustified. The Court obviously should hand over possession to the person from whom it took possession. It is argued for Mr. Yunus that whatever the correct order of the Court should have been or the correct procedure of the Court's bailiff, yet in fact he went into possession and cannot now be disturbed by means of a suit. To this the answer is that the premises were in custodia legis in D. W. proceedings to which the landlord was a party. It is Yunus's case that he was let into possession by the landlord and he is therefore, claiming under the landlord, and I do not think that he has any right to possession higher than that of the landlord. The landlord being party to the proceedings, the Court had power to determine as between the landlord and Shamsuddin to whom the possession should be given. Mr. Umar Khan's further argument was that D. W. proceedings ended as soon as the auction of the goods had finished. That also, I think, is untenable. It seems clear that since the sealing of the premises occurred in the D. W. pro ceedings, therefore the question as to whom possession should be restored after unsealing the premises also arises in the same proceedings. The learned Chief judge in his order stated in the absence of the tenant Shamsuddin after the auction, the only procedure left to the officers of this Court was to leave the premises open. I must emphatically state that this is not a correct proposition. The Court's duty is to restore possession to the person from whom possession was taken. It may happen in some cases that a tenant has gone away. In those cases the landlord would be entitled to apply to the Court and the Court presumably would be justified in giving possession to the landlord on a suitable undertaking to give possession to the tenant if he reappears and if tenancy rights are still unimpaired. The result is that the Revision Application 125/53 is allowed with costs and Revision Application 27/53 dismissed with costs. The premises in dispute should be given into the possession of Shamsuddin. A. H. Ordered accordingly.