1991 PLP 1046 (MLD)

S.9

Civil Procedure Code (V of 1908), S.115

Order or decree passed in suit under S.9, Specific Relief Act, 1877--Remedy

Where a person felt aggrieved by such decree or order his remedy would be by way of suit based on title

Court, would not, except in extreme cases, interfere by way of revision where separate remedy was available to person aggrieved. Madras 558, Bhojraj Krishnarao and another v. Sheshrao Diwakarrao and others A I R 1949 Nag. 126; Mot a and others v. Uda and others A I R 1950 Ajmer 6 (2) and Abdul Bari v. Arab Ali AIR 1953 Assam 158 rel. (c) Specific Relief Act (I of 1877)

S.42

Constitution of Pakistan (1973), Art.199

Constitutional jurisdiction, exercise of

High Court in Constitutional jurisdiction, would not decide disputed questions of fact, particularly when petitioner in spite of an adverse decision in suit under S.9, Specific Relief Act, 1877, could go to Civil Court to establish his title and to recover possession

Court below having not acted in excess or in absence of jurisdiction nor with material irregularity in exercise of its jurisdiction and there being adequate alternate remedy still available, High Court declined to interfere in Constitutional jurisdiction. Shaukat Ali Saqib for Petitioners. This is a petition under Article 199 of the Constitution against a decision of learned Additional District Judge, Faisalabad dated 21-11-1990 passed in revision, affirming the judgment of learned trial Court whereby it had decreed the suit filed under section 9 of Specific Relief Act, for possession of shop in favour of Muhammad Siddique respondent No.3 in this Court. Brief facts culminating in the present litigation shortly put are:--On 12-7-1977, respondent No.3 purchased 3 marlas of land in Chak No.197/G.B. Mamun Khanjun Road, Tehsil Samundri from Siraj Din petitioner. Soon thereafter, the purchaser constructed three shops on the area purchased by him with a Chaubara on two of them. Two shops were rented out to tenants and in the third, Mohammad Siddique and his sons ran a Hamam known as Shausia Sultania Garam Hamam. On 1-6-1986, petitioners aided by others forced their entry into the third shop and dispossessed Mohammad Siddique therefrom in defiance of law. On 26-7-1986, dispossessed Mohammad Siddique brought a civil suit under section 9 of the Specific Relief Act, for regaining possession of the shop of which he was illegally dispossessed by the petitioners. Petitioners resisted the suit on number of pleas. In result of a contested trial, the trial Court found that defendant/petitioners had dispossessed the plaintiff/respondent No.3 from the shop in his possession and directed its restoration of possession to him. Since no appeal lies from an order or decree passed in the suit under section 9 of the Specific Relief Act nor a review of them is allowed, the defendants in the suit preferred a revision in the Court of learned District Judge, Faisalabad which came to be heard by a learned Additional District Judge who agreeing with the trial Court on merits of the case, dismissed it on 21-11-1990. Thereafter, recourse was had to the Constitutional jurisdiction of this Court. It is urged that the impugned orders and decrees suffered from gross misreading of record and writ was the only appropriate remedy for setting aside of them. Section 9 of Specific Relief Act provides for a summary and quicker remedy to a person dispossessed from immovable property except in due process of law. Article 3 of Limitation Act, 1908 gave six months to the dispossessed person for suing to regain the possession. All that the Court can do in a civil suit filed under section 9 of Specific Relief Act is to restore possession of the immovable property to the person illegally dispossessed from it. Question of title to immovable property is foreign to an enquiry in section 9 suit. All that should be looked into in such a suit is previous possession of the plaintiff and his dispossession by the defendant, otherwise than in due course of law within six months of the suit brought and nothing more. Clear object behind section 9 is to discourage use of force for setting of civil disputes regarding possession of immovable property. In number of rulings from various High Courts it has been held that Specific Relief Act has provided a remedy for a person aggrieved by the order or decree passed in a suit under section 9 of that Act. His remedy is by way of a suit based on title and it is well-established that the Court does not except in a extreme case, interfere by way of revision where a separate remedy is available to the applicant. Some of those rulings in which the above view was expressed are reported in (Kanneganti) Ramamanemma v. (Kanneganti) Basavayya A I R 1934 Madras 558, Bhojraj Krishnarao and another v. Sheshrao Diwakarrao and others A I R 1949 Nagpur 126, Mota and others v. Uda and others A I R 1950 Ajmer 6 (2) and Abdul Bari v. Asrab Ali A I R 1953 Assam

158. Plaintiff gave evidence in proof of his previous possession and subsequent forcible dispossession at the instance of petitioners within six months before the suit and the petitioners produced evidence in it rebuttal. Trial Court resolved the conflict in favour of plaintiff and decreed his suit. Revisional Court did not interfere with the findings of fact recorded by the trial Court. Further, revision against the decision does not lie. Petition filed to challenge the decision raises extremely disputed questions of fact. Therefore, it is not proper for the High Court in a petition under Article 199 of the Constitution to decide the disputed questions, of fact, more particularly, when it is still open to the petitioners, in spite of an adverse decision in the suit under section 9, to go to a Civil Court to establish their title and to recover possession. Further, the Court below did not act in excess or in absence of jurisdiction nor did it act with material irregularity in exercise of its jurisdiction. Existence of an adequate alternate remedy in the shape of a civil suit to establish title and consequent recovery of possession is a sufficient circumstance to deny relief in equitable jurisdiction. Upon this view, interference is declined in limine, and, the petitioners are left to pursue their ordinary remedy at law. AA./S-861/L??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.