2005 PLP 53 (YLR)

6. In support of their case, the plaintiffs examined (i) Muhammad Ishaque Farooqui, Assistant Mr .her of the plaintiffs, as Exh.5 who produced his affidavit in evidence as Exh.5/1 and photostat copies of various documents as Exh.5/2. to Exh.5/31, (ii) Shahpur Channa, Deputy Chief Executive of the plaintiffs as Exh.6, (iii) Qasim Rehman, Assistant Manager Marketing of the plaintiffs as Exh.7, (iv) Ashiq Ali, Marketing Service Officer of the plaintiffs as Exh.8. On the other hand, the defendants examined only one witness viz. Ali Mandviwala, one of the directors of the defendant-company.

7. I have heard Mr. Abbad-ul Hassnain, Advocate appearing on behalf of the plaintiffs and Mr. Tasawur Ali Hashmi learned counsel for the defendants.

8. Issue-wise findings are as under:-- ISSUE No. 1: The bare perusal of the relevant portion of section 9, Specific Relief Act, would clearly reveal that this provision of law consists of four ingredients; Firstly, the person suing must have been dispossessed. Secondly, such dispossession must be of immovable property. Thirdly, the dispossession should be without his consent. Fourthly, the dispossession should be otherwise than in due course of law. The above proposition is founded on established principles of law. In this context the case reported as Riaz and others v. Razi Muhammad 1982 SCMR 741 can be conveniently referred. In Late Mst. Majeedan through Legal Heirs and another v. Late Muhammad Naseem through Legal Heirs and another reported in 2001 SCMR 345 after surveying the entire case-law on the point, it was observed by the Apex Court as under:-- "A suit under section 9 of the Specific Relief Act is however, an entirely different kind of action. That section gives a specific privilege to person in possession who takes action promptly. In case they are dispossessed, it entitles them to succeed simply by proving (1) that they were in possession, (2) that they have been dispossessed by the defendant, (3) that the dispossession is not in accordance with law, and (4) that the dispossession took place within six months of the suit. No question of title either of the plaintiff or of the defendant can be raised or gene into that case." So far as the facts of instant case are concerned, the plaintiffs were in possession of the demised premises as a tenant. Admittedly they were dispossessed but not in consequence of legal proceedings. The case of the plaintiffs was that they were dispossessed without their consent, while the defendants pleaded that plaintiffs had consented and had voluntarily handed over the possession to the defendants. In the given circumstances, the burden was upon the defendants to positively prove that the possession was handed over to them by the plaintiffs voluntarily. To support this settled principle of law, reference can be made to the case of Ghulam Rasool v. Muhammad Waris Bismil 1995 SCMR 500 wherein it was held as under:-- "It may be observed that a tenant cannot be ejected by a landlord without having recourse to law. The appellant having admitted the status of the respondent as a tenant in respect of the shop, the burden was on him to show that the respondent had voluntarily handed over the possession of the shop to him, once the respondent having deposed on oath that he was forcibly dispossessed." Now it is to be examined as to whether the defendants have succeeded in proving this issue. It will be advantageous to reproduce the relevant portion from the evidence of the defendants' sole witness namely Ali Mandviwala. In his examination-in-chief he stated:-- "We had some negotiation with Mr. Shahpur Channa, Manager Marketing of plaintiff for vacating the premises in question. The plaintiff was asking some consideration for vacating the premises. The plaintiff's demand was of two millions. The plaintiff vacated the premises and demanded excess amount after vacating the premises. " He also deposed in the same examination in-chief:-- "The plaintiff has not handed over key of the premises in question. On account of differences between quantum of consideration that matter could not be settled between the parties ...." In the cross-examination he stated:-- "It is correct to suggest that Mr. Shahpur Channa, Marketing Manager of the plaintiff refused to vacate the premises in question and asked for alternate premises in the project to be constructed .... " "It is correct to suggest that through the said legal notice plaintiff had refused to hand over possession to defendant .." "It is also correct that police recovered a lock from the site ." "I cannot produce any evidence of the consent given by the plaintiff as the consent was given by the plaintiff on telephone." From the perusal of above evidence available on the record, it is explicitly and abundantly evident that the defendants have not been able to prove that the plaintiffs had given "consent" to vacate the premises in question. They have neither produced any documentary evidence to prove this issue, nor any witness was examined by them before whom any such consent was made by the plaintiffs. In the circumstances, there is no option except to hold that the plaintiffs have not vacated the suit premises voluntarily, and that they had not given any consent to that effect. The effect of the above findings would be that the plaintiffs were dispossessed without their consent. ISSUE No.2: In, view of the findings arrived on Issue No.1, Issue No.2 has been rendered inconsequential. Even otherwise it was hardly material for the purpose of adjudication of the controversy. ISSUE No.3: The upshot of the above discussion is that the plaintiffs are declared to have been dispossessed illegally. Consequently is is directed that the plaintiffs shall be re-inducted into possession forthwith. However, in view of the peculiar circumstances, there will be no order as to costs. H.B.T./P-17/K Suit decreed accordingly.