P (PLP)

Faizullah Khan instituted this suit against his brother Abdullah Khan under section 9 of the Specific Relief Act, for the possession of two rooms A and B in a house, situated in Dera Ismail Khan. He alleged in the plaint that be, his wife and children were in possession of these two rooms since a very, long time. He further alleged that on the 11th of July 1948, the defend ant in the absence of the plaintiff, had forcibly ejected his children and Wife, and that he should, therefore be put into possession under section 9 of the Specific Relief Act. The defendant denied the plaintiff's claim, and the learned trial Court‑framed the following three issue‑

1. Whether the plaintiff was forcibly dispossessed by the de fendant within six months prior to the institution of the suit?

2. Whether the suit was properly valued for purposes of. Court‑fee and jurisdiction?

3. Relief. The learned trial Court decided that the plaintiff lead bee, forcibly ejected from room marked A on the plain attached with the plaint, but he had not proved that lie had been forcibly ejected from room marked

73. He consequently decreed the plaintiffs claim with regard to the room marked A, and dismissed his suit in respect of the other room. He ordered the parties to bear their own costs. Against this decision the defendant has come up on revision. The learned counsel for the respondent has raised a preliminary objection that as a remedy byway of suit is open to the petitioner, therefore, this Court has no jurisdiction to entertain the revision petition, under section 34 of the N.‑W. F. P. Courts Regulation 1931. The concluding paragraph of section 9 of the Specific Relief Act provides that "no appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed''. The remedy by way of revision petition whether it be under section 115, Civil Procedure Code, or section 34 of the N.‑W. F. P. Courts Regulation, 1931, is conspicuous by its absence from this section. It, therefore, naturally follows that if the Legislature intended to bar the remedy by way of revision petition, it should have specifically mentioned it along with "appeal" and "review". Its very absence shows that the Legislature did not want to restrict the High Court's' power of supervision over the Courts trying suits under section 9 of the Specific Relief Act. The learned counsel for the respondent has not advanced any cogent reason as to why should a revision petition be rejected, simply because another remedy is open to the aggrieved party. The authorities on the point are very conflicting. In 30 Allahabad (I L R) page 331 (Jwala v. Ganga Parsad), following 10 Allahabad page 119, it was held that an application in revision in cases decided under section 9 of the Specific Relief Act was not a proper remedy for the aggrieved party. The learned judges, however, did not say that this remedy is absolutely barred. In 11 I C page 814 (Ram Kiskan Das v. Jai Kishan Das), their Lordships of the Division Bench of the. Allahabad High Court in a very short judgment held that the High Court would not interfere in revision with an order dismissing a suit under section 9 of the Specific Relief Act, as other remedy was open to the aggrieved party. The last authority on this view is a judgment of a Single Judge of the Rangoon High Court (Ukyawlu and another v. Ushweso), reported in 114 I.C page

543. The contrary view is taken in 1933 Peshawar.Law journal page 52 (Gopichand Singh and another v. Amir Chand and another) wherein it was held as under :‑ "Ordinarily the High Court does not interfere in revision in a matter where another remedy is available, but there is no hard and fast rule excluding the jurisdiction of the Court absolutely in such a case". In Suraj Bali Tewari v. Kandhaiya Bakhsh Singh and others, reported as A I R 1932 Oudh page 39, it was held that applications in revisions were not in definite terms barred by section 9, but they were not lightly to be entertained. In A I R ' 1939 Allahabad page 635 (Badrul Zaman and another v. Firm Haji Faiz Ullah Abdullah), a Division Bench of the Allahabad High Court held that the High Court was entitled under section 115 Civil Procedure Code to interfere in revision with a decision of the subordinate Court under section 9 of the Specific Relief Act. In my view if a revision satisfies the conditions laid down in section 34 of the N.‑W. F. P. Courts Regulation, 1931, it cannot be rejected merely because another remedy is open to the aggrieved party byway of suit. Consequently I overrule the preliminary objection. It has been argued by the learned counsel for the petitioner that there was no evidence on the record to show that the plaintiff was in possession of the room A, and was forcibly ejected by the defendant‑petitioner on the 11th of July 1948. On the other hand, the learned counsel for the respondent bases his argument on the statement of the defendant‑petitioner himself, given in Civil Suit No. 2/7 of 1948, Sadullah Khan and Faizullah Khan v. K. S. Abdullah Khan, wherein he stated as follows:‑-- "Petitioner No. 2 (Faizullah Khan) left the house in 1937 though one of his wives resided with me with his children until recently". Faizullah Khan entered the witness‑box in support of his case, and produced his sons Muhammad Ayaz, Ahmad Nawaz and Muhammad Hayat to corroborate his claim. Abdullah Khan went into the witness‑box and produced several witnesses to prove that Faizullah Khan was never in possession of the room in dispute, and was, therefore, not ejected forcibly. Faizullah Khan in his statement admitted that he had two, wives, one of whom was the mother' of Mohammad Ayaz P. W. and was living in the kotha in dispute, while the other was living in mohalla Hayatullah. It is, also, clear from his statement that he himself was living with his second Wife in mohalla Hayatullah. Mohammad Ayaz also stated that it was he and had his mother, who were forcibly ejected from the room in question and not the plaintiff. Under the circumstances I fail to see what cause of action the plaintiff had to institute a suit under section 9 of the Specific Relief Act. The proper person who should have instituted this suit was either Mohammad Ayaz or his mother: Even if Mohammad Ayaz and his mother were living in this house on behalf of the plaintiff, still the plaintiff, could only institute the suit if the persons actually disposed were not willing to sue. The principle laid down in A I R 1929 Bombay page 467 (Ratan Lal Ghelabhai v. Amar Singh Rup Singh and others) supports the above view. In any case there is no evidence on `the record to show that the plaintiff or his wife and children were dispossessed within six months of the institution of the suit. The, statement of the defendant‑petitioner on which the respondent's counsel bases his entire argument certainly does not prove that he was dispossessed on the 11th of July 1948. If Mohammad Ayaz and his mother were in fact ejected on that day, there is no reason why should a report have not been made in the Police Station. They kept quiet until the 20th of July 1948, when a complaint was made by Faizullah Khan in the Court of the City Magistrate, Dera Ismail Khan against abdullah Khan and his wife Mst. Noor Jehan Faizullah Khan, however, did not prosecute this complaint and permitted it to be dismissed in default, on the 11th of September, 1948. In the absence of any evidence to show that Faizullah Khan or his wife and children were ejected within six months of the institution of this suit, the learned trial Court has committed material irregularity in passing a decree under section 9 of the Specific Relief Act. I, therefore, accept the revision petition, and, setting aside the judgment and decree of the trial Court, dismiss the plaintiff's." suit with costs throughout. Orders announced. A. H.