2009 PLP 1388 (CLC)

SYED YAHYA ZAHID GILANI, J.

Respondent-plaintiff Amir Jan succeeded in the trial Court to get a decree for possession under section 9 of the Specific Relief Act as well as a decree for mesne profit at a rate of Rs.4,000 per year vide judgment dated 23-4-2004. The appeal against this judgment and decree was dismissed by learned Additional District Judge-I, Lakki Marwat vide his judgment dated 21-9-2004. Both the judgments and decrees of trial and Appellate Court were then challenged in Civil Revision No.333 of 2004 filed in this Court wherein it was decided, vide judgment, dated 5-5-2005, that the Appellate Court should have first decided the nature of the suit that whether it is falling under section 8 or section 9 of the Specific Relief Act qua the right to invoke the upper forum in appellate or revisional jurisdiction. Hence, the case was remanded with the directions to decide the maintainability of appeal or its conversion into revision petition, accordingly.

2. The matter was again heard by learned Additional District Judge-I, Lakki Marwat on revival of the Civil Appeal of the parties bearing No.106/13 of 2005. He, vide judgment, dated 873-2007, held that mere addition of an ancillary relief of mesne profit has not changed the nature of suit clearly filed under section 9 of the Specific Relief Act and hence, the revision petition would lie. So, the appeal was dismissed.

3. Now the parties are again before this Court in revisional jurisdiction which has been invoked by the defendants who are petitioners herein.

4. I have availed the opportunity of listening arguments of Mr. Gauhar Zaman, Advocate for the petitioners and Mr. Salimullah Khan Ranazai, Advocate for the respondent.

5. The moot question before me was that whether a suit filed under section 9 of the Specific Relief Act can accommodate an ancillary relief for mesne profit without changing the nature of suit and the forum of next remedy of appeal/revision.

6. We need not indulge in lengthy discussion on this point because the proposition has been settled long ago. This question was directly involved in the case of Foujmal Manaji v. Bikhibai and another AIR 1937 Sindh 161 wherein it is clearly held that section 9 of the Specific Relief Act provides a special and comparatively summary remedy for a person dispossessed without his consent and the section relates only to possession. Hence, under this section, a suit for mesne profit will not lie.

7. Needless to mention that right to recover mesne profit involves determination of right to possess property under a valid title and earn profits from it and this is a trite proposition of law that question of title cannot be looked into under a suit for recovery of possession under section 9 of the Specific Relief Act, whereunder a plaintiff can be held entitled to a decree for possession simply on the ground that he was in possession and dispossessed within six months of the institution of suit unlawfully, without any reference to his title. In this respect, the law has been interpreted in the judgment of Honourable apex Court delivered in the case of late Mst. Majeedan through Legal Heirs v. late Muhammad Nasim through Legal Heirs 2001 SCMR 345(b).

8. So, answer to the aforementioned moot question is very simple that a decree for mesne profit cannot be claimed in a suit instituted under section 9 of the Specific Relief Act. If a plaintiff insists to add and continue with the prayer for mesne profit, then he shall have to declare that his suit is for possession under section 8 of the Specific Relief Act. In this view of the matter, the present suit having been instituted under wrong impression or improper legal advice to include the relief of mesne profit, the whole dispute between the parties cannot be resolved unless the plaintiff-respondent exercises his right of choice to declare that he wants his suit to be treated under section 9 or 8 of the Specific Relief Act. This exercise of right of choice is being extended under the principles of natural justice and propriety because the plaintiff-respondent was not legal expert and he was not responsible for choosing the wrong format of his suit, and further that he cannot be held responsible for the improper advice of his counsel. Now, after dismissal of the appeal, the decree of trial Court is still intact which is not strictly in accordance with law, as discussed above.

9. I, therefore, accept this revision petition set aside the impugned decree of the trial Court and remand the case to trial Court with the directions that the plaintiff be offered opportunity to exercise the option by way of amendment in the plaint to bring his suit either in the category of suits under section 9 or section 8 of the Specific Relief Act, subject to payment of appropriate cost, and thereafter the suit be decided afresh in accordance with law. H.B.T./166/P Case remanded.