1988 PLP 1371 (MLD)

This Revision is directed against the judgments/orders dated 11‑10‑1976 and dated 18‑4‑1981 passed by the learned XVII Civil Judge at Karachi and V Additional District Judge, Karachi in Suit No.1884 of 1974 and Civil Appeal No.444 of 1976 respectively.

2. The brief facts leading to the filing of the above Revision are that Respondent No.1 filed suit against Islamuddin and Respondents 2 to 4 under Section 9 of the Specified Relief Act, hereinafter referred to as the Act for restoration of the possession of shop, bearing ko.21‑A/14, situated at 5‑G Kali Market, New Karachi. It appears that the defendant No.1 i.e. the present applicant was declared ex parte on 12‑12‑1975. His application under Order IX, Rule 6, C.P.C. was dismissed. After that the learned trial Court on the basis of the affidavit in ex parte proof decreed the suit by the judgment/decree dated 11‑10‑1976. Against the above judgment and decree present applicant filed Civil Appeal No.444 of 1976 which was dismissed on the ground that the same was not competent in view of the express bar contained in Section 9 of the Act. The applicants who are the legal heirs of the original defendant No.1 being aggrieved by the above judgments have filed the present Revision.

3. In support of the above Revision Mr.Aziz Urfi learned counsel for the petitioners has urged as follows:‑ ' (i) That the appeal was competent under Order 41 Rule 1, C.P.C. as the judgment/decree dated i1‑10‑1976 was not in fact a decree in terms of section 9 of the Act. (ii) That even otherwise this Court can interfere with the Judgment /decree, of the trial Court in exercise of revisional jurisdiction as it had not touched upon the four ingredients of section 9 of the Act. On the other hand Mr.Mushtaq Ahmad Riazi learned counsel for respondent No.1 has submitted as under:‑ (i) That in view of the express bar contained in section 9 of the Act, provisions of Order XLIII, Rule 1 cannot be pressed into service. (ii) That there. is no error in the judgment of the trial Court as to attract the provisions of section 115, C P C, of which scope is limited.

4. Adverting to the first submission, it may be advantageous to reproduce Section 9 of the Act which reads as follows:‑ "

9. If any person is dispossessed without his consent of immovable property than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this section shall be brought against the Central Government or any Provincial Government. No appeal shall lie from any order or decree passed is any suit instituted under this section, nor shall any review of any such order or decree be allowed. A perusal of the above quoted section indicates that the last proviso to the section expressly bars any appeal against any order or decree in any suit instituted under the section and so also the review. I am inclined to hold that in presence of the above express bar, the provisions of Order XLIII, Rule 1, C P C could not have been pressed into service as admittedly the judgment/decree was passed by the learned trial Court in a suit filed under section 9 of the Act. Even if we were to treat the above judgment/decree as an order, the appeal is still barred. In this view of the matter the learned Additional District Judge was justified in holding that the appeal was not competent.

5. As regards the second submission that even otherwise this Court can interfere with the judgment/decree of the trial Court in exercise of revisional jurisdiction as it had failed to comply with the requirement of section 9 by not dilating upon the four ingredients, at may be observed that in support thereof Mr.Aziz Urfi has referred to the following cases:‑ (i) Mst.Jaina and others v. Hasan and another P L D 2963 (W.P.) Karachi 351, in which a learned Single Judge of the erstwhile High Court of West Pakistan held that since the allegations in plaint were based on ownership, the suit was not side the scope of section 9 of the Act. (ii) Riaz and others v. Razi Muhammad 1982 S C M R

741. In the above case the Hon'ble Supreme Court while dismissing the appeal against the judgment of a learned Single Judge of the Lahore High Court held that the provisions of section 9 of the Act has four ingredients namely, (i) person suing must have been dispossessed, (ii) such dispossession must be of immovable property, (iii) dispossession should be without consent and (iv) dispossession should be otherwise than in due course of law. It was also held in the above case that obtaining the possession by deceitful means will be dispossession in terms of section 9 of the Act.

6. In the present case though respondent No.1 had traced the history of his title but at the same time had pleaded dispossession from the shop without due process of law. The above averments contained in the plaint were reiterated the affidavit in ex parte proof. It cannot, therefore, be urged that the requirements of section 9 were not pleaded or were not present before the learned trial Court. In the absence of any evidence in rebuttal the evidence in ex parte proof could have been accepted by the trial Court which was done in the instant case. There seems to be no error of the nature as to attract revisional jurisdiction of this Court even if this revision is to be treated against the original judgment/decree.

7. It was then contended by Mr.Urfi that respondent No.1 has referred to certain documents in his plaint and had in fact also filed one document alongwith the affidavit in ex parte proof and, therefore, the suit was in fact based on documents and not dispossession and hence the suit was not covered by section

9. The above argument seems to be somewhat ingenious. A party can file a document to show his possession on a particular date or to show his dispossession. The suit was based on the allegations of illegal dispossession from the immovable property without recourse to law. In my view reference to any document in that context either in the plaint or in the affidavit in ex parte proof I ' could not change the nature of the suit.

8. The above revision has no merits and, therefore, it is dismissed but there will be no order as to costs. H.B.T./1‑48/K Revision dismissed.