P L D 1959 (W (PLP)

FARUQUI, J.‑The appellant Muhammad Yunus brought a suit in the Court of the Joint Sub‑Judge, Hyderabad Sind (Suit No. 144 of 1953) for the ejectment of the present respondent Hafiz Muhammad Ismail from the premises bearing C. S. No. 446 in Ward D, Saraswati Street, Hyderabad and for arrears of rent and for compensation on account of certain damage and loss alleged to have been caused by Hafiz Muhammad Ismail, who was a tenant of the premises in suit. The premises of which Hafiz Muhammad Ismail was the tenant consisted of a shop, a residential house and a room on the first floor. The rent of the entire premises under the tenancy of the respondent Hafiz Muhammad Ismail was Rs. 60 per month which was upon an application by the aforesaid tenant to the Rent Controller reduced to Rs. 25 by an ex parte order and which was later in consequence of an order of the Provincial Government fixed at Rs. 40 per month. The appellant Haji Muhammad Yunus before he filed the suit out of which this appeal arises had also obtained a certificate from the Rent Controller entitling him to eject the tenant Hafiz Muhammad Ismail. The respondent who was the defendant in the first Court resisted the suit on various grounds on which the trial Court framed the following issues and gave the findings thereon as would appear below :‑ (1) Whether the property in suit was purchased by the plaintiff or he has succeeded it as an heir to Mst. Zainab? (2) Whether the suit is bad for non joinder of necessary parties? (3) Whether the rent certificate dated 25‑6‑53 is operative? If so, from which date? (4) Whether the plaintiff is entitled to recover the difference of rent from 17‑8‑1949 to 16‑11‑1950 at the rate of Rs. 15 per month amounting to Rs. 225? (5) Whether the plaintiff is entitled to realise rent at the rate of Rs. 40 per month from 17‑11‑1950 to 16‑11‑1951 totalling Rs. 480? (6) Whether the plaintiff is entitled to realise rent at the rate of Rs. 40 per month from 17‑11‑1951 to 31‑7‑1953 totalling Rs. 820. (7) Whether the defendant is liable to pay rent at the rate of Rs. 25 from 17‑11‑1950? (8) Whether notice under section 106, T. P. Act is operative and valid in law? (9) Whether the premises in dispute are required for bona fide personal use of the plaintiff and is he entitled to ejectment, if so, of what premises? (10) Whether any fan of the plaintiff was fitted in the ceiling of the house in dispute and the same has been removed by the defendant. If so, what is its price? (11) Whether the defendant has consumed electricity and made defaults in payment of the bills and if so, is the plaintiff entitled to recover Rs. 58‑12‑9? (12) Was the defendant tenant paying Rs. 60 per month and agreed to continue the payment and vacate the premises in case of non‑payment of rent? (13) Is the plaintiff entitled to recover Rs. 1948‑4‑3 (total) as in paras. 11 and 12 of the plaint? (14) Whether the suit is maintainable? (15) What should the decree be? Issue No. 1.‑Purchased the property. Issue No. 2.‑In the negative. Issue No. 3.‑Operative from 15‑6‑1953. Issue No. 4.‑In the negative. Issues Nos. S and 7.‑At the rate of Rs. 25 per month only. Issue No. 6.‑As under. Issue No. 8.‑In the affirmative. Issue No. 9.‑In the affirmative, entire premises except the shop. Issue No. 10.‑In the affirmative to the extent of Rs.

150. Issue No. 11.‑Not proved. Issue No. 12.‑In the negative. Issue No. 13.‑As under. Issue No. 14.‑In the affirmative. Issue No. 15.‑Suit decreed as under." Against the decree which was passed by the trial Court for ejectment, arrears of rent and compensation Hafiz Muhammad Ismail appealed to Mr. Ghulam Rasool K. Soomro District Judge, H3 derabad, who by his judgment dated 10th April 1956, set aside the judgment and decree of the trial Court, the effect of which was that the plaintiff's suit stood dismissed with costs. It is against this that the plaintiff Haji Muhammad Yunus as preferred this second appeal. It is not disputed that the property in respect of which the present suit was filed was at one time recorded in the survey records in the name of Mst. Zainab, the mother of the present appellant Haji Muhammad Yunus, who died before the institution of the present suit and also that formerly the rent receipts were issued to the tenant Hafiz Muhammad Ismail in the name of the said Mst. Zainab. The plaintiff Haji Muhammad Yunus had however pleaded in paras. 4 and 5 of his plaint that it was he who was the real owner of the property having purchased it from the former owner Bakhsh Ali Mehar Ali by a registered sale deed dated 30th January 1951 and that he had got the name of his mother entered in the city survey records only nominally and that the property after her death had been ordered to be mutated in favour of the plaintiff, and as such he was filing this suit in his capacity as a true owner. In para. 13 of the plaint the plaintiff pleaded as follows :‑ "The plaintiff had filed a suit against the defendant in the Sub‑Civil Court, Hyderabad which was withdrawn with the permission of the Hon'ble Court". To this plea the defendant replied in para. 13 of his written statement as follows :‑ "The plaintiff should produce the order of withdrawal with the permission to file fresh suit without which this suit is not maintainable." To the plea that the plaintiff was the true owner of the property, the defendant had replied in para. 4 of his written statement by stating that the premises in question were sold by Bakhsh Ali to Mst. Zainab and that the name of Mst. Zainab was entered in survey record and she used to realise rent from this defendant. In effect the claim of the plaintiff as being the true owner of the property was denied. In appeal the learned District Judge formulated two points upon which he disposed of the appeal. These were as follows :‑ "(1) Whether this suit is barred by operation of Order XXIII, Rule 1, C. P. C.? (2) Whether the suit premises belonged to Mst. Zainab and not to the respondent‑plaintiff, and if so, what is the effect?" Upon the first point the learned District Judge held that it was for the plaintiff to have produced the order of the Court allowing him to withdraw the previous suit and permitting him to file a fresh one and that as he had not done so in the trial Court his suit stood barred by operation of Order XXIII, Rule 1 (3), C. P. C. During the hearing of the appeal an application was made on behalf of the plaintiff who was the respondent before the District Judge praying that he should be allowed to produce the order of the Court whereby he had been allowed to withdraw the previous suit with permission to file afresh suit. This prayer was based upon the ground that in view of the fact that there was no specific denial in para. 3 of the written statement by the defendant of the fact of the withdrawal of the previous suit, the plaintiff was under a bona fide impression that the burden of proving that there was no such permission was upon the defendant. This application was rejected by the learned District Judge by his order dated 10‑4‑56 on the ground that it was for the plaintiff to produce this orders in the lower Court and that he having neglected to do so he would not allow him to produce this document in appeal. It appears to us that the learned District Judge was right in his view that the plaintiff having pleaded the fact of the institution of the previous suit would have to show that the same was withdrawn with the permission of the Court. At the same time having regard to the fact that there was no denial of the fact by the defendant, it may well have been that the plaintiff's counsel remained under a bona fide belief that it was not necessary for him to produce the order of the Court to that effect. This belief may have been mistaken but it must be remembered that the plaintiff-respondent before the learned District Judge was not seeking to produce a private document but an order of a competent Court which had in point of fact allowed the withdrawal of the suit. The position therefore was that the refusal to admit the certified copy of the order by the District Judge would result in the dismissal of a suit on the basis of a legal bar which in point of fact had been removed by an order of the Court itself. The plaintiff had brought a suit upon a cause of action which fully subsisted and the fact of the institution of the previous suit did not destroy the cause of action but merely stood as a technical bar in the absence of a permission of the Court which had not been produced in the first Court under a belief which may have been mistaken but which was bona fide. To have refused to admit the certified copy of the order was, in our opinion, a wrong exercise of the discretion by the learned District Judge. The duty of the Court is to do substantial justice between the parties and the procedure is to be used for the attainment of that object rather than to the denial of it. In our view there was no immoveable bar of procedure so as to justify the refusal to admit the document. There was substantial cause to allow the plaintiff‑respondent to produce the order of the Court and since this was not done by the learned District Judge we have ourselves allowed the order to be brought on record and exhibited in the case. The first point upon which the learned District Judge allowed the appeal and dismissed the plaintiff's suit therefore no longer exists. On the second point though the learned District Judge had framed an issue he declined to decide that question. This is what he said :‑ "For the purpose of this appeal therefore it is not necessary for me to go in details as to whether it was the respondent -plaintiff, who actually purchased the suit premises on 17th August 1949, or that her mother Mst. Zainab had purchased it or that Mst. Zainab was `Benami' and that her name was entered in the city survey as such. What I am to consider is whether Mst. Zainab was treated by appellant‑defendant to be the landlord and if so what rights accrued to the appellant -defendant from his relation as a tenant of hers and to what liability he would be subjected to. If therefore it be held that Mst. Zainab was the owner of the suit premises the appellant -defendant can only be ejected by her or her heirs, who step in her shoes and that he would be liable to pay rent to her or to her such heir and to no other." The learned District Judge then applied the principle of estoppel against Haji Muhammad Yunus, the plaintiff‑respondent before him, and held that he having by his act and declaration made the appellant‑defendant to believe that Mst. Zainab was the rightful owner of the property in suit will be estopped from turning round to claim that he was the true owner. Upon this point again it appears to us that the learned District Judge was clearly in error as there was no occasion in the circumstances of the case to apply the principle of estoppel. The principle which is incorporated in section 115 of the Evidence Act is a simple and equitable doctrine which lays down that if a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of another person, that other person will not be allowed in any suit or proceedings between himself and the other person or his representative to go back upon it to the detriment of the opposite party. The Privy Council said as far back as (1892) 19 I A p. 203 at p. 215 that:- "What the law and the Indian statute mainly regard is the position of the person who was induced to act; and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him that if another, by a representation made, or by conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his formal statement, to the loss and injury of the person who acted on it." In the present case, the doctrine of estoppel would be applicable if the plaintiff having allowed the defendant by his conduct or declaration to pay rent to Mst. Zainab had turned round to claim it over again from the defendant by alleging that he was the true owner and that Mst. Zainab was merely a Benamidar for him. There was nothing of the kind in this case. Here the plaintiff was claiming to be entitled to recover rent and compensation from the tenant and seeking to eject him on the ground that he was the true owner, and that Mst. Zainab was merely a Benamidar. It is, therefore, difficult to see how the doctrine of estoppel could stand in the way of such claim upon the facts of the present case. How has the defendant altered his position or acted to his detriment because of the representation act or omission of the plaintiff in allowing Mst. Zainab to be shown as the owner or the landlord of the premises in question? The only result of such conduct would have been that the plaintiff would have been bound by the acts of Mst. Zainab. We are, therefore, of the view that the learned District Judge should have decided issue No. 2, which he had framed viz. "Whether the suit premises belonged to Mst. Zainab and not to the respondent‑plaintiff, and if so, what is the effect? The trial of this issue would also involve an inquiry into the allegation that Mst. Zainab was a Benamidar for the plaintiff. We, therefore, remand this case to the District Judge to try the issue as stated above and we direct that opportunity shall be given to the parties to lead such additional evidence on this issue as might be relevant and shall return such evidence to this Court together with its findings thereon and the reasons thereof along with his findings on such other grounds of appeal which may be pressed before him at the hearing. The parties shall appear before the District Judge, Hyderabad, on Thursday, the 15th October 1959, and considering that this is an old case it shall be dealt with all possible speed. The judgment and decree of the learned District Judge is set aside. Costs in this appeal shall abide the ultimate result. K. B. A. Case remanded.