2014 Y L R 1893
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ
USMAN LTD. ---Appellant
Versus
LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY HUB
INDUSTRIAL TRADING ESTTAE HUB LASBELLA, through Chairman and 2 others ---
Respondents
R.F.A. No.28 of 2013, decided on 30th April, 2014.
(a) Specific Relief Act (I of 1877) ---
---Ss. 8 & 9 ---Suit for possession of immovable property ---Trial Court dismissed suit on the
point of limitation holding that same was file d under S. 9 of Specific Relief Act, 1877 ---Validity -
-Suit filed by the plaintiff would fall within the domain of S. 8 of Specific Relief Act, 1877 ---
Decree passed in a suit filed under S. 9 of Specific Relief Act, 1877 was not a bar to either party
for ma intaining a regular suit seeking possession by way of establishing a legal, valid and
competent title ---Impugned judgment and decree passed by the Trial Court were set aside and
case was remanded for decision afresh in accordance with law ---Appeal was acce pted in
circumstances.
(b) Specific Relief Act (I of 1877) ---
----S. 9---Summary suit for possession of immovable property --- Scope ---Summary procedure
was to be adopted by the Trial Court in case of dispossession of a plaintiff against his consent
and otherwise than due course of law within six months from filing of suit ---Right to seek
possession under S. 9 of Specific Relief Act, 1877 was subject to previous possession of plaintiff
irrespective of his title or entitlement of retaining possession on the basis of a valid, legal and
competent title ---Object behind S. 9 of Specific Relief Act, 1877 was to undo the phrase "Might
is right" and to provide speedy, simple, effective and efficacious remedy to an aggrieved party
and empowered and entitled the c ourt to redress a wrong immediately without observing the
protracted and lengthy procedure provided for a regular suit.
Nemo for Appellant.
Nemo for Respondents.
Date of hearing: 16th April, 2014.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the judgment and
decree dated 19th March, 2013 passed by the learned Senior Civil Judge, Hub District Lasbela
whereby the suit filed by the appellant/plaintiff was dismissed.
2. Facts relevant for the disposal of instan t appeal are that the plaintiff instituted a suit under
section -8 of the Specific Relief Act, 1877 for possession of Immoveable property known as Plot
No. C -386 Hite, in the Court of learned Senior Civil Judge, Hub. It was averred in the plaint that
the pl aintiff was allotted an Industrial Plot known as Plot No. C -386, situated at Hub Industrial
Trading Estate, Hub, District Lasbela measuring 7437.50 square meters; vide letter No.
LIEDA/H.I.T.092/061 dated 2nd March, 1992. It was further averred in the plai nt that the said
allotment was made in favour of the plaintiff for expansion of existing mills of the plaintiff
constructed on Plot Nos. C -242 to 249, C -260 to 267, admeasuring 22500 square meters and
Labour Colony of the mills on Plot Nos. C -356 to 374, a dmeasuring 6200 square meters. The
allotment so made was accepted by the plaintiff vide acceptance letter dated 8th March, 1992 and
in this regard a lease deed was signed by the parties followed by handing over possession of plot
in question to the plainti ff. Consequent upon taking possession, the plaintiff submitted a layout
plan to defendants Nos. 1 and 2, besides payment of all the dues including cost of the land,
premium thereon and ground rents. On 30th September, 2005 the plaintiff requested the
defen dants Nos. 1 and 2, for merger of Plot No. C -386 with adjacent Plot No. C -242. In October,
2005 the defendant No.3 approached the plaintiff for purchase of Plot No. C -386. Since the
plaintiff had already opened the letters of credit for the import of machi nery for expansion of his
textile mills, therefore, it refused to alienate his rights and interest in the said Plot. Thereafter the
plaintiff came to know that the allotment of said Plot in favour of the plaintiff has been
cancelled.
3. After entertainin g suit the trial Court issued notice to the respondents in response whereof
the defendants filed joint written statement wherein besides raising certain preliminary legal
objections claim of the plaintiff was refuted on merits as well. The trial Court, out of the
pleadings of the parties framed following issues for determination: --
(i) Whether the suit of plaintiff is not maintainable in view of preliminary legal objections
raised by the defendants in their written statements?
(ii) Whether the Plot No. C-386 HITE has been cancelled illegally and the plaintiff was also
dispossessed unlawfully?
(iii) Whether possession of the suit land may be restored and the plaintiff is entitled of
damages of Rs. 200 Millions?
(iv) Whether the plaintiff is entitled t o relief claimed for?
(v) Relief.
4. Thereafter, the parties were directed to adduce evidence in support of their respective
claims whereupon the plaintiff adduced two P.Ws. and the representative of the plaintiff also got
recorded his statement. In re buttal the defendant produced three D.Ws. and representative of
defendant No. 3 entered the witness box. The learned trial Court after hearing the parties and
evaluating the evidence decreed the suit filed by the plaintiff vide judgment/decree dated 30th
September, 2011. Feeling aggrieved and dissatisfied of the above referred judgment/ decree the
respondent preferred an Appeal No.69 of 2012 before this Court which was allowed and the case
was remanded back to the trial Court with direction to frame issue o f Limitation. After remand
the learned trial Court framed following issues for determination: --
(i) Whether the suit of plaintiff is hopelessly time -barred?
(ii) Whether the suit is not maintainable as the same has been filed without proper authority?
(iii) Whether the Plot No. 386, situated at Industrial Trading Estate Hub was allotted to
Plaintiff, subject to the condition of setting up Industrial undertaking.
(iv) Whether the allotment of disputed plot has been cancelled illegally and unlawfully.
(v) Whether the plaintiff was forcibly dispossessed from the said plot and the same was
illegally handed over to defendant No. 3.
(vi) Whether the plaintiff is entitled for re lief claimed?
(vii) Relief.
Thereafter, the trial Court heard arguments of both the parties on the point of Limitation
and eventually vide judgment and decree dated 19th March, 2013 dismissed the suit, hence
instant appeal.
5. Learned counsel for t he appellant submitted that the trial Court committed material
irregularity in dismissing the suit by holding it barred by time. The learned counsel maintained
that as the suit filed by the plaintiff was under section 8 of the Specific Relief Act, therefor e, the
trial Court had no jurisdiction to treat the suit under section 9 of the Specific Relief Act.
According to learned counsel the appellant/plaintiff has sought cancellation of the allotment
issued in favour of respondent with consequential relief of p ossession. The learned counsel
invited our attention to the title and prayer clause of the suit and emphasized that the suit could
not have been dismissed on the point of limitation as no suit was filed under section -9 of the
Specific Relief Act.
Mr. Sa rwar Awan Advocate for respondent No. 1 and Messrs Munawar Ghani and Ayaz
Zahoor Advocates for respondent No. 3 vehemently opposed the submissions by maintaining
that the suit filed by the plaintiff was obviously within the domain of section 9 of the Speci fic
Relief Act. According to learned counsel for the respondents the contents of the plaint leave no
room for doubt that the relief of possession has been sought on the ground of illegal
dispossession of the appellant against his consent and otherwise than due course of law. It was
urged with vehemence that the suit under section 9 being barred by time was rightly dismissed.
The learned counsel maintained that legally an incompetent suit must be buried at its very
inception and this is the second round of a n incompetent suit before this court, therefore, the
appeal is liable to be dismissed.
6. We have considered the arguments advanced by learned counsel for the parties and
perused record of the case. The perusal of record reflects that there is a controve rsy regarding the
applicability of two section's of Specific Relief Act i.e. sections 8 and 9. According to
plaintiff/appellant he has filed a regular suit under section 8 of the Specific Relief Act as it
reflects from title and prayer clause of the suit; whereas the defendants/respondents in their
written statement did not raise objection with regard to applicability of either sections of the
Specific Relief Act, however; the trial Court at its own found/treated the suit to have been filed
under section 9 of the Specific Relief Act and thereby dismissed the suit by holding the same to
be barred by time. So, to better understand the controversy let the title and the prayer clause of
the plaint be produced: --
"SUIT UNDER SECTION 8 OF THE SPECIFIC RELIEF AC T 1877 FOR
POSSESSION OF IMMOVABLE PROPERTY KNOWN AS PLOT NO. C -386 HITE".
Therefore, it is most respectfully prayed that a judgment and decree may kindly be passed
in favour of the plaintiff and against the defendants with the declaration that the canc ellation of
Plot No. C -386 HITE is illegal, void ab initio and inoperative as against the rights of the plaintiff
and that the plaintiff has been illegally dispossessed from Plot No. C -386 HITE, Hub.
It is further prayed that the possession of the suit -land may graciously be restored to the
plaintiff.
It is further prayed that damages in the tune of Rs. 200 million in lieu of possession may
kindly be granted to the plaintiff.
It is further prayed that defendants may graciously be permanently restrained from
interfering with the quiet possession of the plaintiff of Plot bearing/known as No. C -386 in any
manner whatsoever.
Any further relief deemed fit in the circumstances and costs of the suit may also be
granted to the plaintiff.
Bare perusal of the above reproduced title and prayer clause of the suit, leaves no room
for doubt that in fact the suit absolutely falls under section 8 of the Specific Relief Act. The basic
difference between the two sections lies i.e. in case of former the plaintiff seeks possession after
having been dispossessed against his consent otherwise than due course of law. A summary
procedure is to be adopted by the trial Court in case of dispossession of a plaintiff against the
consent and otherwise than due course of law within six months from filing of the suit. In
summary suits under section 9 of the Specific Relief Act the right to seek possession is subject to
previous possession of plaintiff irre spective of his title or entitlement of retaining possession on
the basis of a valid, legal and competent title. The basic object, philosophy, theme and logic
behind section 9 of Specific Relief Act is to undo the phrase i.e. "Might is Right". To allow
forcible, un -authorize and illegal dispossession and to compel a party to seek possession by
establishing his title through a regular suit would encourage the land grabbers and mighty people
to occupy any property by force otherwise than due course of law and against consent of the
person in possession and thereby to throw a challenge to aggrieved party by saying "I am in
possession prove your title and do your worst".
7. In our opinion, the legislature by engrafting section 9 to Specific Relief Act, appears to
have achieved two aims simultaneously firstly by providing speedy, simple, effective and
efficacious remedy to an aggrieved party and secondly empowered and entitled the Civil courts
to redress a wrong immediately without observing the protracted and l engthy procedure provided
for a regular suit. As observed herein above the suit filed by the plaintiff absolutely falls within
the domain of section 8 of the Specific Relief Act, as it reflects from title, contents and the nature
of the relief prayed for. Similarly, there is no cavil to the legal proposition that a decree passed in
a suit filed under section -9 of the Specific Relief Act is not a bar to either party for maintaining a
regular suit seeking possession by way of establishing a legal, valid and c ompetent title. It is
quite strange how the trial Court concluded that the suit falls under section 9 of the Specific
Relief Act because there is no specific plea in the written statement to such effect, secondly the
trial Court did not frame a particular issue to determine as to whether the suit falls under section
9 or 8 of the Specific Relief Act. Thirdly; this, case was remanded to the trial Court by this court
by way of disposing of R.F.A No. 69 of 2011 on 6th November, 2012, as there is no dispute to
the legal proposition that there is no scope of appeal against the decrees passed in a suit filed
under section 9 of the Specific Relief Act because the section itself imposes a bar on appeal
meaning thereby no question nor any occasion for the attraction or application of section 9 of the
Specific Relief Act. However, this legal situation too did not prevail upon the trial Court,
therefore, without commenting on merits of the case, we are inclined to accept the appeal, set
aside the impugned judgment and d ecree dated 19th March, 2013 passed by the Senior Civil
Judge, Hub and remand the case to the trial Court with direction to proceed with the matter in
accordance with law by adhering to the provisions of Order XIV, Rule 2, C.P.C. as
contemplated by our ear lier order dated 6th November, 2012.
AG/38/Bal Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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