P L D 1969 Karachi 78 (PLP)

I regret to say that this simple matter has been, and is further likely to be, prolonged unnecessarily due to the error of an Additional District Judge in misconceiving the nature of the suit brought by the respondent. The dispute between the parties relates to a barber shop on Plot No. LY 12/8/K‑5/84 (VI)‑B 193/A. 3 situated on D. D. Choudhry Road, Lyari Quarters Karachi. On 28‑9‑60 the respondent brought a suit claiming that he was the owner of the said barber shop, which was run by the present appellant as his servant; that the property in which the shop was situated vested in the Custodian of Evacuee Property, to whom the respondent had been duly paying rent; and that the appellant had been running the shop on respondent's behalf and paying to the respondent Rs. 5 to 10 daily after deducting from the gross earnings his own salary. It was then alleged that the property in which the said shop is situated was transferred to one Chiraghdin under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that on or about the 14th July 1960, the appellant refused to pay to the respondent the daily earnings of the shop and set up his own title as owner of the shop and commenced paying rent thereof to the transferee. The respondent, therefore, prayed for restoration of the said shop together with the movables lying therein. The appellant's defence was that this shop had been purchased by him on goodwill of Rs. 2,000 from the respondent, though the rent receipts had continued to be issued by the Department of the Custodian in the respondent's name, but it had been stipulated between the parties that the rent receipt will be changed in the appellant's favour as and when the property was transferred under the Settlement Schemes.

2. On the above pleadings the trial Court settled the following issues:‑ "(1) Whether the plaintiff is the owner of the shop? (2) Whether or not the defendant is the owner of the shop? (3) Whether the defendant was a servant of the plaintiff? (4) Whether or not the defendant is in unlawful possession of the shop? (5) To what relief the plaintiff is entitled to? (6) to the suit maintainable as framed? (7) Whether the suit is properly valued and proper Court‑fee pad thereon ?" After the recording of evidence, a decree was given in the respondent's favour, which decree the appellant challenged in a first appeal before the Additional District Judge. When the appeal came up for hearing before this learned Judge, he tools the view that the trial Court had erroneously proceeded with the suit as one based on the title of the respondent as owner and that the correct procedure should have been to proceed under section H of the Specific Relief Act. With these observations, the case was remanded to the Court of the first instance for a fresh trial with the direction that the suit should proceed on the following issues: (1) Whether the plaintiff was in possession of the shop within six months prior to the institution of the suit? (2) Whether the plaintiff was dispossessed of the immovable property without his consent otherwise than in due course of law ? (3) Whether the plaintiff was entitled to the possession of the movable mentioned in the Schedule?" Accordingly the trial Court, adopted these issues together with the following further issues: (4) Is the suit not maintainable? (5) Whether the suit is not undervalued? (6) To what relief, the plaintiff is entitled?" It may here be noted shat when the suit came back to the trial Court on remand, the respondent dropped his prayer for restoration of the movables lying in the said shop and amended his plaint accordingly. By judgment dated 2‑2‑65, the trial Court again decreed the suit in the respondent's favour on the basis of his possessory title under section 9 of the Specific Relief Act.

3. It is the judgment dated 2‑2‑65 of the trial Court against which the present revision petition is directed. The appellant's contention is that on the admitted facts, the respondent's suit could not be treated as one under section 9 of the Specific Relief Act. These admitted facts are that the respondent himself let the appellant into the possession of the shop, and the latter, in his turn, conducted the business of the shop and paid Rs. 5 to 10 daily to the respondent after deducting from the gross earnings his own remunerations. It was subsequently, in July 1960, according to the respondents, that the appellant set up his title as proprietor of the shop and entered into a direct relationship of landlord and tenant with the transferee, namely Chiraghdin. The question which, therefore, requires considera tion is whether on these facts a suit under section 9 of the Specific Relief Act could be brought by the respondent. Section 9 provides a summary procedure for grant of relief to persons dispossessed from immovable properties without their consent. The purpose of this section is to discourage forcible dispossession. In my opinion, where there has been no forcible dispossession, section 9 of the Specific Relief Act would not apply. The cases in which this section comes into operation are those where the plaintiffs are deprived of the actual physical possession of the immovable properties. In other words, before a person can come under section 9, he has to show that he had actual physical possession of the immovable property from which he was dispossessed without his consent by the defendant within 6 months prior to the institution of the suit. This was the rule laid down by the High Court of Calcutta in Sona Mia v. P C Bhattachariya (A I R 1940 Cal. 464). This decision itself proceeded on the earlier decisions of the same Court reported as Tarint Mohun Majumdar v. Gunga Prosad ((1887)14 Cal. 649), Sonaton Shome v. Sheikh Helim ((1902) 6 C W N 616), and Nobin Das v. Kailash Chandra ((1910) 12 C L J 483). The High Court of Allahabad also held in Baldevdas v. Mangi Ram (20 All. W N 7), that section 9 of the Specific Relief Act would not apply to a case where the plaintiff had himself let the defendant into possession and the defendants had subsequently done acts indicating his intention to interfere with the plaintiff's proprietary rights.

4. The original plaint brought by the respondent was itself not a plaint under section 9 of the Specific Relief Act. The plaintiff had based his case on his title as proprietor of the shop, that is, lessee of the shop and owner of its business, goodwill and movables articles lying therein. A mere reading of the original plaint itself would show that the plaintiff's case was not at all under section 9 of the Specific Relief Act. The issues which were settled by the trial Court, noted above, were also on the assumption that the cause of action for the suit was the respondent's claim to be the owner of the shop, and not dispossession within the meaning of section 9 of the Specific Relief Act. From the judgment dated 30th October 1963 of the Additional District Judge in the 1st Appeal preferred by the present appellant, it would appear that the respondent's counsel made a statement at the Bar that the suit was under section 9 of the Specific Relief Act, though the appellant contended that the suit was based on title and not on dispossession. Without caring to look at the plaint itself, the learned Additional District Judge treated the suit as one under section 9 of the Specific Relief Act, and remanded the case to the Court of first instance on the ground that this Court had erroneously proceeded on the assumption that the respondent's cause of action was based on his claim as owner of the shop. There was no material on record at all to justify this conclusion of the learned Additional District Judge. Moreover, the final order which the learned Judge made for the remand of the case was inconsistent with his finding that the suit had been brought under section 9 of the Specific Relief Act, because if it was so, the appeal itself should have been dismissed as not being maintainable, but instead of proceeding to make an order to this effect, the learned Additional District Judge exercised the jurisdiction of the Appellate Court and remanded the case to the trial Court for disposal of the suit on the basis of the possessory title of the respondent.

5. In my opinion, the Additional District Judge order dated 30th October 1963 cannot at all be sustained. On the admitted facts, it was not open to the respondent to invoke the provisions of section 9 of the Specific Relief Act, and it must be said that the respondent, in fact, did not originally come under this section but based the suit on his title as owner of the shop and the movables lying therein. Even in the amended plaint, which had been filed as a result of the order of remand, the respondent's case was not that he had been deprived of the actual physical possession of the shop. His contention was that he, having let the appellant into the shop in question as the respondent's servant, the appellant had started setting up his own title as owner of the shop. The rule is new well‑established that where allegation in a plaint are those of ownership, no decree can be passed under section 9 of the Specific Relief Act. In this connection reference may be made to Mat. Jaina and others v. Hassan and another (P L D 1963 Kar. 351), Lachman Singh v. Shambhu Narain ((1911) I L R 33 All. 174) and Halim Yasin v. Mustakim Alaf Din (A I R 1942 Pesh. 8).

6. The question now is as to how the present petition should be disposed of. I have to agree with Mr. Ahmad Saeed, the appellant's learned Advocate, that the trial Court was not competent to pass a decree under section 9 of the Specific Relief Act. But this decree was passed due to the error of the Additional District Judge in misconceiving the nature of the suit brought by the respondent. If, therefore, the trial Court's decree is set aside and the suit is dismissed, the respondent will be prejudiced for no fault of his own. On the other hand, if the case is remanded for disposal of the suit as one under section 8 of the Specific Relief Act, the proceedings will have to be gone over again as, in the first instance, the trial Court had itself proceeded with the suit under section 8 of the Specific Relief Act and passed a decree in accordance therewith. Therefore, even the remand of the suit will unnecessarily prolong the present pro ceedings. In my view, the advisable course would be to treat this revision application as directed not only against the judgment and decree of the trial Court dated 2‑2‑65, but also against the order of remand of the Additional District Judge dated 30th October 1963. But an objection may be raised that the revision against the order of the Additional District Judge is barred by limitation, but this delay can be condoned by me under section 5 of the Limitation Act and I accordingly do so. Even otherwise, this Court can suo motu exercise its revisional jurisdiction and set aside the Additional District Judge's order dated 30th October 1963.

7. It view of the above conclusions, the order of the Additional District Judge dated 30th October 1963, and the judgment and decree of the trial Court dated 2‑2‑65 are both set aside. The case will go back to the Additional District Judge, with the direction that the appellant's First Appeal No. 259/62, directed against the judgment and decree of the trial Court dated 31st July 1962, should be disposed of on merits and the suit of the respondent should be treated as one under sections 8 and 10 of the Specific Relief Act. In the circumstances of the case, each party is left to bear its own costs. A. E. Case remanded.