1986 PLP 2604 (CLC)

Khalid Latif for Appellant. Shamshad Larifor Respondents. Dates of hearing: 19th, 20th and 26th February, 1986. This second appeal under section 100, C . P. C . . is filed by the appellant against the two concurrent judgments of Courts below. The following facts may be stated here in brief which are relevant for the purposes of deciding the appeal. Respondent No.l instituted Suit No. 1780/70 in the Court of IIIrd Civil Judge, Ist Class, Karachi against appellant and Cantonment Board, praying for issue of permanent injunction against appellant restraining him from subletting, selling, mortgaging, submitting site plan, executing any lease deed or dealing in any manner with the property bearing No. 102/21, Nishtar Road, Dehli Colony, Karachi. After institution of the above suit the appellant also instituted Suit No. 1989/70 in the same Court against the respondents seeking declaration, injunction and cancellation of agreement of tenancy, dated 6‑8‑1969. Both the suits were consolidated and were disposed of by a common judgment, dated 31st May, 1975. Against judgment of trial Court only appellant filed first Appeal No.lll/75 which was dismissed by the Vth Additional District Judge, Karachi. The appellant has challenged the judgment of 1st appellate Court in this appeal. The appellant in Suit No 1989/90 alleged that the tenancy agreement, dated 6‑8‑1969 was executed by him in favour of respondent No.1 as a result of fraud and coercion on the part of respondent No.l. It was alleged in paragraph 12 of the plaint that respondent No.l had agreed not to eject the appellant from the premises and that the costs of construction valuing Rs.12,000 incurred by appellant will remain as a charge on the property. It was also alleged in the plaint that this agreement was brought about between the parties at the time when the premises was lying sealed under the orders of Court in proceedings under section 145, Cr.P.C. Both the Courts below after analysing the evidence led by the parties came to the conclusion that the appellant failed to establish that the agreement Exh.8 was executed as a result of coercion on the part of respondent No.l. They also held that the agreement was executed by the parties voluntarily of their own free will and that as a result of this agreement the pending proceedings under section 145, Cr.P.C, in the Court of S.D.M Karachi were compromised between the parties. Mr. Khalid Latif, learned counsel for the appellant contends that the inference drawn by the Courts below from the evidence in holding that the agreement Exh.8 was executed voluntarily is the result of misreading of evidence and is not supported by the evidence on record. The learned counsel contended that it is an admitted position on record that the agreement Exh.8 was executed by the appellant the time the premises was lying sealed and this fact alone was enough to conclude that the execution of agreement Exh.8 was not a voluntary act on the part of appellant. To support his contention' learned counsel referred to the case of Shaikh Muhammad Obaid v. Muhammad Rafi PLD 1959 Kar. 409 and Noor Muhammad v. Abdul Sattar PLD 1959 Kar.

348. In both the above‑mentioned cases, the matter was dealt with by the High Court in First Appeal under section 96 of the C.P.C. where both questions of law and facts were open to review by the First appellate authority. The learned Judges of the High Court in the above cases after reviewing the evidence recorded before the trial Court reached a contrary conclusion and accordingly upset the decision of trial Court. In the present case the matter before me is in second appeal where the scope of interference is limited to cases where the judgment is based on misreading of evidence, perverse reading of evidence or on no evidence. The argument advanced by the learned counsel for appellant before me raises no question of law but is principally based on question of appreciation of evidence. The Courts below in arriving at the conclusion that the document Exh.8 was executed voluntarily by the appellant took note of contents of notice (Exh.13) served by the appellants' Advocate on the respondent No. 1's Advocate in reply to letter's notice before institution of the suit and the statement made by the appellant in Court in the proceedings. In the notice (Exh.13j the appellant while replying to the notice of respondent stated that the matter regarding tenancy of the shop in suit between him and the respondent was settled as a result of intervention of the respectable persons of the locality and a settlement was arrived in this regard in the mosque which provided that respondent No. 1 will not eject the appellant and a sum of Rs.12, 000 will be paid to him if the respondent No. l required the premises. (the plaint of Suit No.1989/70 almost similar stand was taken by the appellant. However when the appellant stepped in the witness‑box, he changed the above stand and stated as follows in his examination in chief: ‑ "In June, 1969 I was taken to the Police Station by a Military man. The S.H.O. had me to execute the rent note in favour of Shaikh Jamilur Rehman, On my refusal, he had challaned me under section 107/117 and 145, Cr.P.C. My hotel was sealed by the order of the Court. I produce a certified copy of the report of S . H . 0 . and order of S . D . M . Civil Lines, as Exh .

39. I also produce a certified copy of application of Jamilur Rehman addressed to the Assistant Deputy Martial Law Administrator as Exh.40. I produce a certified copy of my written statement filed in 145, Cr.P.C. proceedings, as Exh.41. My shop remains closed for about 19 days. The S.D.M. had asked me to compromise the matter with Shaikh Jamilur Rehman and to execute the rent deed in his favour otherwise he shall send me behind the bars. Under his pressure I was compelled to compromise and execute the rent deed in favour of Shaikh Jamilur Rehman. I see Exh.8 and say that it is the same rent deed. The Exh.8 was brought by Shaikh Jamilur Rehman duly written and the S.D.M. asked me to sign on it which I did in his presence. Thereafter, Shahab Zada Fareeduddin Ahmed the S.H.O. of Frere Police Station compelled me to pay the rent to Shaikh Jamilur Rehman, for about 10 or 11 months till he remained there. Under his pressure, I paid the rent but stopped the payment as soon as he was transferred." The above‑quoted statement of appellant before the Court was a positive improvement which the Courts below rightly rejected being inconsistence with his earlier stand. On the other hand respondent No.l in support of his contention that the agreement Exh.8 was voluntarily executed by the appellant, examined himself and two other attesting witnesses of the document one of whom was a B.D. Member and they all fully supported respondent No.l. It may also be mentioned here that the appellant in his evidence took the plea that he was threatened by the S.H.O. of Free Police Station and so long that S.H.O. was posted there he continued to pay rent of the premises to respondent No.l. No such suggestion was made to respondent in cross‑examination when he was in the witness‑box. In this state of evidence, the inference drawn by the two Courts below has failed to establish fraud and coercion in relation to the execution of Exh. 8 and that he executed the agreement voluntarily is neither based on any misreading of evidence nor on perverse appreciation of evidence. Learned counsel for the appellant attempted to argue that the evidence on record show that the property was purchased by the respondent through Exh.6 which was inadmissible document and that there was other evidence to show that the structure on the plot was raised by the appellant from his own resources. All these contentions were fully considered by the first appellate Court and were repelled for reasons which are not only cogent but are also supported by the evidence on record. No case is made out for interference in this appeal which is accordingly dismissed but there will be no order as to costs., H . B . T . Appeal dismissed.