1994 PLP 2037 (SCMR)

Izharul Haque, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner. Respondents in person. Date of hearing: 20th December, 1993. SAJJAD ALI SHAH, J.‑‑‑By this petition leave is sought to file appeal against judgment dated 14‑6‑1992, whereby Civil Revision No. 310‑1/85 filed by Ibrahim, predecessor‑in‑interest of respondents herein is allowed with special cost of Rs.5,000.

2. Briefly stated the relevant facts are that petitioner claims that Shop No. 10/176 was transferred to him vide P.T.O. dated 31‑12‑1959 and he filed case for eviction of Chiraghdin, who was in occupation of that shop. Rent Controller passed order of eviction on 14‑5‑1962 and after failure of Chiraghdin in higher forums, petitioner succeeded in ejecting him on 10‑10‑1967. On the other hand in Settlement Department, Deputy Settlement Commissioner observed in his order dated 20‑5‑1962 that P.T.O. of petitioner did not include shop in dispute which was to be auctioned. Petitioner agitated against. that older and Deputy Settlement Commissioner clarified in unequivocal terms in his order dated 11‑6‑1963 that petitioner was transferred only residential house No. 10/178 and three shops including the one in dispute were available for separate disposal. Appeal and revision filed in the Settlement Department were dismissed and finally petitioner filed Writ Petition No. 1097/R/64 in the High Court which was dismissed vide judgment dated 2‑4‑1965.

3. Ibrahim, whose L.Rs. are respondents before us now, purchased in auction disputed shop and subsequently P.T.O. and P.T.D. were issued in his favour. He claimed rent from Chiraghdin and after possession was taken over by the petitioner, Ibrahim filed suit on 28‑10‑1967 for declaration that he is rightful owner of the shop in dispute mentioning the facts in detail about dispossession of Chiraghdin from that shop by the petitioner. In the plaint restoration was claimed as consequential relief. Suit was decreed on 27‑2‑1975 and against that appeal filed was allowed on 1‑12‑1984 and in consequence suit was dismissed as not maintainable under section 42 of the Specific Relief Act. Against that decision revision was filed in the High Court, which is allowed vide judgment impugned in this petition. High Court has set aside the judgment and decree in appeal and restored the judgment and decree of trial Court. High Court has held that since possession has been claimed as consequential relief, court‑fees as payable on 'a suit for possession cannot be claimed.

4. Perusal of the plaint shows that prayer was made that order of Rent Controller in pursuance of which possession of the shop was delivered to the petitioner was questioned on the ground that it was against the law. Prayer is to be read in conjunction with contents of the plaint which indicate that petitioner Abdul Ghani had no right to execute order of eviction in 1967 when it was within his knowledge that shop in dispute was not included in his P.T.O. and against‑that finding he lost in all the forums in the Settlement Department and finally his writ petition was dismissed by, the High Court in 1965. Ibrahim produced orders Exhs. P‑1, P‑2 and P‑3 passed by officers of the Settlement Department and judgment of the High Court dated 2‑4‑1965. Record also shows that petitioner on one side in the Settlement Department pressed his claim against Ibrahim that shop was included in his P.T.O. and lost in all forums and on the other hand without divulging proceedings in the Settlement Department continued eviction proceedings against Chiraghdin in respect or disputed shop by suppressing the true facts and ultimately succeeded in obtaining eviction of Chiraghdin on 10‑10‑1967. In such circumstances petitioner continued possession of the disputed shop without entitlement for 25 years and has been rightly burdened with special cost of Rs.5,000 by the High Court.

5. For facts and reasons stated above, we are unable to find any flaw or legal infirmity in the judgment passed by the High Court to which no exception can be taken. In the result leave is refused and petition is dismissed which lacks merits. AA./A‑1106/S Petition dismissed.