1989 PLP 1164 (CLC)

This Civil Revision Application under section 115, C.P.C. is filed by the applicant defendant against the judgment and decree which was originally passed by the 2nd Senior Civil Judge, Hyderabad, and was upheld by the IVth Addl. Distt. Judge, Hyderabad on appeal. The following facts may be stated here which are necessary for the decision of this Revision Application. The respondent instituted Suit No.44/1975 in the Court of Senior Civil Judge, Hyderabad, alleging that he is the exclusive owner of house bearing No.G/2099, Yasrab Colony, Hyderabad and that the applicant is a trespasser in the premises. He also claimed possession of the premises besides mesne profits at the rate to be determined by the Court from 11‑9‑1968 till delivery of possession. The suit was resisted by the applicant and on the basis of controversy between the parties as many as nine issues were framed. They are as follows: (1) Whether the suit in its present form is maintainable? (2) Whether the plaintiff has no cause of action against the defendant? (3) Whether the suit has been properly valued and stamped? (4) Whether the defendant is entitled to special costs a/s. 35‑A, C.P. C.? (5) Whether the plaintiff is exclusive owner of the house in dispute? (6) Whether the plaintiff rented out the upper portion of the house in dispute to the defendant at Rs.200 per month excluding electric and gas charges? (7) Whether the plaintiff is entitled to mesne profits, if at what rate? (8) Whether the defendant is a trespasser? (9) What should the decree be? Learned trial Court after recording evidence of the parties decreed the suit of the plaintiff for possession as well as mesne profits but on appeal the learned first appellate Court only maintained the decree in so far it granted eviction of the applicant and reversed the decree granted for mesne profits. Mr. Zaki Muhammad, learned counsel for the applicant in this revision application has contended that the judgment and decree passed by the Courts below granting eviction of the applicant from the) premises is wholly without jurisdiction as in view of the statement contained in the judgment of the trial Court that issues Nos.2 to 61 were not pressed by the parties the learned trial Court could not have decided issue No.5 and granted a decree in favour of the respondent. It is also contended by the learned counsel for the applicant that suit could not be decreed by the trial Court in view of the admission of the respondent in cross‑examination that he is still treating the applicant as his tenant in the premises. The contention raised by the learned counsel for the applicant has no force. It is an admitted position in the case that prior to the institution of civil suit in the year 1975 for eviction and mesne profits, the respondent had instituted an ejectment case under the West Pakistan Urban Rent Restriction Ordinance 1959 against the appellant. In that case an order for deposit of rent was passed by the Rent Controller which was challenged by the applicant before the first appellate Court and) in that appeal it was held that no relationship of landlord and tenant existed between the parties. It was after the decision in the rent proceedings, where it was held that there was no relationship o1 landlord and tenant between the parties, that the respondent instituted suit for possession and mesne profits. He has described these earlier events in the plaint in detail and in the end prayed for relief of declaration of title, mesne profits and a decree for possession. In these circumstances, the contention of the learned counsel for the applicant that the respondent having admitted in cross‑examination that he still treated the applicant as tenant was of no avail as there was already adjudication on this point in appropriate proceedings and it was decided that the parties are not governed by the relationship) of landlord and tenant. The second contention of the learned counsel for the applicant in this revision application is that as issues Nos.i to 6 were dropped the learned trial Court was not entitled to record findings on issue No.5. It is true that in the judgment the learned trial Court has written that Issues Nos.2 to 6 were not pressed but it is equally clear from the judgment that immediately thereafter issue No.5 is mentioned and it is stated that it is held in the affirmative I have seen the issues framed by the Court in the case and I find that even on those issues the learned trial Court encircled those issues which were pressed before him. Apart from it there is nothing on record to show that the plaintiff gave up on issue No.5 or made any statement to the effect that issue No.5 may be dropped. Even otherwise issue No.5 was framed as a result of denial of the title by the applicant in his written statement and, therefore, the respondent, could not possibly be allowed to give up this issue unless it was consented to by the applicant. In these circumstances there is no significance for the observation of the learned trial Court in his judgment that issues 2 to 6 are dropped. The plaintiff /respondent had led evidence on issue No.5 with regard to its ownership and, therefore, the trial Court rightly decided this issue. The applicant did not step into the witness box nor he led any other evidence in the case and as such it could not be said that any prejudice was caused to the applicant by the decision on issue No.5 by the trial Court. Even otherwise, there was another issue framed in the case with regard to the possession and mesne profits and while deciding those issues the trial Court could have legitimately dealt with the validity of title of respondent in respect of the suit properly. The evidence on record fully supports the conclusion arrived at by the learned Courts below on issues No.5, 7, 8 and 9 and there is neither any misreading of evidence nor any perverse appreciation of evidence on record. No case for interference is made out. The Revision Application is accordingly dismissed. There will be no order at to costs. M.Z.S./S‑306/x. Revision dismissed.