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Civil Revision Application No.272 of 1980, heard on 10th March, 1987.

--S.115 & O VII , R.11--Karachi Development Authority order (5 of 1957), Art .131--Suit for possession of quarter allotted by Authority- Trial Court decreeing suit but First Appellate Court reversing judgment and decree--Reversal of judgment and decree of Trial Court by Appellate Court found to be based on absolutely perverse approach to issues and evidence on record---Appellate Court, under issue relating to fact whether allotment was obtained by applicant from Authority by misrepresentation and fraud, finding that as the allotment was in nature of licence, suit was barred under Art.131 of the Order, 1957 and with regard to another issue while holding that valuation of suit put by plaintiff was not correct, failing to fix correct valuation on which court-fee was to be paid and holding that suit should have been dismissed on ground of under valuation--Reasons given by Appellate Court for reversal of findings of Trial Court on other issues found to be devoid of any logic--Revision applications accepted, judgment and decree of Appellate Court set aside and judgment and decree of Trial Court restored--Facts that after order of Appellate Court and before filing of present revision application, the property in suit was regularised in favour of deceased respondent and after his death same was entered in names of his heirs who had further sold it during pendency of present proceedings, held, could not defeat pending proceedings and respondent would be at liberty to seek appropriate remedy in that regard as might be available to him under the law.

H. A. Jaffri for Applicant.

Obaidur Rehman for Respondent.

Date of hearing: 10th March, 1987.

This Revision Application under section 115, C.P. C. is filed by the plaintiff /applicant challenging the judgment and decree passed by the 1st Appellate Court on the appeal of respondent on 31-5-1980.

The applicant instituted Suit No.1740 of 1967 against the respondent alleging that Quarter. No.64/22-II-G, North Karachi Township, Karachi was allotted to him by the K.D.A. in lieu of his Jhuggi which he had in Jacob Lines, Karachi. That he started living in the said quarter with his mother, sister and brother. That after some time the mother of applicant went to Peshawar to live there on account of transfer of applicant's uncle and as the applicant could not live alone in the quarter, the uncle of applicant arranged with his friend the deceased respondent to live with him in the said quarter till such time the applicant's mother returned from Peshawar. The deceased respondent accordingly started living with the applicant from March, 1966. That the applicant left the quarter in suit in March, 1967 for the purpose of his studies as he was preparing for his 2nd year examination and started living at Qasimabad in the house of his mother's sister. That applicant finished his examination in May, 1967 and applicant's uncle was also transferred to Karachi in May, 1967. That applicant's mother also came back to Karachi on 9th June, 1967. The applicant accordingly asked the deceased-respondent to vacate the quarter but he refused to vacate the same. The deceased-respondent also approached K.D.A. to get the allotment of Quarter changed in his name. On these allegations the applicant prayed for a decree of possession against the deceased-respondent. The suit was resisted by the deceased-respondent who pleaded that the allotment of the quarter in dispute was obtained by the applicant by fraud and misrepresentation from K.D.A. and that he had purchased this quarter from the plaintiff for valuable consideration. It was also pleaded that the plaint in the suit was under valued. The trial Court framed the following issues on the basis of the controversies between the parties:-

(1) Whether the plaintiff has obtained allotment of quarter No.64/22-11-G North Karachi Township from the K.D.A. by fraud and misrepresentation

(2) Whether the plaintiff has paid proper court-fee on the suit

(3) Whether the defendant has purchased quarter No.64/22-11-G, New Karachi from the Plaintiff for valuable consideration if so what is its effect

(4) Whether the defendant has constructed an additional room in the quarter in suit if so when and under what authority

(5) Whether the plaintiff lived in the quarter in suit

(6) Relief

All the above issues were decided in favour of applicant by the trial Court and accordingly the suit was decreed in favour of applicant. On appeal the learned 1st Appellate Court reversed the judgment and decree of the trial Court and dismissed the suit of the Plaintiff /applicant.

I have heard the learned counsel for the parties at length and I regret to say that the reversal of the judgment and decree of the trial Court by the 1st Appellate Court is based or absolutely perverse approach to the Issue and the evidence on record. A discussion on Issue No.1 in the judgment oft Appellate Court will show that it has no relevance to the issue. The issue related to the fact, whether the allotment was obtained by the applicant from K.D.A. by misrepresentation and fraud, whereas the learned 1st Appellate Court found under this issue that as the allotment in favour of applicant was in the nature of a licence the suit is barred under Article 131 of K.D.A. Order. Similarly on Issue No.2 the 1st Appellate Court while holding that valuation of suit put by the plaintiff /applicant at Rs.1,850 was not correct, failed to fix the correct valuation of the suit on which court-fee was to be paid by the appellant but held that the suit should have been dismissed on the ground of under -valuation: If the learned Judge would have cared to read the provisions of Order 7 Rule 11, C.P.C. he would have certainly reached the account of under valuation, unless the correct valuation was fixed by the Court and the plaintiff was called upon to pay the deficit court-fee but he failed to pay the same. The learned counsel for the respondent contends that according to evidence on record if the quarter was sold in instalment, the valuation was fixed by K.D.A. at Rs.3,600 and at least the suit should have been valued at this amount. The learned counsel for the applicant on the other hand rightly contended that the respondent in his own evidence claimed that he allegedly purchased the quarter in suit for Rs.1,000 only while in the allotment issued to applicant the price of quarter was shown as Rs.1,850 and in these circumstances the acceptance of the market value of the quarter at Rs.1,850 by the trial Court was fully justified. The learned 1st Appellate Court similarly while disagreeing with the trial Court on issues Nos.3, 4 and 5 which he took up together totally ignored the evidence on record and the reasons given by the trial Court for deciding these issues in favour of applicant. The reasons given by the learned, 1st Appellate Court for reversal of the findings of trial Court on these issues are devoid of any logic and reason. For instance, the learned Judge held that the finding of trial Court that the allotment order was not obtained by the applicant from K.D.A. by misrepresentation and fraud was of no help to him as in his view a valuable right of regularization accrued in favour of deceased respondent under the resolutions of the governing body of K.D.A. which were produced as Exhs.5-B and 5-C. The aforesaid resolutions of the K.D.A. referred by the learned 1st Appellate Court relate to the regularization of the possession by the occupant, of quarters generally and had not reference to the case of deceased respondent who was found to be a licensee of the applicant by the trial Court. Apart from it, the learned 1st Appellate Court failed to notice that the K.D.A. itself had directed the parties in the suit to get the dispute settled through a competent Court of law and in these circumstances I fail to understand, how the respondent could take advantage of the resolutions referred by the 1st Appellate Court. The learned 1st Appellate Court lastly reached the conclusion that there was no saleable interest of the applicant in the property and as such there was no necessity of having any written agreement of sale in respect of the quarter in suit. The above reasoning by the learned 1st Appellate Court is self contradictory and was arrived at by ignoring completely the discussion of evidence by the trial Court in this regard. The reversal of the findings of trial Court on the above issues by the 1st Appellate Court was based on a totally perverse approach. I accordingly accept this Revision Application, set aside the judgment and decree of the 1st Appellate Court and restore the judgment and decree of the trial Court. It may be mentioned here that during the course of the argument, the learned counsel for the respondent orally stated that after the order of the 1st Appellate Court and before filing of the present Revision application the property in suit was regularised in favour of the deceased-respondent Khursheed Ali on the basis of the appellate Court's judgment and after his death the same was entered in the names of his heirs who have further sold it during the pendency of these proceedings. These facts cannot defeat the pending proceedings and the appellant will be at liberty to seek appropriate remedy in this regard as may be available to him under the law. The cost of this Revision will be borne by the respondents.

S.Q./M-180/K Application accepted.

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